Article by: Colin P. Marks
45 PEPP. L. REV. 1 (2018)
Online retail is a multi-billion-dollar industry in the United States. Consumers enjoy the ease with which they can browse, click, and order goods from the comfort of their own homes. Though it may come as no surprise to most lawyers, retailers are taking advantage of online transactions by attaching additional terms and conditions that one would not normally find in-store. Some of these conditions are logical limitations on the use of the retailers’ websites, but others go much further, limiting consumers’ rights in ways that would surprise many shoppers. In particular, many online retailers use these terms to limit implied warranties, sell goods “as is,” limit remedies, and add a host of other limitations. This article does not discuss the effects of online terms and conditions, but rather explores a very basic question: How prevalent are certain terms and conditions? While these terms and conditions might seem to be ever-present in online transactions, there have been few attempts thus far to empirically record the frequency of their use in retail transactions involving goods. This article remedies the situation by exploring the mode by which consumers assent, the prevalence of warranty and liability limitation clauses, and the prevalence of other common clauses used by the largest retailers in the United States.