Enforceability as A Contract Essay

Issue: Online retailers and service providers frequently have a variety of agreements that consumers must consent to, including purchasing terms, privacy policies, etc. Consumers or site users typically must click a box indicating their agreement to the terms listed.

Address the following issues:

·         Using what you know about the required parts of a contract, do these agreements constitute an enforceable contract? Address each contract requirement and whether this type of agreement meets each requirement. Explain in detail.

·         Is there anything that an online platform could do in structuring the agreement to aid in its enforceability as a contract?

Answer:

When assessing whether the agreements presented by online retailers and service providers constitute enforceable contracts, it’s crucial to analyze each contract requirement:

  1. Offer: In online agreements, the terms and conditions, purchasing terms, privacy policies, etc., are typically presented to consumers as part of the checkout or registration process. By displaying these terms, the online platform is making an offer to the consumer to enter into a contractual agreement.
  2. Acceptance: Consumers signify their acceptance of the terms by clicking a box or button indicating their agreement. This action constitutes acceptance of the offer presented by the online platform. However, there may be issues regarding whether the consumer has actually read and understood the terms, especially if they are lengthy or complex.
  3. Consideration: For a contract to be enforceable, there must be an exchange of value between the parties. In the context of online agreements, consideration is typically provided by the consumer in the form of purchasing goods or services from the online retailer or service provider.
  4. Legality: The terms and conditions outlined in online agreements must not violate any laws or public policy. Generally, online platforms include provisions in their agreements to ensure compliance with applicable laws and regulations, such as consumer protection laws and privacy regulations.
  5. Capacity: The parties entering into the agreement must have the legal capacity to do so. In the case of online agreements, consumers are presumed to have the capacity to contract unless they are minors or lack the mental capacity to understand the terms.

Considering these requirements, online agreements generally meet the criteria for forming enforceable contracts. However, there are some considerations to ensure enforceability and fairness:

  • Clarity and Accessibility: Online platforms should ensure that the terms and conditions are presented clearly and prominently to users. This includes using plain language and providing summaries or explanations of key provisions.
  • Separate Consent: Users should be required to affirmatively consent to the terms and conditions separately from other actions, such as making a purchase or registering for an account. This helps to ensure that users are aware of and understand the terms they are agreeing to.
  • Notice and Opportunity to Review: Online platforms should provide users with notice of the terms and conditions before they agree to them and offer them the opportunity to review the terms in full. This can be achieved through pop-up notifications, links to the full terms, and checkboxes requiring users to confirm they have read and understood the terms.

By structuring the agreement in a clear, accessible, and transparent manner, online platforms can enhance the enforceability of the contract and mitigate potential disputes with users.

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