Re: Consideration in a Shrinkwrap Contract

I don't think I'd like to live in the world of that example, for a couple of reasons:

The restatement of contracts has ceased to exist (in particular its provisions on voiding terms against public policy, including restrictions on alienation of personal property);
The unconscionability doctrine has been written out of Article 2; An intellectual property license is the same as a contract for the sale of goods (it's not);
and so forth.

As to the questionable acceptance of shrinkwrap, I think the cases speak for themselves. The weight seems to be going the other way at the moment, at least with respect to software. Even if shrinkwrap were unanimoulsy adopted, other bodies of law would limit the terms of those agreements. I can understand not being entirely thrilled with the shrinkwrap concept, but the scenario is simply ridiculous.

Cheers.

-----Original Message-----
From: Ralph Clifford <rclifford[_at_]snesl.edu> To: Multiple recipients of list <cni-copyright[_at_]cni.org> Date: Wednesday, October 18, 2000 8:37 PM Subject: RE: Consideration in a Shrinkwrap Contract

>On Fri, 13 Oct 2000 16:28:59 -0700, Cumbow, Robert wrote:
>>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?
>>
> A new display for the dashboard of a car: "Congratulations on the
>acquisition of your new automobile. By inserting the key in the ignition
>you agree that you have only licensed the car and title to it shall remain
>with Big Motor Company. You agree not to drive the car in any way that
>violates the law. If you do so, all rights you have to the car will
>terminate and you agree to return it to Big Motor Company immediately
>without any compensation owed to you. If you do not wish to accept the
>terms of this license, you can return the automobile to the dealer who, we
>are sure, will happily refund your money. . . ."
>
> Once a deal is done, it is done. The consumer purchases the
>software. If the software company wants to modify this deal, it must
>establish that the contract of purchase was properly modified, including
>offer, acceptance and new consideration. Using a shrinkwrap or clickwrap
>"license" has questionable acceptance and a complete lack of new
>consideration.
>--
>Ralph D. Clifford
>Professor of Law
>S. New England School of Law
>
>
Received on Thu Oct 19 2000 - 01:06:44 GMT