5

Suppose Alice the Individual visits the web site of Bob the Business for a particular service. She clicks to view the contract, is presented by a web site showing contract terms, but because of some technical issue outside of Alice's control this is truncated in a non-obvious way. She saves the contract, including the encrypted https packets such that it there is strong evidence of the terms she was presented.

If there was later a dispute over the terms of the contract, which would be held to be valid? The contract that was presented to Alice, or the contract that Bob intended to offer? Would it matter if the technical issue was traced to Bob, a third party contracted to Bob (eg. Cloudflare), a third party contracted to Alice (eg. her ISP), some other entity or if it was undetermined? Any jurisdiction would be interesting.

Improve this question
2

2 Answers 2

Reset to default
12

No one would be held to the contract

One of the fundamental elements for the formation of the contract is missing - agreement. Alice and Bob are agreeing to different terms so they have not reached a mutual agreement.

Improve this answer
6
  • Does this depend on the (mal)intent of Bob part? If Bob intentionally and knowingly arranges it such that the contract Alice would receive is different from what Bob sends, does it change the answer? (note that the question only stipulates the alteration is outside of Alice's control, not Bob's)
    – justhalf
    Commented Oct 6 at 16:23
  • 9
    @justhalf If Bob's knowledge and intent in doing that is proven to the court, then of course the version that Bob intentionally arranged to present to Alice, which is the same as the version Alice saved, would be the valid contract. Bob's attempt to enforce a different version of the contract would be some kind of fraud.
    – Douglas
    Commented Oct 6 at 17:56
  • Many years ago I saved the screenshot of the empty contract presented on install. It was obvious something had gone wrong but no idea what was supposed to be there.
    – Joshua
    Commented Oct 6 at 22:27
  • 1
    @Joshua That might actually not have been an error at all, especially if it was a single-dev project. The standard Windows installer has the EULA/TOS screen set to show by default, and while it's possible when you're writing your calls into the installer to skip a screen that's irrelevant for your program, you have to go out of your way to do that. Some devs that don't have any EULA or TOS will just leave it blank rather than skipping the screen since it's easier.
    – Idran
    Commented Oct 7 at 13:48
  • In the U.S., in a sale of good, a battle of forms issue is often resolved differently.
    – ohwilleke
    Commented Oct 7 at 20:27
4

Would be decided on a case-by-case basis by the courts.

The primary element of a contract is a "meeting of minds". So the relevant questions would be "what did Bob intend to do?", "what did Alice intend to do?" and "do their respective intents create an agreement?"

Depending on what exactly was truncated, it may or may not affect the contract. There have been cases where the court decided that a contract different from the written contract signed by both parties had been formed, because it was clear that their agreement and what they wrote down was different and their intent trumped the written document.(1)

So only if the truncated parts would considerably change the intended contract is there a problem. If the truncated parts are standard contract boilerplate stuff that a reasonable person would expect to be part of a contract, it would likely be upheld by a court.

Of course, in practical terms, intent is difficult to prove if one or both parties are not cooperative. That's a whole other can of worms.

(1) This was a case between two merchants and a buying contract of a few tons of a specific type of fish from Norway. They wrote what they thought was the norwegian name for that fish on the contract, but mixed it up. When a container full of the wrong fish arrived, the buyer said "I didn't buy that" and the seller said "true, but it's what you signed so sorry the mistake is on you and you have to pay it". Both sides agreed that they had made a mistake and had originally intended to trade a different fish. The case was essentially over who would have to pay for the mistake. The court decided that the contract was for the intended fish, not the one written down.

Improve this answer
2
  • 1
    This is one of the aspects of law where courts have the most discretion. By their nature, they involve situations that nobody foresaw (since if anyone had foreseen the situations they would either have either averted ambiguity or, by failing to do so, conceded an interpretation more favorable to the counterparty), making it necessary for courts to invent whatever rules would be most fair in any given situation. It's clear that judges should when practical try to leave both parties in the same situation as though the contract never existed, but if e.g. it becomes clear that through...
    – supercat
    Commented Oct 7 at 14:56
  • ...no fault of either party, the situation cannot be unwound in a manner that doesn't severely harm at least one party, a court may need to fashion a remedy that splits the harm most fairly.
    – supercat
    Commented Oct 7 at 15:00

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .