New Internet Technologies To Remedy The Unfairness of Clickwrap Contracts

“Courts do not enforce consumer-proffered online terms as enforceable contractual terms, but they also do not admit that this is what they are doing. Courts instead exclude the consumer preference from the four corners of the online agreement. What the company wrote is “the contract,” and the expression of consumer preference is simply not part of that contract. Courts manipulate the contours of the contractual agreement to exclude expressions of consumer preference in online agreements. If, however, consumers were able to somehow express their preferences unmistakably within the contours of what courts consider to be the online agreement, then courts would have no choice but to recognize consumer-proffered online contract terms. Instead of just clicking “I Agree,” consumers could actually

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