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Point Click & Contract? by Sam Burke

More and more of us are doing our shopping online for the holidays. Much of the time, before the sale is completed, we are asked to check a box that says something like “agree to terms and conditions.” Occasionally, if you are like most people, you’ll scroll down the tiny box skimming the tiny print that is there. Then, you click on the box and move on to complete the purchase. Well you didn’t really read those terms and conditions, are you bound by them anyway?

The short answer is “probably yes.” These point and click contracts, where the individual consumer has no opportunity to negotiate the terms, are sometimes referred to as adhesion contracts. An adhesion contract is a standardized contract form that offers goods and services to consumers on essentially a “take it or leave it” basis without giving consumers realistic opportunities to negotiate terms. If the consumer wants the product, the consumer cannot purchase it unless, as in the case of most internet sales, they check the box that they agree to the terms and conditions the seller is offering.

Some people have heard (or have the knee jerk reaction) that adhesion contracts are not enforceable. This is generally not true. As the Texas Supreme Court has repeatedly said, an agreement is not negated because one party had a better bargaining position. Adhesion contracts will be enforced unless the contract results in unfair surprise or oppression. To constitute unfair surprise and oppression the circumstances have to be extreme. Texas courts have found relatively few adhesion contracts that they believed resulted in unfair surprise or oppression.

In a similar vein, many retailers now use shorter contracts when you make in-store purchases that incorporate the terms and conditions that are spelled out on a company’s website. Sometimes the terms are even emailed to you when or shortly after you pay for the product. These types of agreements are also finding favor in the courts. Under Texas law, unsigned documents may be incorporated into the parties’ contract by referring in the signed document to an unsigned document. The language used to refer to the incorporated documents is not important as long as the signed document “plainly refers” and not just mentions the incorporated document. For example, if a written contract signed in the store plainly refers you to the terms and conditions on the store’s website, those terms and conditions have likely become part of your agreement with the store whether you have read them or not.

The moral of the story is this. Be careful where you point and click. For major purchases, you should actually read, not simply scroll through, the terms and conditions. If you see a reference in an in-store agreement to additional terms and conditions on the website, ask to see the website terms before signing the agreement. Now more than ever, we have options on where and from whom we purchase goods and services. If you think the terms and conditions of a point and click contract are outrageous, take your business elsewhere. Your local merchants will be glad to see your smiling face this holiday season.

Samuel B. Burke is Board Certified by the Texas Board of Legal Specialization in Civil Trial Law and may be reached at [email protected].