Discussion of Brower v. Gateway (A Contracts Question) Forum

[JLJ]

I am slightly confused with this case. If any of you have recently discussed it, or remember it please feel free to fill me in.

My question is this: Why wasn't a contract formed when Brower ordered the computer and paid for it? But the court says the offer was when Brower received the computer, and acceptance was when he kept it for the thirty days.

Does anyone know the answer to this? Specifically why doesn't the ordering (where the specifications where likely discussed) and the payment, constitute offer and acceptance?

Here is a link for a brief (LinkRemoved)

thanks for your comments.

[clintonius]

Corrected link to the brief: http://www.lawnix.com/cases/hill-gateway.html

Also,

Specifically why doesn't the ordering (where the specifications where likely discussed) and the payment, constitute offer and acceptance?

the brief tells you in the second sentence, "The customer service representative did not read the terms and conditions of the sale." See also the notes, regarding analogous shrinkwrap provisions: "Under such cases the contract does not form at the time of purchase; generally it forms when the purchaser makes the express indication of acceptance, for example by declining to return the product within a specified period of time."

Basically, there were conditions that the buyer didn't know about. If the contract had been formed when he ordered over the phone, and Gateway were allowed to stick whatever clauses it liked in the fine print without his approval, that would be bad news. It was at the point of receipt that he found out about the arbitration clause, and there must have been a period of time for him to accept or decline the terms of the purchase contract.

[zomginternets]

Judge Posner does not read boilerplate contract terms

On that note, neither does Chief Justice John Roberts.

OP: ProCD and its progeny (including Brower) is a pro-business policy based decision that basically tries to allow companies to include fine-print terms with a product after its sale while still claiming that it contractually binds the customer. If the offer was made by the consumer and accepted by the company when it sold the consumer the item (or even if the offer was made by the company and accepted by the consumer when he purchased the item), as we would expect using common law offer/acceptance theory, companies wouldn't be able to screw over consumers because those terms would be excluded from the contract (per U.C.C. 2-207). IMO, ProCD and its progeny (incl. Brower) basically forced a triangle into a cylindrical hole.

See Step-Saver Data Sys., Inc. v. Wyse Tech., 939 F.2d 91 (3d Cir. 1991) for a case that more closely conforms with our intuitions of how the law of offer and acceptance should be applied in these situations.

[JLJ]

So..Brower is basically a pro business decision, that basically says fvck the little guy and common law?

[zomginternets]

Yup. I mean, some meager degree of sense can be made of it's whole "sending the package is the offer," but 99% of the decision is based off of pro-business policy. The caveat that the consumer must have the opportunity to return the product is just Easterbrook throwing a bone to consumer advocates (i.e. who the hell is actually going to repackage and ship back a computer they just bought because of an arbitration clause buried in the 88th page of a 500 page instruction manual?).

For 1Ls trying to learn how to write a nice, succinct policy argument, take notice: the post above is how it's done.

Thank you.