Re: Consideration in a Shrinkwrap Contract

Don't you find this result absurd? You pay your money for software, then see the shrink-wrap license. You decline and ask for your money back. As is common these days, you do not get your money back. Your only recourse is to sue. You cannot use the software because you did not agree to the terms, but you can't economically get your money back either.

Obviously, many of us here probably would sue - I know I would. But that is because many of us here are attorneys. What about the 99% of the population who are not licensed to practice law?

Logically, this scenario does not make sense. If agreement to the shrink-wrap license is the consideration for using the software, then what did you buy when you paid for the software at the store?

Brad Englund wrote:
> I disagree. In Brower v. Gateway 2000, Inc., 246 A.D.2d 246, 250, 676 N.Y.S.2d
> 569 (1998), the court held that a shrink-wrap contract between the parties was
> not formed until after the period had run to return the merchandise. Thus, if a
> consumer attempts to return the software and the store refuses to return the
> money, no contract ever formed. Which means that the sale fails for lack of
> consideration. Alternatively, a contract has been formed, but the vendor has
> violated the perfect tender requirement, and the consumer can refuse tender of
> the software.

Well, then I guess the money you spent on the software is irrelevant under this decision. Only an attorney would be able to argue this with a straight face.  

> In either case, consumer can sue to get his or her money back. However, the
> consumer cannot use the software in violation of the shrink-wrap agreement
> (except, perhaps, in a "cover" situation). Using the software after the store
> refuses to return the money (except in a cover situation) may be considered
> "acceptance" of the software. In that event, the consumer's sole remedy will be
> to sue for the damages caused by the imperfect tender (i.e, those damages that
> flow from the license terms that prohibit a use that the consumer intended).

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Bruce E. Hayden                      bhayden[_at_]acm.org
Phoenix, Arizona                     bhayden[_at_]ieee.org
                                     bhayden[_at_]copatlaw.com