On September 25, 2012, Adam Berkson was on a Delta Airlines flight from New York City to Indianapolis. Needing the internet to conduct important business, he flipped open his lap top and followed the log-on instructions on Gogo’s in-flight Wi-Fi service. Between options of $10 for the day or $35 for the month, he clicked the sign-up button for the month, entered his American Express payment information, and was surfing the web within one minute.
A few months later, however, Berkson discovered that Gogo was billing his AmEx card every month—as if he had subscribed—and when he requested a refund, Gogo refused. While AmEx reversed the charges as a customer courtesy, in 2014 Berkson nevertheless banded together with other aggrieved Gogo customers to file a federal class action lawsuit for additional damages. Gogo moved to dismiss the case by citing yet another surprising term on its web site, one providing that all disputes go to arbitration, not litigation.
This case is one of scores of disputes arising from electronic contracts formed on the internet, mostly between consumers and merchants. While billions of dollars change hands amid trillions of Internet transactions, most raising no issue, the novelty, dynamism, and ingenuity surrounding e-commerce and technology produces disagreements about how offers to contract are made, how they may be accepted, and what terms they contain. And while there is ongoing contention about how electronic contracting is or should proceed, the setting vividly shows the remarkable durability and capaciousness of venerable contract doctrine.
Most fundamentally, mutual manifestation of assent is the touchstone of contract formation and an essential element. When there is clearly an offeror and clearly an offeree, then the acceptance of the offer must be unequivocal. Such principles signify that asset and acceptance on line must stimulate a degree of intentionality that many website formation devices lack.
Next, it is common in contemporary commerce to offer and form contracts without negotiation—standard terms on take-it-or-leave bases which are generally referred to as adhesion contracts. In order for traditional principles of assent and acceptance to work, law must assure that offerees at least have an opportunity to review terms if not negotiate them.
Finally, when assent is largely passive, as with electronic adhesion contracts, it becomes more important to probe whether the offeree had notice of the term at issue. Actual notice certainly suffices but inquiry notice would suffice too—that is the offeree need not know the specifics of the term but be on notice to inquiry about it.
A prominent pre-internet illustration is Carnival Cruise Lines, Inc. v. Shute, whre the U.S. Supreme Court held that the terms of adhesion contracts are “subject to judicial scrutiny for fundamental fairness”. In Carnival Cruise, vacationers bought cruise tickets through a travel agent it later received by mail. A legend on the front read, in bold type and all capital letters: “SUBJECT TO CONDITIONS OF CONTRACT ON LAST PAGES IMPORTANT! PLEASE READ CONTRACT ON LAST PAGES 1, 2, 3.” Read More