RE: Consideration in a Shrinkwrap Contract

I believe that, in such situations, the "manifestation of acceptance" is proceeding to install the software after clicking "OK" on the license provisions. From that viewpoint, the customer does indeed have the opportunity to view (if not the obligation to actually read) the license terms before manifesting acceptance. He can always click no, abort the install process, eject the disk, put it back in the box and return it to the store. Careful consumers do this all the time, right?

Robert C. Cumbow
 Graham & Dunn PC
 1420 Fifth Avenue, 33rd Floor
 Seattle, WA 98101-2390
 206.340.9619
 206.340.9599 fax
 rcumbow[_at_]grahamdunn.com
 http://www.grahamdunn.com  

        Big law firm experience
> without the big law firm experience®

-----Original Message-----
From: rclifford[_at_]snesl.edu [mailto:rclifford[_at_]snesl.edu] Sent: Wednesday, October 11, 2000 10:54 AM To: Multiple recipients of list
Subject: 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




CONFIDENTIALITY NOTICE
This email message may be protected by the attorney/client privilege, work
product doctrine or other confidentiality protection. If you believe that it
has been sent to you in error, do not read it. Please reply to the sender
that you have received the message in error, then delete it. Thank you.