Consent in Online Contracts - Mindless or Mindful?

Abstract

In a day and age where consumers carry out more and more of their contractual transactions online, it must be queried as to whether they sacrifice their understanding of the contractual process in pursuit of the inherent advantages of speed and efficiency in online contracting. In other words, do consumers truly understand the terms and conditions associated with online contracts? For example, does ticking a box marked “I agree” truly amount to contractual assent and are such methods capable of ascertaining actual contractual intention?

Classical contract theory speaks of the necessity of a “consensus ad idem” [meeting of minds] to form a contract and this theory has evolved over time into its present incarnation of “reasonable terms with reasonable notice” in standardized term contracts. But does this objective concept of consent truly reflect the contractual mindset of the online consumer?

This study aims to evaluate the current nature of consent in online consumer contracts and consider the feasibility of introducing a more onerous standard of informed consent into the online contracting process. To this end, the standard of informed consent utilised in the fields of medicine and data protection will be evaluated and its advantages and disadvantages will be assessed against the current objective standard of consent found in online contracts. Finally this study will aim to ascertain whether the imposition of a requirement of informed consent into online consumer contracts is practically possible and whether it actually assists the consumer in understanding the online contracting process.

Keywords: Electronic contracts, Online consumer contracts, Standardized terms and conditions, Consent, Consensus ad idem, Informed consent, Consumer rights