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I agree Customer's Behaviour towards almost all contracts (agreements)

Customer rarely reads boilerplate or takes it or leaves it contracts that firms offer (example: assignment clause which is generally present at the end of the contract). Firstly, customers do not know about the legal relationship which arises and also, actual consent was not taken for the legal relationship that arises between buyer or customer and the firm. Secondly, these types of agreements and contracts cannot be made better as customers are unaware of the legal contract that is existed.

Time is not the only problem in this type of contracts as consumers don't read these contracts when they have no time but also when they have time. Types of contracts that people ignore or don't read their terms and condition are cell phone contracts, insurance policy, gym membership contracts and one time contracts such as temporary employment contract.

Customer also doesn't read online contracts like clickwrap and browse-wrap contracts, which can contain disputable terms and conditions. In Feldman vs. Google, Feldman (the plaintiff), a lawyer, purchased publicizing from Google Inc's keeping in mind the end goal to pull in potential customers for his training. Each time a web client scanned and tapped on Google for Ad words bought by him, he would be charged by the defendant for each click. Appellant said that he didn't give consent to the agreement, so there is no meeting of minds and also contended that click fraud has taken place. But the court said that the clickwrap contracts are binding when a person click I agree button and now the consumer is liable for the terms and conditions that he agreed.

Who is consumer?

According to section2 (1) (d) (i) of Consumer Protection Act, Consumer means a person
buys any goods for a consideration which has been paid or promised or partly paid and partly guaranteed, or buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person. and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person.[1]

Concepts of Clickwrap and browse-wrap contracting

Technological advancement in the correspondence business-like software, media and electronic field in the course of the most recent decade has offered to ascend to customers and a group of people to manage their own particular business or authoritative relations by means of the Internet. The foot characteristic of such innovation can be found in the new type of agreement which is called clickwrap agreement.

Since the idea of clickwrap the contract is as yet ambiguous, for example, free assent, pressure, and undue impact in clickwrap understanding in Malaysia and the United States of America. Main terms can be: clickwrap agreement, contract, and electronic contract.

  1. Recently, the type of agreement in normal life has been changed step by step by consolidating its old type with the new innovation and propelled form in various sorts of agreement. One of these new contracts is clickwrap contracting. The Internet is the biggest and most different data save on the planet. Individuals get to data on themes extending from wanted network shows to essential legitimate and social issues.

    Subsequently, the clients of the Internet can approach the merchandise and ventures that are accessible on the Internet and influence an agreement through digital to space. The position and circumstances of a man who is sitting and marking an agreement by means of the Internet aren't equivalent and like a man who is doing an agreement through up close and personal exchange. Subsequently discovering the circumstance of fundamental components of an agreement in the electronic contracts appears to be critical.
     
  2. Click wrap Contracting (otherwise called a navigate through or clickwrap permit) is a typical kind of contract which is for the most part utilized as a part of association with programming permit. This understanding by and large uses or discovered through the Internet, as a feature of the establishment procedure of numerous product bundles, or indifferent conditions where agreement is looked for utilizing electronic media. For making an understanding effectively and furthermore lawfully bound, the end client must tap on the I agree or I accept catch for demonstrating his assent with the terms or condition which has been composed earlier.[2]


There are various kinds of frauds which take places in these types of contracts as customers are unaware of the terms present in these contracts. In the case, AV vs. iParadigms, the litigant, iParadigms, claims and works Turnitin Plagiarism Detection Service, an online plagiarism checking software intended to assess the uniqueness of composed works keeping in mind the end goal to avoid written falsification. At the point when a school subscribes to iParadigms plagiarism prevention service, it expects its pupil to post their composed assignments by means of an electronic system. After a student presents a written work task, the Plagiarism check system plays out a computerized correlation of the student's work with others work and various online articles and periodicals.

