Vol 7 No 1 - Roger Williams University School of Law

is mandated in certain instances.76 As stated in Guidelines of theOrganisation for Economic Co-Operation and Development:“Businesses engaged in electronic commerce should providesufficient information about the terms, conditions and costsassociated with a transaction to enable consumers to make aninformed decision about whether to enter into the transaction.”77The easier it is to find or imply assent to the terms of acontract, the greater the pressure becomes to impose a method toprevent unfair or overreaching terms in the resultingagreements.78 The question of whether to enforce shrink-wrap orclick-wrap licenses is related to a second problem: whattechniques are there for policing unfair or overreaching termsincluded in the license by the licensor?79 To the extent that theseclick-wrap agreements are adhesion contracts, the user or licenseeeffectively has no choice but to accept the objectionable term orreject the entire transaction. To the extent the user has alreadypurchased a product and then finds additional terms (either undera rolling contract theory or because the licensor changes the termsafter the conclusion of the contract), the licensee may find itselfbound by terms it had no ability to negotiate.Repeated attempts in the Article 2 revision process to dealwith unfair terms in adhesion contracts were constantly objected76. Council Directive 97/7/EC of 20 May 1997 on the Protection of Consumers inRespect of Distance Contracts, 1997 O.J. (L 144) 19. A basic purpose of the directive isconsumer protection through prior information, written confirmations, right ofwithdrawal, performance, payment by card, and prevention of inertia selling.77. Organisation for Economic Co-Operation and Development, ConsumerProtection in the Context of Electronic Commerce Guidelines, § III(C) (Dec. 9, 1999)[hereinafter OECD], available athttp://www.oecd.org/oecd/pages/home/displaygeneral/0,3380,EN-document-0-nodirectorate-no-24-320-0,FF.html.78. The concept of contractual free choice and assent often sound good to thebusinessperson:However, contract law has a darker side as well. Cyberspace is not anegalitarian society with equal chances for every ‘netizen.’ In a world totallyruled by contract, weaker parties risk being subjugated and fundamentalfreedoms may be jeopardized. Freedom of contract may become contractualcoercion, especially when dominant undertakings abuse their market powerto impose contractual rules on powerless consumers, as if they were publicauthorities.P. Bernt Hugenholtz, Copyright, Contract and the Code: What Will Remain of thePublic Domain, 26 Brook. J. Int’l L. 77, 79 (2000).79. See John J.A. Burke, Contract as Commodity: A Nonfiction Approach, 24Seton Hall Legis. J. 285 (2000) (surveying the policing approaches available tostandard form contracts and recommending a regulatory response).