CONTRACT LAWOffer and Acceptance

and the Problem of Form Contracts

CONTRACT FORMATION

Offer Essential terms Present intent to enter into

agreement• Speculative v. definite• Negotiations/agree to agree v.

agreement• Legal effect? Creates in offeree

“power of acceptance”

Is there an offer?• Example 1: “I am selling my bike.

Do you want to buy it?”• Example 2: “I am selling my blue

bicycle that I have right here for $300 and can deliver it to your house Friday if you give the money in cash then. Do you want to buy it?”

• Example 3: “I may sell my bike for $300 if I move to Australia.”

• Example 4: “If I sold my bike, would you buy it for $300?”

CONTRACT FORMATION

Acceptance Timely

Unequivocal/no conditions

Counteroffers (rejection + new offer)

Communicate outwardly; Silence does not constitute acceptance

Is there effective acceptance? Example 1: “$300 is too much. How

about $275?”

Example 2: “Sure, as long as you include the bike helmet.”

Example 3: “Sure, as long as you include the bicycle seat and the tires.”

Example 4: “Let me think about it.” 2 days later, “I’ll buy it for $300.”

Example 5: “Yes.”

Example 6: You don’t say anything.

Traditional Model of Contracts- Negotiated- Signed

Standard Form Contracts

Industrial Age

Mass production

Standard products

Mass Consumer Goods

-Standard Terms

-Efficiency

-Cost Savings

-Not negotiated/Adhesive

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CONTRACT FORMATION

Another marketplace disruption….

Clickwrap

• RSS - Other News Editions - About Google News - About Feeds - Blog - Help - Terms of Use Google

Browsewrap

Multi-wrap or Hybrid wrap

OFFER AND ACCEPTANCE

Does it matter that standard forms are now digital?

• Adhesive

• No ability to negotiate

• No signing

• Does the form matter?

Rule: Silence does not constitute acceptance.

Clickwraps – ok

But what if there is no click required (e.g. browsewrap)? Or what if it’s not clear what the click is for (e.g. hybridwrap)?

Contracts Require Consent

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Reasonable notice

Manifestation of Consent

Opportunity to Reject

Offer and Acceptance Online

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Wrap Contracts

Hybrid Wrap

Nguyen v. Barnes & Noble

Is there reasonable notice?

Fjeta v. Facebook – Reasonable notice?

Cullinane v. Uber –Reasonable Notice?

Theodore v. Uber –Reasonable notice?

Meyer v. Uber – Reasonable Notice?

Capriole v. Uber –Reasonable Notice?

Kemenosh v. Uber –Reasonable Notice?

What make notice “reasonable”?

Conspicuousness? What makes it conspicuous?

Context?

Specific terms?

How the law responds to changes in society:

Traditional Model

Standard Form Contracts

Digital Contracts

Are more changes required?

Are digital contracts of adhesion really the same as paper contracts of adhesion?

Offer and Acceptance

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THANK YOU

California Western School of Law