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Here it’s an acceptance, with additional terms. But the additional terms are not conditional, so you go to 2-207 (2), and those terms become proposals for addition to the contracts. But since it’s a consumer, not a merchant, the additional terms drop out. Thus Klocek did not agree to the arbitration provision. Christopher Specht v. Netscape Communications Corporation (p. 333)Clickwrap = shrinkwrap but online. In order to agree to terms online,
Clarityand conscipuousnessof arbitration terms are important in securing informed assent. So to accept clickwrap, the terms need to be clear and you need to be able to see them. oIn this case, clicking a “download now” button was not sufficient. oA reasonably prudent offeree would not have known about the terms. Shrinkwrap Cases: offeree must actively do something to reject the offer.Hill v. Gateway(Easterbrook): Held that 30 days was sufficient because the buyer expected more terms (agent would not explain them all). UCC § 2-207 does not apply because there isonly one offer (as opposed to a counteroffer with new terms).Klocek v. Gateway: In this case the return period is only 5 days and the buyer knew nothing about more terms coming. Held that express assent is necessary. Applies § 2-207 even though there is only one set of terms. Terms drop out under 2-207 (2)Sprecht v. Netscape: (clickwrap) Court held that the notice of additional terms was too obscure and so no acceptance.Martin, Jr., Delicatessen v. Schumacher (p. 370) Lease renewal negotiations, w/ “annual rents to be agreed upon.” Landlord tries to evict. No enforceable contract. Without a methodology for how to determine future rent, it’s just an agreement to agree. o(Contrast w/ Oglebay v. Armco, which had a specific mechanism for setting the price. Also the parties there had a stronger intention to be bound.)Hoffman v. Red Owl Stores, Inc. (p. 375)Note: High-water mark of promissory estoppel in the business world (contrast w/ Empro). Facts: Hoffman acts under a series of promises made by an agent of Red Owl in the hopes ofoperating one of Red Owl’s grocery stores. He incurs significant costs, but never gets the grocery store; sues and says he relied on Red Owl’s assurances that he’d get a store. Question: Does the tort-like concept of promissory estoppel create pre-contractual liability? Holding: Yes. Court holds that Red Owl is liable for damages incurred based on Hoffman’s reliance. oTest for promissory estoppel: Was the promise on which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee?Did the promise induce such action or forbearance?Can injustice be avoided only by enforcing the promise?