Types of online agreements. Chapter 5.

• Date: 01 January 2005
• Published date: 01 January 2005
• DOI: 10.10520/EJC74031
• Author: Jason Mikellyn Charles Johnson
• Pages: 50-57

CHAPTER 5

TYPES OF ONLINE AGREEMENTS

5.1 Types of online agreements

According to the authors of Chapter 6 of Buys’132 work, the most

common form of online contracts, are those in terms of which

goods are purchased via the Internet at online-shopping malls or

shopping-portals. Contracts formed over the Internet usually fall

into three broad categories:

(a) Contracts for the sale of goods,

(b) Contracts for the supply of digitized products and

(c) Contracts for the supply of services and facilities.

In amplification of this view, I am of the opinion that merchant-type

contracts that are generally entered into over the Internet may be

divided into two main groups: (1) those contracts concluded in

reaction to an online advertisement, and (2) those not flowing from

an online advertisement.

The difference between the two is crucial, because in South

African law, an advertisement is not an offer, which means that the

customer makes the offer and the whole process is effectively

back-to-front!

When dealing with the actual manner in which a party to a contract

indicates his or her acceptance to certain terms and conditions or

indicated acceptance to the offer presented, the concepts of

“shrink-wrap” contracts, “click-on” contracts and “browse-wrap”

contracts become relevant.

Shrink-wrap, click-wrap and browse-wrap contracts refer to the

way in which the contracts are concluded more so than the content

thereof.The way in which courts have dealt with shrink-wrap, click-

on and browse-wrap agreements is of particular interest and may

shed light on the question as to the manner acceptable for the

conclusion of online agreements.

Naturally, the manner in which a contract is concluded is not con-

clusive with respect to the eventual legality thereof, but — as will

be clear later — may be the only factor from which compliance with

the requirements for the conclusion of contracts may be derived.

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132 Buys ea 2000:155-189.