A recent question asks whether one can escape the terms of an adhesion contract by orally rejecting the terms while making a confirmation in writing.
It seems likely the answer is no, as the written confirmation is an objective manifestation of assent to the bargain.
But what if the customer doesn't actually provide written confirmation?
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.
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:
- "These terms are unacceptable."
- "I reject the arbitration clause."
- Or "I agree only to pay $50 in exchange for overnight delivery."
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.
UPS loses the package. Buyer sues. UPS moves to compel arbitration.
Must Customer arbitrate?