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APA Paper - Contract Law

Hines sued Overstock.com claiming their browse-wrap agreement was unenforceable. Browse-wrap agreements require notice of terms for a user to be bound, but the court found Overstock failed to provide a link to terms in a noticeable way. Specifically, Overstock claimed website use alone constituted acceptance, but the court said this did not amount to actual notice required to enforce a browse-wrap contract.

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92 views4 pages

APA Paper - Contract Law

Hines sued Overstock.com claiming their browse-wrap agreement was unenforceable. Browse-wrap agreements require notice of terms for a user to be bound, but the court found Overstock failed to provide a link to terms in a noticeable way. Specifically, Overstock claimed website use alone constituted acceptance, but the court said this did not amount to actual notice required to enforce a browse-wrap contract.

Uploaded by

AL-HAMD GROUP
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Hines vs. Overstock.com Inc.: The Case of Hidden Restocking Fee

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Hines vs. Overstock.com Inc.: The Case of Hidden Restocking Fee

The basic element for a

contract to be binding is mutuality.

This implies “meeting of the minds”

when the parties intend to create a

binding contract. Offer and

acceptance is another basic doctrine

that makes a contract binding where

one party offers something valuable

(i.e. consideration) to the other party that is free to accept or refuse the offer (Stim, 2014).

The capacity of the parties and the legality of the contract are other essential tenets for a

binding contract.

Click-wraps are commonly used agreements when forming a contract online. They

require the user’s assent to the vendor’s terms and conditions typically by clicking “I agree”.

A dialog box displays all of the terms that the user needs to look through before agreeing to

them (Thakur, 2019). Other commonly witnessed web-based contracts are browse-wrap

agreements in which terms and conditions are usually provided as a hyperlink at the end of

the homepage typically. Normally, such contracts don’t require an explicit acceptance of the

terms and conditions. Presumably, the user is considered a regular visitor of the site; hence

well aware of the agreement.

For a browse-wrap agreement to be enforceable by the law, it is required that the

website furnishes an actual or constructive notice of the terms and conditions to which the
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user gives his/her consent (Fletcher, 2019). Such agreements usually state that the use of the

website itself indicates the acceptance of the terms. Hence, the courts mainly take into

account if the user had any constructive or actual familiarity with the site’s terms. In general,

courts uphold browse-wraps when a user is given actual notice of the contract.

The court declared browse-wrap agreement of Overstock.com Inc. unenforceable

owing to the website’s failure to provide the link to an online agreement in a way that a user

would easily notice (Fletcher, 2019). Overstock.com Inc. stated that merely entering their

website represents the user’s acceptance of site terms and conditions which didn’t amount to

actual notice.
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References

Fletcher, G. (2019, June 12). Are my browsewrap agreements enforceable? PactSafe.

https://www.pactsafe.com/blog/are-my-online-agreements-valid-part-3-browsewrap.

Thakur, A. (2019, September 26). ALL YOU KNOW NEED TO KNOW ABOUT ONLINE

CONTRACTS. iPleaders. https://blog.ipleaders.in/all-you-know-about-online-contracts/.

Stim, R. (2014, October 30). What Is a Contract? www.nolo.com.

https://www.nolo.com/legal-encyclopedia/contracts-basics-33367.html.

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