Re: Consideration in a Shrinkwrap Contract

On Sun, 8 Oct 2000 11:15:52 -0400, John Noble wrote:
>At 4:45 PM -0400 10/5/00, Ralph Clifford wrote:
>> While this might be true under the UCC, it is only the case
>>because of
>>section 2-204(3). This same rule does not apply under the common
>>law;
>>instead,
>>if a material term is missing under the common law, the contract
>>fails
>>because of
>>indefiniteness. Consequently, even if you assume that the parties
>>have an
>>understanding that the contract would be a license, it would fail
as
>>indefinite
>>as they failed to define the material terms and conditions.
>>Licenses are
>>common
>>law contracts, not UCC contracts.
>
>Why do you assume they failed to define material and conditions?
>

  I don't believe that a party can have reached an agreement on terms that are unavailable prior to the manifestation of acceptance. While the software developer may know the terms of the "license," the consumer did not and, as it is contained within the package, cannot.

--
Ralph D. Clifford
Professor of Law
S. New England School of Law