Predicting the Enforceability of Browse-Wrap Agreements in Ohio

Sam S. Han, University of Dayton

Abstract

Internet-based commerce has now reached a level where Internet-based businesses, such as amazon.com or ebay.com, sometimes generate more revenue than their brick-and-mortar counterparts. In view of the growth in Internet-based businesses, the courts have been forced to address unconventional contracting mechanisms, such as shrink-wrap, click-wrap, and browse-wrap agreements. Much of the scholarly writing, as well as court opinions, reach a consensus that browse-wrap agreements will be enforceable if there is: (a) sufficient notice of the agreement terms; and (b) clear manifestation of assent to the terms. However, there is very little guidance on how much notice will constitute "sufficient notice." This article analyzes several websites that are likely to withstand judicial scrutiny, and attempts to objectively predict the minimum quanta of notice that is necessary to meet the threshold of "sufficient notice." While the article concentrates on Ohio, the analysis can be translated to 45 other states that have adopted the Uniform Electronic Transactions Act ("UETA"), since the browse-wrap agreement falls within the UETA's definition of a contract.