The Turnitin framework gives taking an interesting school the alternative to file understudy works. At the season of the protestation, there were 7,000 institutional supporters. To present a paper on the web, the pupil must tap on I accept under the terms which are mentioned or a clickwrap agreement. The school want their students to submit papers on the web and filed their paper. When plaintiff presented their assignments, they included a disclaimer, which questioned the chronicling of their works.

In any case, Turnitin chronicled the plaintiff' work by following the secondary school's code. The school filed a complaint affirming that iParadigms encroached their copyright advantages in their work by filing them in the Turnitin database without their authorization.[3]In this case, the Court held that paradigm is not liable as customer agreed to the terms and conditions mentioned in the clickwrap contract by clicking on the I agree button.

Problems associated with E-Contracts

A user rarely reads e-contracts which may contain disputable provisions and the terms create an obligation on the users who don't know about this type of contracts. When the customer clicks I agree button it is assumed that he agreed to all the terms and condition mention in the contracts as he has the option of clicking I disagree button also. This is also applied to uneducated or illiterate person also. In McKenna vs. Metropolitan Life Insurance Co it was said it is unreasonable for the customer if he is not aware of the terms or clauses mentioned in the insurance policy contract.

Google's new web program Chrome is quick, gleaming, and expects clients to sign their lives over to Google before they can utilize it. The present Internet rage is Chrome's EULA, which seems to give Google a nonexclusive power to show and circulate all of the substance transmitted through the program. Presently, Google discloses to Ars that it's a blunder, the EULA will be remedied, and the amendment will be retroactive.

As verified by a lawyer at Tap the Hive and sundry different locales, the Chrome EULA peruses like a great deal of Google's different EULAs. It expects clients to give Google a ceaseless, unalterable, around the world, eminence free, and nonexclusive permit to repeat, adjust, change, interpret, distribute, openly perform, freely show and circulate any Content which you submit, post or show on or through, the Services.[4]It takes four months to the customer to notice this and asked for $1000 as a reward.

Whether Customer can actually read the contract before clicking I agree button?

According to the doctrine conclusive presumption the person who is signing an agreement or a contract must read, interpret and give consent to the terms and conditions mentioned in a contract as efficiency and integrity are important pillars in contracting.

In the case, Lewis vs. Great Western Railway, the court rejected the contention of the counsel that the appellant is not bound to read the unclear or ambiguous terms mentioned in the contract:
It is illogical to say that the agreement, which is partly in writing and partly in print, and which was filled up, signed, and made sensible by the appellant, was not binding upon him. A person who signs a paper like this must know that he signs it for some purpose, and when he gives it to the Company must understand that it is to regulate the rights which it explains. I do not say that there may not be cases where a person may sign a paper, and yet be at liberty to say, I did not mean to be bound by this, as if the party the signing was blind, and he was not informed of its contents. But where the party does not pretend that he was deceived, he should never be allowed to set up such a defence.[5]

It is impossible for the consumer to know about the terms which are also bounding. It is important to examine whether a customer who is bounded by these boilerplate contracts can actually read it before signing the contract. Mutual understanding of the contract is important. It is wage to say that the customer can read the whole contract because most of the terms are unclear and cannot be understood by the layman and for forming the legal relationship between two people, meeting of the minds is important and for forming contract consent is necessary.
Efforts made by Consumer Protection Act and Legislature, so that customer can get opportunity to read the contract.

There are various rights given to the consumer in Consumer Protection Act like Right to Consumer Education which says that customer should have skill and knowledge which can affect his decision for buying any product or services.

Federal Trade Commission proposes that seller should mention terms which are related to customer's expectation and to warm them about the unfavourable terms, they mentioned in their contract. Unfavourable terms can be imposed if they are mentioned in the warning box in a standardized border. Sellers should not overuse the warning box and should mention only unexpected terms in as it can mislead consumers.

Principle laid down in contract to deal with the non-reading habit of the consumer.

There is a contract law principle Caveat Emptor which means Let the buyer beware. It is a type of warning against the buyer that he should know all the important things about the product and services before buying it. As a buyer, he has very less information about the product, so it is the responsibility of the seller to inform all the relevant things about the product and if he fails to do this, then the seller will be liable.

