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Toronto Computers Lawyers GroupThe Year in Review2005-2006
Barry B. SookmanSeptember 26, 2006bsookman@mccarthy.ca
McTet2 #3688343v1
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Web Wrap Agreements
Dell Computer Corporation c. Union des consommateurs
2005 QCCA 570
Advertisement of computers at a low price on Dell’s website which proved to be an error.
The Dell Terms of Sale indicated disputes would be settled by arbitration under the Arbitration Rules of the National Arbitration Forum (“NAF”), accessible by hyperlink from Dell’s website.
Under Quebec Civil Code Art. 1435. “An external clause referred to in a contract is binding on the parties. In a consumer contract or a contract of adhesion, however, an external clause is null if, at the timeof formation of the contract, it was not expressly brought to the attention of the consumer or adhering party, unless the other party proves that the consumer or adhering party otherwise knew of it.”
The arbitration clause was not enforceable because Dell had not proven that Dumoulin knew of it at thetime of the formation of the contract.
The notice drawing attention to Dell’s standard Terms of Sale was in small print, at the bottom of the page which required at least three ‘clicks’ to reach.
The website did not have a window displaying the arbitration provision, which the user had to accept before making his purchase. The consumer was required to visit the NAF website.
Dell had to demonstrate that at the time of sale the consumer knew of the content of these two
external clauses
: the arbitration clause and the NAF Arbitration Rules.
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Web Wrap Agreements
Hubbert v. Dell Corp
. 835 N.E. 2d 113 (Ill. App. 5 Dist. 2005)
“We find that the online contract included the “Terms and Conditions of Sale.”
The blue hyperlink entitled “Terms and Conditions of Sale” appeared onnumerous Web pages the plaintiffs completed in the ordering process and onDell’s marketing Web pages. “Common sense dictates that because the plaintiffs were purchasing computers online, they were not novices whenusing computers. A person using a computer quickly learns that moreinformation is available by clicking on a blue hyperlink.”
Additionally, on three of Dell’s Web pages that the plaintiffs completed tomake their purchases, the following statement appeared: “All sales aresubject to Dell's Term[s] and Conditions of Sale.” “This statement would place a reasonable person on notice that there were terms and conditionsattached to the purchase and that it would be wise to find out what the termsand conditions were before making a purchase.”
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