Diverging Perspectives on Electronic Contracting in the U.S. and EU

The focus of this Article is the interrelated set of issues that have arisen, on one hand, from Internet transactions regarding the downloading of free or purchased software, as well as other Internet sales, and on the other hand, the distinctive transactional problems that modern business practices have created under the rubric of shrink-wrap or terms in the box —a late presentation of terms associated with the sale of computers or the licensing of software (with the terms included in the packaging, rather than presented to the user ahead of time)—but not necessarily confined to those transactions. Such transactions raise novel questions, in part because they frequently involve the sale of new property, and in part because they involve novel ways of contracting, even when the subjects of the contracts are conventional goods and services. At the same time, these transactions can be seen as primarily offering a new twist on a now-standard theme: the problem of unread terms in standard-form contracts. As Clayton Gillette wrote: Consumers who deal with clickwrap, shrinkwrap, or browsewrap contracts are likely to ignore terms provided only on or within product containers, online at the time the goods are ordered, or in containers that arrive with the good subsequent to the time when the goods are ordered. This raises a basic underlying theme of these sorts of transactions: there is something unusual within Contract Law (though by no means unprecedented) regarding the way terms are presented and agreements formed in these transactions