In the case where all the relevant facts are given to the buyer but because of his mistake, he suffered a loss than the seller is not responsible. This type of situation is known as information asymmetry, where one party has more information and this creates problem economic transaction[6].

For example: In the case, Jones v. Padgett (1890), the buyer purchased an indigo cloth with a motive to make a dress but he did not inform seller about this. That cloth was suitable for usual purposes other than making clothes. The plaintiff sued the seller for his loss. The court rejected his contention and said under the principle Caveat Emptor, defendant or seller is not liable for the loss.

Exceptions of Caveat Emptor
According to section 16 (1)(2)(3) 0f Sales Of Goods Act, these are the exceptions of the Caveat Emptor.

  1. Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the seller�s skill or judgment, and the goods are of a description which it is in the course of the seller�s business to supply (whether he is the manufacturer or producer or not), there is an implied condition that the goods shall be reasonably fit for such purpose: Provided that, in the case of a contract for the sale of a specified article under its patent or other trade name, there is no implied condition as to its fitness for any particular purpose.
     
  2. Where goods are bought by description from a seller who deals in goods of that description (whether he is the manufacturer or producer or not), there is an implied condition that the goods shall be of merchantable quality: Provided that, if the buyer has examined the goods, there shall be no implied condition as regards defects which such examination ought to have revealed.
     
  3. An implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade.
     
  4. An express warranty or condition does not negative a warranty or condition implied by this Act unless inconsistent therewith.

According to the Section16 of Sales of Goods Act, it is the moral and legal obligation of the supplier to give only goods which are demanded by the buyer who is incapable of making any rational judgement.

Conclusion
According to my opinion, the legislature should make laws which can solve the problem of not reading the contract before signing it. The legislature should decide whether the terms mentioned in the contracts should be enforceable and can be understood by the consumer because, in many contracts, the language of the terms are difficult to understand by a normal person. Even if he read the whole contract patiently, still he will not be able to examine it and make the rationale decision.

Customer should be informed about the legal relationship that will be arising after signing the contract or clicking I Agree button. The consumer should give a proper chance to read the contract. In e-contracts, most of the time when customer want to download any software, the company did not show the content of the website before clicking I Agree button which is not fair to form the contract.

There should be a message before I agree on button which says after clicking this button you will enter into a legal contract which is binding. The terms which are important and can be ignored by the consumer should be in Warning Box with the border. There should not be too much irrelevant information mentioned in the contract which the brain cannot retain or understand. The court should take actions against the contracts in which only one party is liable and other is free, as it creates inequality.

Customer should get a notification if the seller changes the terms of the contracts. The company should not mention the unexpected terms and should disclose all the terms and proposal before consumer enters into a contract.

End-Notes:

  1. Dr S.R. MYNENI, CONSUMER PROTECTION ACT 173-174(1st ed. 2010).
  2. Maryam Rafiei &Nazura Abdul Manap, Legal Position of Click Wrap Agreement, Postgraduate Student, Law Faculty, Universiti Kebangsaan Malaysia 2 Associate Professor, Law Faculty, Universiti Kebangsaan Malaysia Abstract (Oct 6, 2017)https://www.researchgate.net/publication/267809190_Legal_Position_of_Click_Wrap_Agreement.
  3. A.V. EX REL.VANDERHYE Vs. IPARADIGMS ( 16 . 04 . 2009 - 4th Circuit ).
  4. Nate Anderson, Google on Chrome EULA controversy: our bad, we'll change it ,(oct.4,2017),https://arstechnica.com/tech-policy/2008/09/google-on-chrome-eula-controversy-our-bad-well-change-it/.
  5. Ian Aynes, THE NO-READING PROBLEM IN CONSUMER CONTRACT LAW(2014) ,(Oct6, 2017)http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=5881&context=fss_papers
  6. Visited on Oct6,2017, 5:37pm

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