Web Contracts Basic Principles of Contract Law Offer Acceptance Considerationbargained for exchange Caveats Lawful purpose not violate public policy Terms certain and definite good faith negotiations ID: 386516
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Chapter 21
Web ContractsSlide2
Basic Principles of Contract Law
Offer
Acceptance
Consideration-bargained for exchangeCaveats-Lawful purpose, not violate public policyTerms certain and definite, good faith negotiations
PgP BUSA331 Chapter 21
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Types of Contract
Bilateral-2 promises
Unilateral-irrevocable once performance begun
Implied-in-fact-accepted by certain actsPromissory estoppel-rely on promise-Yahoo reneged on promiseAmbiguities construed against contract drafter
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Affirmative Defenses
Contract not formed
Unenforecable contract
Performance dischargedPgP BUSA331 Chapter 21
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Public Policy Affirmative Defenses
Duress
Undue Influence
FraudCapacityIllegalityUnconscionabilityStatute of FraudsWritten contract for certain interests
Must be signedPgP
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Contract Discharge
Parties Agreement
Operation of Law
Impossibility of PerformanceFrustration of PurposePgP
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Remedies
Equitable-rescission, restoration, reformation, declaratory judgment
Legal-damages-expectation, reliance, restitution
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Assignment and Delegation
Assignment-Transfer of some or all of contract rights
Delegation-transfer of the duties
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Electronic Signatures
Technology and the courts
GA court would not accept faxed signature (1996)
Chirps not a writingPgP BUSA331 Chapter 21
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Uniform Electronic Transactions Act
Adopted by 46 states, with variations
Signature may not be denied legal effect solely because it is in electronic form
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E-SIGN Act
Electronic Signatures in Global and National Commerce Act-2000
Federal law that allows UETA to preempt
Does not apply to wills, family law…foreclosure, evictionCan be a click of the ‘I Accept’ button
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Emails as a Signed Writing
Series of emails construed as contract by NY court
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Shrink-Wrap Agreements
Controversial, because not visible
But ok if notice on outside?
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Click-wrap Agreements
Usually enforceable because agreement is visible
AOL got in trouble for having button part way through 91 page agreement
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Browse-Wrap Agreements
Viewed online, no action required
Example web site terms and conditions
Some courts allow, majority do notPgP BUSA331 Chapter 21
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ISP Contracts
Usually very broad
Reserve right to change without notice
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Notification of Changes
Notification of contract change is required
Is posting contract changes on web site adequate notice, without direct contact like email? Ninth circuit says no
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Unilateral Contracts
Blockbuster shared members’ rental history with Facebook under Beacon program
Terms of Use usually contain a clause granting the service provider a unilateral right of modification
Federal Court in Texas, 2009, ruled Blockbuster click-wrap provisions were illusory and unenforceableImplications could be profound
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Web Site Development Agreements
See
pages
459-460Many clauses listed that should be consideredPgP
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