Trakman, Leon --- "The Boundaries of Contract Law in Cyberspace" [2009] UNSWLRS 13

Last Updated: 19 April 2009

The Boundaries of Contract Law in Cyberspace

Leon Trakman, University of New South Wales

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Citation

This article was published in Revue de droit des Affaires Internationales (RDAI) / International Business Law Journal / (IBLJ), N° 2, 2009 by Sweet & Maxwell.

Abstract

This article evaluates the extent to which the traditional policy of deterrence that regulators and courts historically applied to so-called adhesion contracts are extended to “new” classes of 21st century cyber-consumers in our consumer-centric era. Concentrating on the law of unconscionability in jurisdictions like California and New York, it considers how courts treat cyber-consumers who resell goods and services, engage in repeat order transactions, and exercise market choice. Exploring the judicial treatment of unconscionability in box-wrap, shrink-wrap, click-wrap17 and browse-wrap18 contracts, not limited to cyber-commerce, it explores judicial conceptions of “bargaining naughtiness” leading to procedural unconscionable, and “evils lurking” in “wrap” contracts giving rise to substantive unconscionability. It juxtaposes the view that “wrap” producers purposefully deny cyber-consumers the opportunity to review onerous conditions against the reality that many consumers choose not to read the fine print because it is uneconomic for them to do so.