October 2011

I’ve written fairly often in these web pages about whether online terms and conditions are enforceable—partly because it’s a developing area of contract law, partly because I’m fascinated by the legal fiction that there’s a “meeting of the minds” between website owner and user, and partly because I’m waiting to see what happens when a website owner crosses the line as illustrated by this South Park clip. The ABA’s Business Law Today magazine recently published an excellent article about whether online terms are enforceable, which focuses on the incorporation by reference doctrine. The article was written by Raymond P. Kolak and Ryan D. Strohmeier and it’s well worth a read.

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Kudos to Active.com for putting together an excellent browsewrap checkout screen. I had to navigate through the screen recently in order to sign up for the St. Louis Rock ‘n’ Roll half marathon.

When courts determine whether to enforce online terms and conditions, they tend to focus on whether users had notice of the online terms and whether they assented to them. To my mind, the perfect notice and assent procedure would require the terms to be loaded onto the user’s computer screen for long enough to ensure that the user had sufficient time to read them. [click to continue…]

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I’m an unabashed infinitive splitter, but dangling modifiers are a different story. If the aim of a contract drafter is to be clear, concise, and unambiguous, dangling modifiers are bad news. They can create unintentionally interesting sentences, but they also are a breeding ground for confusion. Thanks to a recent tweet by Marilyn Bush LeLeiko (aka @lawwriting), I found this excellent piece about dangling participles by Catherine Soanes on the OxfordWords blog.

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