Lawyers must have ‘strong understanding’ of nuances of click-wrap agreements

Bell Gully’s Richard Massey explains why

Lawyers must have ‘strong understanding’ of nuances of click-wrap agreements

Richard Massey says that lawyers must have a strong understanding of click-wrap agreements, especially given the current business climate, where more people are entering into electronic contracts.

“Click-wrap agreements, where the user indicates their consent to the applicable terms by clicking a button, are subject to the basic principles of contract law.  However, not all principles will or can apply in the same manner that they apply to traditional paper-based and oral contracts,” he says. “It is important for legal professionals to understand the nuances that apply to such contracts, especially given the increasing prevalence of e-contracts and the growing significance of online trading.”

The Bell Gully senior associate, who will discuss the enforceability of click-wrap and browse-wrap agreements in the upcoming Contract Law Masterclass in Auckland, says that cases on online transactions are mostly concerned with whether the notice was reasonable, whether the adhering party agreed to such terms, and whether the terms were fair. 

“One of the key challenges when advising on the drafting of click-wrap agreements, or legal aspects of website design, is to ensure that the relevant counterparty receives sufficient and timely notice of the terms,” he says. “Lawyers in this space need to think not only of the substance of the drafting, but also the presentational aspects: terms which are not readily accessible and clearly formatted may be vulnerable to challenge. Click-wrap contracts often arise in consumer contexts, and therefore it is important for legal professionals to have a strong understanding of consumer protection legislation – in particular, the Unfair Contract Terms regime under the Fair Trading Act.”

Massey says that the Contract Law Masterclass offers a great opportunity to hear from a range of practitioners with first-hand experience of important and topical legal questions.

“I am greatly looking forward to it,” he says.

With a loaded agenda, the one-day masterclass, to be held at the Hilton Auckland on 7 March, allows legal practitioners to claim up to 6 CPD points. Secure a seat today or save big with a Team Pass that reserves four seats for the price of three.

Richard Massey

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