Wrap Contracts: Foundations and Ramifications by Nancy S. KimWrap Contracts: Foundations and Ramifications by Nancy S. Kim

Wrap Contracts: Foundations and Ramifications

byNancy S. Kim

Hardcover | September 4, 2013

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When you visit a website, check your email, or download music, you enter into a contract that you probably don't know exists. "Wrap contracts" - shrinkwrap, clickwrap and browsewrap agreements - are non-traditional contracts that look nothing like legal documents. Contrary to what courts haveheld, they are not "just like" other standard form contracts, and consumers do not perceive them the same way. Wrap contract terms are more aggressive and permit dubious business practices, such as the collection of personal information and the appropriation of user-created content. In digital form,wrap contracts are weightless and cheap to reproduce. Given their low cost and flexible form, businesses engage in "contracting mania" where they use wrap contracts excessively and in a wide variety of contexts. Courts impose a duty to read upon consumers but don't impose a duty upon businesses tomake contracts easy to read. The result is that consumers are subjected to onerous legalese for nearly every online interaction. In Wrap Contracts: Foundations and Ramifications, Nancy Kim explains why wrap contracts were created, how they have developed, and what this means for society. She explains how businesses and existing law unfairly burden users and create a coercive contracting environment that forces users to"accept" in order to participate in modern life. Kim's central thesis is that how a contract is presented affects and reveals the intent of the parties. She proposes doctrinal solutions - such as the duty to draft reasonably, specific assent, and a reconceptualization of unconscionability - whichfairly balance the burden of wrap contracts between businesses and consumers.
Nancy S. Kim is Professor of Law at California Western School of Law, and Visiting Professor at Rady School of Management, University of California, San Diego. She is Chair-Elect of the Contracts Section of the Association of American Law Schools, and a member of its Executive Committee of the Commercial and Related Consumer Law Sectio...
Title:Wrap Contracts: Foundations and RamificationsFormat:HardcoverDimensions:240 pages, 9.25 × 6.12 × 0.98 inPublished:September 4, 2013Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:0199336970

ISBN - 13:9780199336975

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Table of Contents

1. Introduction2. Why Enforce Contracts?A. Individualistic/Deontic TheoriesB. Consequentialist TheoriesC. Dynamic or "Multi-Value" Theories of Contract Law3. Contracts and Contract Law in Societal ContextA. Contract Law and Evolving Business NeedsB. Contracts of AdhesionC. Function, Fluidity and Instructive Contracts4. The Rise of Wrap Contracts: The Early CasesA. ShrinkwrapsB. ClickwrapsC. Browsewraps5. Contract Terms as Sword, Shield and CrookA. Contract as ShieldB. Contract as SwordC. Contract as Crook6. Problems of FormA. Is a Wrap Contract Just Another Contract of Adhesion?B. Sadistic Contracts7. Problems of SubstanceA. Wrap Contracts and Norm ShiftingB. Getting Something for Nothing: The Old Bait and SwitchC. The Limits of Unconscionability and the Problem of Other Laws8. The Sense and Nonsense of 'Wrap Contract DoctrineA. What is Sufficient Notice?B. An Outline of Wrap Contract DoctrineC. A New Kind of Judicial Activism9. Form, Function, and NoticeA. What is a Notice?B. Intent and Consent in Contracts, Torts and PropertyC. Contract Functionalism10. Contracts in WonderlandA. Contract Law and the Right of PublicityB. Wrap Contracts and Federal LawsC. Terms of Disservice11. Reshaping Wrap Contract DoctrineA. Imposing a Duty to Draft ReasonablyB. Tailoring AssentC. Interpretation, Construction and Contract Form and FunctionD. Environmental Coercion12. ConclusionIndex