Requiring Mutual Assent in the 21st Century: How to Modify Wrap Contracts to Reflect Consumer's Reality

December 23, 2016

“Mutual manifestation of assent . . . is the touchstone of contract.” The manifestation of mutual assent has evolved throughout history to accommodate mass commercialization and technological change. However, new problems have emerged with the rise of Internet contracting. Consumers, facing increasing numbers of inconspicuous and obtuse contract offers, are oblivious to many of the procedural and substantive rights they forfeit through their everyday activities. Intention to manifest mutual assent is increasingly becoming a legal fiction in cyberspace.
Courts usually refer to two well-established types of Internet contracts, but contracts rarely perfectly fit either definition, leaving courts stranded somewhere in the middle. This Recent Development argues that courts unnecessarily emphasize categorization of wrap contracts in lieu of the real legal issue: the manifestation of mutual assent. Furthermore, courts should adopt a presumption against mutual assent for cases where assent is unclear.