The Updating Problem: Offer and Acceptance Richard Warner

An Example “Amazon provides website features to you subject to the following conditions. If you visit or shop at Amazon.com, you accept these conditions.” Does the duty to read entail that I have agreed to the terms—including that my use of the site shall count as acceptance? Recall that an acceptance is a (1) manifestation of a willingness to enter the bargain proposed by the offer (2) in a way invited or required by the offer.

The Apparent Difficulty Contractual obligations are freely undertaken. This requires knowing what the obligations are. So how can hypothetical knowledge of terms and a “no other option” choice meet this condition?

A Current Puzzle: Updating Contracts Amazon: [1] Our business changes constantly, and our Privacy Notice and the Conditions of Use will change also....[2] you should check our Web site frequently to see recent changes... [3] our current Privacy Notice applies to all information that we have about you and your account. [4]We... will never materially change our policies and practices to make them less protective of customer information collected in the past without the consent of affected customers.

The 9 th Circuit’s Attitude The court held such amendments unenforceable in Douglas v. Talk America  a service provider cannot unilaterally change the terms of its contract by merely posting a revised contract.  Parties to a contract have no obligation to check the terms on a periodic basis.  A revised contract is merely an offer So does not bind the parties until it is accepted, and even if it were,  An offeree cannot assent to an offer unless he knows of its existence. Reason: offer and acceptance plus consideration form a binding agreement.

Provide notice Do not require response Require response, do not allow any use of site Undesirable from a business point of view. Some respond Acceptance Most do not respond Acceptance?

Can We Make Sense of This? What if this is the offer? “Use Amazon and Amazon can make small changes to the terms of use.” Contracts often give one party the power to make unilateral decisions that determine the extent of their obligations—for example:  Cancellation clauses,  Publication contracts  Best efforts clauses.