4 - Shrinkwrap, clickwrap and browsewrap contracts

Summary

Online commerce, local and global, has become commonplace in the past two decades. Numerous traders have embraced the new opportunities by creating global meeting places and auction houses such as eBay and amazon. The sale of software, cars, travel, books, music and videos are just some of the many commercial transactions carried out in cyberspace. More than a trillion dollars in trade is transacted online annually. The online contracts are typically entered into without paper, without the use of a pen and without the use of the spoken word. This chapter examines cases known as the shrinkwrap, clickwrap and browsewrap cases, which have explored how contracts may be entered into and how conditions may be incorporated into the transaction. This chapter also mentions contracts entered into by electronic agents.

Accepting terms and conditions by conduct, notice or click of the mouse has raised questions reminiscent of the contract cases known as the ticket cases. The typical ticket case scenario arises where a person is handed a ticket – for example, for train travel, parking or dry cleaning. The ticket may state that the holder is subject to terms which the holder may have had little or no chance to read, negotiate or agree. The courts have been required to determine the point of time at which these contracts are entered into and their terms and conditions. The starting point has been determining which terms are to be incorporated into the contract.