The Enforceability Of Boilerplate Electronic Agreements
Electronic agreements, formed through some sore of internet activity, are very common. You probably encounter them all the time. An agreement to an internet contract can occur through various methods, including by simply just entering a page, by clicking on a link, or by specifically checking an "I agree" box. But just how enforceable are these electronic internet agreements, which people often don't realize they've agreed to and even fewer actually read?
Internet commerce has not fundamentally changed the principles of contract. Iowa law requires an enforceable agreement to contain an offer, acceptance, and consideration. An offer is a manifestation of willingness to enter into a bargain, so made as to justify another party in understanding that the party’s assent to that bargain is invited and will conclude it. The parties to a contract must manifest their assent to be bound and do so in a manner that is sufficiently definite to be enforceable.
In translating the principles of contract formation to the internet, the relevant inquiry is (1) whether the web pages presented to the consumer adequately communicate all the terms and conditions of the agreement and (2) whether the circumstances support the assumption that the purchaser receives reasonable notice of those terms. The internet use must have knowledge of the electronic contract's terms in order to be bound by them. Courts may not enforce secret electronic terms or terms that the internet provider did not make readily available to the user.
When the assent to terms of a contract is largely passive, as is often the case with electronic contracts of adhesion, the contract-formation question will often turn on whether a reasonably prudent offeree would be on inquiry notice of the terms at issue. When there is no actual notice of contractual terms, offerees are still bound by the provisions if they are on inquiry notice of the terms and assent to them through the conduct that a reasonable person would understand to constitute assent. Inquiry notice is actual notice of circumstances sufficient to put a prudent man upon inquiry.