Danielle D’Onfro, ‘Contract-Wrapped Property’, 137 Harvard Law Review 1058 (2024). Danielle D’Onfro’s article ‘Contract-Wrapped Property’ provides a new lens to understand – and counter – sham consent in clickwrap and browse wrap agreements. Judicial treatment of constructive notice as assent in online agreements, of course, greatly benefits huge companies like Amazon, Google, and AT&T at the expense of everyone else, especially consumers. The big take away of ‘Contract-Wrapped Property’ is that attorneys and judges unwittingly protect a long-prohibited type of property interest – equitable servitudes in chattels – when they enforce clauses limits on liability against downstream buyers that were not parties to the original contract. According to D’Onfro, these decisions endanger the very foundations of private ordering such as ownership itself and also could undermine product liability doctrine … (more)
[Martha Ertman, JOTWELL, 12 June 2024]
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