Re: Consideration in a Shrinkwrap Contract

"Cumbow, Robert" wrote:
>
> Now I see the point of difference. I'd hate to think that a court would hold
> that the consumer, having purchased the software and found himself unable to
> return it, would also be precluded from using it, and thus would simply have
> been screwed out of his money. I think most courts tend to be a little more
> consumer-friendly than that. But it's an interesting question that, as far
> as I know, remains unresolved.

This comes I believe from what I think is a mischaracterization of the transaction under the UCC. The perfect tender rule implies that the shrink-wrap license is part of the contract. UCC 2-207 would seem to imply the contrary, in particular in the case of non-merchants (see 2-207(2)).

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