Title

Clickwrap agreements, signed documents and the objective test for contract formation

Date of this Version

2011

Document Type

Book Chapter

Publication Details

Citation only

Forder, J. J. (2011). Clickwrap agreements, signed documents and the objective test for contract formation. In S. Kierkegaard & P. Kiekegaard (Ed.) Law across Nations: Governance, policy & statutes (pp342-352). Hellerup, Denmark: International Association of IT Lawyers (IAITL).

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2011 HERDC submission. FoR code: 180105, 180199

© Copyright International Association of IT Lawyers (IAITL), 2011.
© Copyright Jay Forder, 2011

ISBN

978-87-991385-9-3

Abstract

In this paper the author discusses whether Anglo- Australian Common Law is likely to offer any protection to a website user who clicks an 'I agree' button without reading the terms. The issue examined is not whether the terms can be set aside for being unconscionable or unfair; but whether and in what circumstances unread terms will be seen as having been incorporated into an online agreement. The starting point for the discussion is whether the rule in L'Estrange v Graucob (that a signer is bound by whatever they sign) applies. After several observations about the suggestion that a button click should not be treated as a signature, the author moves on to discuss the objective test for contract formation and the extent to which the rule in L'Estrange v Graucob is consistent with this test. The author reaches the regrettable conclusion that, as a result of the Australian High Court decision in Toll v Alphapharm, the button clicker is unlikely to have much protection from Australian Common Law.

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This document has been peer reviewed.