TorteDeForm

Justinian Lane

Should we rethink the enforceability of “clickwrap” agreements?

If you’ve ever bought or downloaded any software, you’ve likely had to click that you agreed to the terms of a licensing agreement.  And if you’re  like most people, you never read the terms of the agreement.  That means you probably have no idea what you agreed to.  For example, 7,500 shoppers at an online website agreed to give their immortal soul to the website.  Shoppers were given the choice to opt out of the immortal soul clause, and if they did, the vendor offered to give the shoppers a cash voucher: 

Thousands of shoppers unknowingly signed their souls over to a computer-game store after failing to read the terms and conditions on their website.
GameStation added the "immortal soul clause" to online purchases earlier this month stating customers granted them the right to claim their soul.
While all shoppers during the test were given a simple tick box option to opt out, very few did this, which would have also rewarded them with a £5 voucher.

Source: 7,500 shoppers unknowingly sold their souls - Odd News | newslite.tv

Considering how few people actually read these agreements, should we reconsider whether or not courts should enforce them? 

Justinian Lane: Author Bio | Other Posts
Posted at 4:12 PM, Apr 15, 2010 in Civil Justice
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Comments

I was recently helping one of my law professors with some new software. When it came time to accept the EULA, I settled back in my chair, expecting to have to wait for her to read it. She is a *contracts* law professor after all. To my disbelief, she clicked through without glancing or even scrolling through the agreement. If law professors don't read these agreements, how can we ever expect normal people to do so?

Posted by: Laura Bergus | April 15, 2010 4:31 PM

Thanks for that story, Laura. I tend to agree that it seems unrealistic to expect people to read these agreements - especially on free or cheap software.

Posted by: Justinian Lane | April 15, 2010 5:27 PM

I agree that we need to review the enforceability of these types of agreements. However, its not surprising that most people don't read them. When you do read them you will find that for the most part you are not giving up any major rights, if any, and when you do have to give up something major, the court will strike it down. I cannot think of the name off the top of my head, but in Contracts I read a case in which Gateway's agreement was that you agreed to arbitration in France or something like that. Court struck it down.

Posted by: pscrawfo | April 15, 2010 8:37 PM

I agree that consumers generally aren't giving up anything major. Usually it's just arbitration clauses and forum selection clauses. But considering that there ARE ways to make consumers more likely to read them, maybe we should reconsider generic clickwraps.

I made an online transaction recently that made me type my initials next to four or five important paragraphs, then type out "I have read and agree to this contract" or something similar. Perhaps something like that should be required for enforceability.

Posted by: Justinian Lane | April 16, 2010 12:26 PM