Formation of click-wrap and browse-wrap contracts 

LTReikšminiai žodžiai: Elektroninis atstovavimas; Elektroninė komercija; Elektroninė komercija, spragtelėjimu sudaromos sutartys, naršymu sudaromos sutartys, elektroninis atstovavimas, ketinimas būti saistomu; Naršymu sudaromos sutartys; Spragtelėjimu sudaromos sutartys; Browse-wrap contracts; Click-wrap contracts; E-commerce; E-commerce, click-wrap agreements, browse-wrap agreements, electronic agency, intent to be bound; Electronic agency.

ENIn a time of rapid development of technologies, new forms of contracting online emerge. Two of these are analyzed in this paper: click-wrap agreements (where an offer is accepted by way of clicking on an icon “I agree”) and browse-wrap agreements (where the offeree supposedly accepts the offer by browsing on a website, while the terms to the contract are accessible through an inconspicuous hyperlink). Click-wrap agreements are formed, they are accepted in a manner recognized as binding and the offeree knows the terms she assents to. Browse-wrap agreements are generally not formed. Even though the action of browsing on a website could indicate assent, the offeree must know that the act of browsing will be construed as acceptance. But the offeree is generally not made aware of the terms to the contract and thus cannot assent to what she is not aware of. However, if the offeree is in fact aware of the terms to the contract and still knowingly performs the action of browsing, a contract is formed and the offeree is bound. There are some doctrinal problems with an element of an offer he action of browsing on a website could indicate assentl or recklessness by the offerors as well as offerees, leading to the conclusion that the action of clicking “I agree” does not really indicate the intent of the party who performs the act, to actually agree. There is no adequate answer to this problem presently. To sum up, the enforceability of click-wrap contracts is settled in courts, it is a better way of contracting both for the offeror, who bears less risk than in cases of browse-wrap contracts, as well as the offeree, who is informed in a reasonable manner, that the actions she is about to take will be construed as acceptance. [From the publication]