Websites – offer or invitation to offer?

Court’s view on Websites as offer or invitation to offer:

“Website advertisement is in principle no different from

a billboard outside a shop or an advertisement in a
newspaper or periodical…

…Common law has recognised [that display of goods

for sale is] not an offer but are said to be an invitation to
treat…
Websites – offer or invitation to offer?
The prospective buyer has to make an offer to purchase
which is then accepted by the merchant.
While this is the general principle for shop displays,
it is open to a merchant to offer by way of an
advertisement the mechanics of a unilateral or
bilateral contract.
This is essentially a matter of language, and
intention, objectively ascertained.
Websites – offer or invitation to offer?
As with any normal contract, internet merchants have to
be cautious how they present an advertisement, since
this determines whether the advertisement will be
construed as an invitation to treat or a unilateral contract.
Loose language may result in inadvertently
establishing contractual liability to a much wider
range than wanted.

Any famous case comes to mind?

Types of website based contracts
Clickwrap, Shrinkwrap and Browsewrap contracts
Meaning

Clickwrap – On websites (or softwares etc.) the user is

sometimes asked to read the terms of service, privacy policy and
disclaimers mentioned on the website and then click on 'I agree'
button before such user avails any service or purchases any
products advertised on the website.
When such a user clicks on ‘I agree‘ button, he is deemed to have
read and consented to all the terms and conditions mentioned.
Types of website based contracts
Browsewrap
Browsewrap terms do not require an express consent of the user
and its terms are generally accessible through a hyperlink.
Generally, in all e-commerce websites the terms and conditions
are prominently displayed on the website and should at the
earliest opportunity the attention of a user is drawn to read the
same.
Types of website based contracts
Shrinkwrap – more applicable to software sold in the
form of CD etc.
Types of website based contracts
Through the clear plastic wrap on the box, the purchaser
can see the warning that states that the use of the
software is subject to the terms of a license agreement
contained inside.

In such as case, the full agreement cannot be read before

purchasing the software.
Types of website based contracts
Validity
Clickwrap – Governed by section 10A of the IT Act and
are very likely to be considered valid since there is no
dearth of notice and are displayed at the very start of the
contract formation process (apart for unconscionability,
which we will see later)

Browsewrap and Shrinkwrap – do you see any potential

problems?
Types of website based contracts
Browsewrap – susceptible to challenge for lack of notice
and assent to terms – but what about constructive notice?

Shrinkwrap – shrink wrap agreements are susceptible to

challenge unless the buyer is afforded a right to return
the software (and have the refund) should the terms be
unacceptable to the buyer/user once he has had the
opportunity to read it.