Wrap Contracts
Foundations and
Ramifications
Nancy S. Kim
When you visit a website,
check your email, or download music, you enter into a contract that you
probably don't know exists. "Wrap contracts" - shrinkwrap, clickwrap
and browsewrap agreements - are non-traditional contracts that look nothing like
legal documents. Contrary to what courts have held, they are not "just
like" other standard form contracts, and consumers do not perceive them
the same way. Wrap contract terms are more aggressive and permit dubious
business practices, such as the collection of personal information and the
appropriation of user-created content. In digital form, wrap contracts are
weightless and cheap to reproduce. Given their low cost and flexible form,
businesses engage in "contracting mania" where they use wrap contracts
excessively and in a wide variety of contexts. Courts impose a duty to read
upon consumers but don't impose a duty upon businesses to make contracts easy
to read. The result is that consumers are subjected to onerous legalese for
nearly every online interaction.
In Wrap Contracts:
Foundations and Ramifications, Nancy Kim explains why wrap contracts were
created, how they have developed, and what this means for society. She explains
how businesses and existing law unfairly burden users and create a coercive
contracting environment that forces users to "accept" in order to
participate in modern life. Kim's central thesis is that how a contract is
presented affects and reveals the intent of the parties. She proposes doctrinal
solutions - such as the duty to draft reasonably, specific assent, and a
reconceptualization of unconscionability - which fairly balance the burden of
wrap contracts between businesses and consumers.
