Consent in clickwrap agreements: Specifications, limitations and proposals concerning the electronic contracting system

Abstract

This study comprises a theoretical and jurisprudential analysis of civil law and common law on agreements known as clickwraps. Through this, the study determines the rules to be included in a consistent corpus standardising the general guidelines for contracting that must be complied within these types of legal transactions entered into electronically and in which acceptance as an element of consent is given through a ‘click’, thereby executing the relevant contract. The analysis presented is not limited to the American case law. Moreover, it cites some interpretations of European and Latin American courts to determine uniform rules that provide legal certainty, validity and protection to the contracting parties in this type of agreement. In addition, it identifies limitations provided for by international regulations in force in the e-commerce domain. These limitations are to be included in a separate harmonised instrument specifically designed for electronic contracts.