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Washington Law Review

Abstract

A browse-wrap agreement is an online contract that governs the use of a Web site but does not require users of the site to affirmatively agree to the terms and conditions of the contract. The terms of a browse-wrap agreement are accessible to the user only by clicking on an Internet link, often inconspicuously located at the bottom of a Web page, marked "Terms and Conditions." Browse-wrap agreements purport to bind users to these terms and conditions when the user merely performs a function of the Web site, such as submitting a query on the site's database or downloading software. Despite the prevalent use of browse-wrap agreements, courts are just beginning to consider their enforceability. To date, four federal district courts have addressed the issue. Each court has approached the issue of contract formation differently and has reached a different result. Courts should refuse to enforce browse-wrap agreements. Users do not always have adequate notice that using a Web site binds them to the terms and conditions of a browse-wrap. Even if the Web site does provide notice to users that such terms and conditions exist, users are not given the opportunity to adequately manifest their assent to such terms. Although courts must be flexible as contracts evolve to accommodate electronic commerce, browse-wrap agreements stray too far from the basic contractual principles of notice and assent. Accordingly, courts should not enforce them.

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