Juliet Moringiello, ‘Notice, Assent, and Form in a 140 Character World’

This essay is a contribution to a symposium on Professor Nancy Kim’s terrific book, Wrap Contracts: Foundations and Ramifications. In the book, Prof Kim examines this explosion in volume of online contract terms and offers some suggestions for improving the judicial approach to these terms. Despite the ease of presenting online terms in a visually appealing format, today’s electronically presented terms are even less comprehensible than those of fifteen years ago. At the same time that individuals have become accustomed to receiving information in small doses due to the proliferation of social media platforms such as Twitter, Instagram, Facebook and the practice of text messaging, online terms have become more voluminous. Rather than using the online format to make their terms more appealing to the reader, purveyors of online terms are offering terms that are not only less readable because of their volume, but that include provisions that few people would expect to be contained in contracts of the sort being offered.

Professor Kim’s emphasis on the importance of form may be the most significant contribution of her book. Although she makes many important observations in her book, this essay focuses on three related observations. The first relates to the voluminous nature of online terms. Unhindered by the limitations of the paper form, websites engage in what Professor Kim dubs “contracting mania”, which leads them to “stuff their online contracts with many pages of terms”. She then explains that these extra terms include those that are different from terms offered in physically limited paper forms, and include “crook” terms that purport to appropriate “benefits ancillary or unrelated to the transaction”. Both of these characteristics render online terms less readable than paper terms, yet courts, in finding that an individual has notice of online contract terms, have substituted “notice of notice” for notice of the purported contract terms.

In this essay, I will briefly discuss the role of the relationship between notice and assent in standard form contracting and then turn to some of the recent cases addressing the enforceability of online terms. This discussion will illustrate that although courts have wisely avoided making entirely new law for online contracts, they have largely ignored the “term creep” that has made online terms less, rather than more, readable.

Moringiello, Juliet M, Notice, Assent, and Form in a 140 Character World (August 4, 2014). Southwestern Law Review, forthcoming; Widener Law School Legal Studies Research Paper No 14-20.

First posted 2014-09-05 05:15:13

Leave a Reply