united-states contract-law adhesion-contracts
Avoiding agreeing to, or amending, digital contracts (redux)
<p>A recent question asks whether one can <a href="https://law.stackexchange.com/questions/92303/avoiding-agreeing-to-or-amending-digital-contracts">escape the terms of an adhesion contract</a> by orally rejecting the terms while making a confirmation in writing.</p>
<p>It seems likely the answer is no, as the written confirmation is an objective manifestation of assent to the bargain.</p>
<p>But what if the customer doesn't actually provide written confirmation?</p>
<p>For instance, UPS stores ask customers to sign a digital contract as part of each transaction. It includes standard business-friendly terms for arbitration, class-action waiver, etc., and presents the customer with a signature box before proceeding to complete the transaction.</p>
<p>So imagine the following: Buyer asks UPS deliver a package overnight. UPS offers overnight delivery for $50. Buyer agrees. Clerk processes the transaction and asks Buyer to agree to sign the agreement to standard UPS terms. Buyer reviews the terms and does not like them. Instead of signing in the signature box, Buyer takes the pen and writes something like:</p>
<ul>
<li>&quot;No.&quot;</li>
<li>&quot;Decline.&quot;</li>
<li>&quot;These terms are unacceptable.&quot;</li>
<li>&quot;I reject the arbitration clause.&quot;</li>
<li>Or &quot;I agree only to pay $50 in exchange for overnight delivery.&quot;</li>
</ul>
<p>The clerk either does not notice or does not care that Customer has not actually signed his name to the contract and completes the transaction.</p>
<p>UPS loses the package. Buyer sues. UPS moves to compel arbitration.</p>
<p>Must Customer arbitrate?</p>

<h2>Option 1: The contract is not formed</h2>
<p>By writing a non-confirmation and explicitly denying the contract, the contract does not fulfil the <em>meeting of the minds</em>. There is no renegotiation, as the agent of the company is not allowed to negotiate.</p>
<p>In a strange fashion, UPS would not be entitled to $50, but the customer is not entitled to <strong>any</strong> delivery, storage of the parcel or even to leave it at the company - and can't sue for the loss of more than the $50 because that is the total extent of their damages: the unjustly paid fees.</p>
<h2>Option 2: The contract is still formed as offered by UPS</h2>
<p>In the alternative, the contract <strong>has</strong> to be followed as written originally. In that case, the customer is obligated to arbitrate. In fact, the signing (or marking) of the terms of service might be simply <em>acknowledgment</em> of the standard contract, which was formed moments prior to the moment the customer handed over the package and paid.</p>
<p>The customer did not get any verification of the altered terms of service from the clerk - who couldn't negotiate those deals to begin with - and instead accepted the terms by not taking back the parcel.</p>
<p>Would the customer truly want to deny the offered terms, he'd have canceled the transaction and taken the parcel. Instead, he left it with the clerk and paid the transaction, which in itself makes a contract formation <strong>by action</strong>, very much akin to how you form a contract under the standard terms of the store by paying at the cashier for a bottle of soda.</p>
<h2>Non-Option: altered deal</h2>
<p>The clerk is not tasked with negotiating or accepting different terms from those that UPS declares.</p>
<p>If the clerk just failed to notice the attempted altered deal, we are back to the two options above: either there is no deal, or the deal is as originally offered.</p>
<p>Would the clerk has <strong>actively</strong> agreed to a deal that fall outside of his tasks, the whole situation collapses to a variation of Option 1, where there is no valid contract between UPS and the customer. However, in this case, the clerk is liable for the damage to the parcel and the damage to UPS.</p>
