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Searching for Assent:The Absence of the Meeting of the Minds inOnline Wrap Agreements
Jessica DobiasCyberspace LawProfessor Sorkin
http://www.NoMeetingoftheMinds.com
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Terms of Service AgreementAgreeI agree I will:I agree I will:On TimeLateEarlydistributeshipSelect One
Earlymy first born child.my first born child.
http://www.NoMeetingoftheMinds.com
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Terms of Service AgreementDistributeUPSShipFirst BornChildAgreeOn Time
http://www.NoMeetingoftheMinds.com
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Terms of Service AgreementI will agree to distribute and ship my first born child on time.
Instructions:
Copy the Following Statement and PressAgree to Consent to the Terms of ServiceAgreeI will agree to distribute and ship
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Introduction
Before the development of currency, ancient tribes wandered the terrain bartering andbargaining for necessities and commodities like food, shelter, furs and technologies. The conceptof a bargain or trade between two parties dates back to the beginning of humankind. The EnglishCommon Law codified the concept of a bargain or trade between two parties into what today isknown as the modern day contract.From the English Common Law understanding of a contract, three principles remainsupreme. A contract requires an offer, an acceptance, and consideration. In order for any contractto be valid, the parties must come to “a meeting of the minds”. In other words, the parties bothare given the opportunity to bargain for the terms of the contract and assent to those terms.Today contracts exist in all forms and the common law principle of a “meeting of theminds” is challenged when the courts are asked to decide cases involving shrink wrap, clickwrap, and browser wrap agreements. Is there a meeting of the minds in online contractualagreements, which sometimes provide assent through merely using an online service, like anemail service or social networking site? Is there a meeting of the minds when a user fails to readthe terms of the contract and merely clicks the “I agree” check box when installing software orusing an online service? How can there be assent when one of the contracting parties never readthe terms of the contract and never viewed the contract?The modern theory of the Objective Theory of Contracts requires that two partiesmutually assent to the terms of a contract.
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Consent in a wrap contract will be either perfected orunperfected.
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A perfected contract means the parties mutually assented, while an unperfected
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Leon E. Trakman,
The Boundaries of Contract Law in Cyberspace
, 38 Pub. Contract L.J. 187,223 (2008).
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2contract means the consent was either absent or flawed.
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Unperfected contracts are either curableor incurable.
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Despite public policy concerns that courts should not make contracts, courts maychoose to cure or perfect an unperfected contract by enforcing “gap filling” like good faith,implying reasonable terms based on a party’s trade usage, operations of law or party practice.
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Courts may also choose not to perfect an unperfected wrap contract by holding there is noreasonable assent to the conditions and the contract is unenforceable.
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Inevitably, the court willdecide that mutual assent is present or not and therefore the contract is enforceable or not.
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Despite whether there is a meeting of the minds, the courts have a lot of discretion indetermining if a contract is enforceable or not. But are wrap licenses generally enforceable?
What Are Shrink Wrap, Click Wrap and Browser Wrap Agreements?
There are three types of common wrap agreements or licenses. These include shrink wrapagreements, click wrap agreements, and browser wrap agreements. A shrink wrap agreement isan agreement written on the outside of a software box enclosed in shrink wrap. The shrink wrapagreement state when a user tears open the shrink wrap surrounding the software, he or she isconsenting to the terms of the agreement. Shrink wrap agreements are often associated with anEnd User License Agreement or EULA. EULAs are licenses given to users of media andsoftware and state prohibitory and permissive use for the media or software.Click wrap agreements are another form of an EULA. Click wrap agreements are mostcommonly displayed to users who wish to install software on their computer. The click wrap
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