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Wayne R. Barnes

First Page

267

Last Page

324

Document Type

Article

Abstract

There have been at least two dominant forces at work in the realm of consumer contracting over the past several decades. One has been the rise and domination of the standard form contract (whereby merchants contract with consumers via the use of standardized, boilerplate terms and conditions that consumers do not read or understand). The second force has been the rise of e-commerce and the purchase of goods and services via websites and other online platforms, and the use of “wrap” formation methodology (whereby merchants obtain consumer assent to the online terms and conditions via the consumer’s informal click, scroll, or browse of the merchant’s website through the use of “browsewrap,” “clickwrap,” and similar mechanisms). Moreover, it is apparent that most retail merchants impose numerous favorable terms in their online terms and conditions, but do not impose any terms on their in-person, or “offline,” customers that purchase at their brick-and-mortar locations. Why? This Article utilizes John Suler’s Online Disinhibition Effect to potentially explain this behavior. The Online Disinhibition Effect describes the phenomenon that people are less restrained in what they say and do online than when they are in the face-to-face world. We see this in the way people interact on social media—in messaging each other, and even in email. People are emboldened to act in the online context because the Internet lacks the traditional social checks that constrain in-person social interaction. Although Suler focused his observations on individuals’ social activity online, this Article seeks to use them to partially explain consumers’ and merchants’ contract activity—that is, their ready and uninhibited willingness to enter into, and impose, online terms and conditions. Looking at Suler’s factors such as dissociative anonymity, invisibility, and asynchronicity, the fact that no humans tend to interact or react to one another in the online formation process generally reduces any opportunity for inhibitions to the terms to be imposed. Given that merchants are even less inhibited in imposing robust and favorable terms in the online context than they are in the offline brick-and-mortar context, courts should give particular care when analyzing the fairness of such terms, whether under principles of unconscionability or otherwise.

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