Saturday, August 11, 2007

Committee Forum: Website Agreements -- I Didn't Agree to Those Terms, Did I?

The Committee continued its long-standing leadership in the electronic contracting arena. After our groundbreaking articles on Click-Through Agreements and Browse-Wrap Agreements, it was time to revisit some new topics that we've seen bouncing around in recent years.

After spending some time in reviewing the prior scholarship, Chris Kunz, Kathy Porter and Juliet Moringiello went over recent cases involving modifications and amendments to contracts done via electronic means. The cases are still in flux, but we see trends that tell us that principals of 'notice' and basic fairness still apply. The biggest sit-up-and-take-notice moment was discussions of a growing trend in a number of states that find that terms in a contract that allow amendment by unilateral postings on a web site may not only be unenforceable on their own, but might even go so far as to cause the original underlying contract itself to be voided!

Eran Kahana and John Ottaviani spoke on the recent discussions (and very thin case law) regarding 'bots' and their abilities to enter into contracts. While it is pretty clear that 'bots' are recognizable players in a contracting situation, we still wait to see how far the courts are willing to let those things play out.

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