The “duty to read” means that parties are bound by contracts to which they have given their assent even if they did not bother to read them. It is a foundational concept in contract law—so well-accepted that judicial decisions rarely mention it except in passing. But it has never been more important than in the 21st century.  It is very common for a client who comes to me on a contract issue to get very quiet when I ask them if they read the contract before they signed it.  

Our lives are an endless stream of contracts of adhesion. Most contracts are contracts of adhesion.  Which are non-negotiable (take-it-or-leave-it), and standardized.  When consumers take out a loan, sign up for a credit card, buy or rent a car, check into a hotel, sign a waiver to go skiing, or do any number of other things, they are presented with a contract of adhesion, and there is no haggling over its terms—the buyer either agrees to it or there is no deal.

Most people do not bother to read adhesion contracts since they cannot bargain over them anyway. But the law does not care—if you sign it, generally you are bound by all its terms, because you had a duty to read it. Despite a pervasive wariness about adhesion contracts, they are generally enforced. 

But things got complicated with internet contracts. Website owners who want users to be bound by their contractual provisions (including arbitration provisions) typically do not put the terms on the webpage that the user must access to use the site. The terms can be accessed by a hyperlink that takes the user to another webpage. This is a classic example of a contractual term found in a non-contractual place: a website does not look, feel, or smell like a contract—and, importantly, there is no duty to read a non-contractual document. The website owner wishing to bind the other party to its terms must create a duty to read their Website Terms & Conditions. In many cases, website owners fail to do that.  You can create this duty to read by deactivating the “I Agree” clickbox until the user has scrolled  from top to bottom of the terms and conditions.  You can’t make them read it, but you can make them be exposed to the entire contract so that they appreciate that it is, in fact, a contract.

Courts have held that the user is not bound by the website owner’s contractual terms because the user did not actually see them and was not on inquiry notice of them (often the Website Terms & Conditions hyperlink is below the order button and the user would have no reason to scroll down to it, or the hyperlink is inconspicuous because of clutter—it gets lost in a sea of other information on the webpage, or the website did not clearly indicate that the user’s continued use of the site constitutes the user’s assent to the hyperlinked terms. These deficiencies are remedied by ensuring that the design and content of the website creates a duty to read the terms—by putting the user on inquiry notice of the hyperlinked terms and by making clear that continued use of the site will bind the user to the critical, hyperlinked legal terms.

This article is not legal advice and does not create an attorney-client relationship between you and the Berney Law Firm.  Please consult an attorney before acting or refraining from acting on any information contained in this article. 

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