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Acceptance by click-wrap. Further, acceptance can be effected through
‘click-wrap’
agreements. A click-wrap is where the contract is presented in
a window online, and the customer is asked to click an ‘I accept’
(or more
preferably, an ‘Offer’) button to accept (or offer) a contract. Web merchants
of software may prefer this method of acceptance since it forces the consumer
to agree to specific licensing terms. Although English courts have not yet dealt
with click-wrap agreements, a United States District Court in Hotmail
Corporation v Van Money Pie Inc.
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implicitly held them to be enforceable
in America. Based on the similarity of contract doctrine between American
and English law, an English court will probably similarly recognise click-
wrap contracts.
All the above methods of acceptance for on-line merchants have analogs
in traditional commerce. Automated acceptance is found at car parks and
vending machines. As already mentioned, acceptance by delivery is common
practice among mail-order merchants. Click-wrap is similar to reading an
agreement or credit card receipt and signing it, although arguably it does not
have the same ceremonial weight. Therefore, using these acceptance methods
may lessen the possibility of disputes and litigation in electronic commerce.
Consideration
Consideration is the element which typically transforms a mere promise into a
legally binding contract, embodying the common law belief that only bargains
should be enforced.
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It is often defined as the exchange of something of value,
but may also include any detriment to the promisee or benefit to the promisor. In
order for a binding contract to exist, the promisee must pay or give something to the
promisor in return for the assurances, goods, services, or other benefits which he/she
receives.
Historically, English courts have broadly interpreted the consideration
requirement, and often will even ‘invent consideration,’
or regard something
as consideration even though the promisor did not necessarily want it.
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In