2018-2019 Commercial Law Developments, Part IX (Contracts)

IX. CONTRACTS

A. Formation, Electronic Contracts, Scope, and Modification

• Kolchins v. Evolution Markets, Inc., 28 N.Y.3d 1177 (N.Y. Ct. App. 2018) – Does "mazel" mean "luck" or "congratulations" sufficient to indicate assent to enter into a contract?
• CSH Theatres, LLC. v. Nederlander of San Francisco Ass’n, 2018 WL 3646817 (Del. Ch. July 31, 2018) -Oral statements will not form an agreement unless there was a "promise." Disclaimer of fiduciary duties must be "plain and unambiguous." The court may consider extrinsic evidence if the contract is ambiguous, which means that the contract is "reasonably or fairly susceptible" of different interpretations.
• Cullinane v. Uber, 893 F.3d 53 (1st Cir. 2018) (applying Massachusetts law) – As a general matter, the rules of contract enforcement that apply to written contracts apply to online contracts ("no reason to apply different legal principles [of contract enforcement] simply because a forum selection clause … is contained in an online contract"). The touchstone is that the terms have been "reasonably communicated and accepted," which in turn means there is "[r]easonably conspicuous notice of the existence of contract terms and unambiguous manifestation of assent to those terms by consumers[, which] are essential if electronic bargaining is to have integrity and credibility" (emphasis in original). The court used the UCC’s definition of "conspicuous" for this purpose. The court then engaged in "contextualized" discussion of whether the particular notice was conspicuous, taking into account the kinds of factors (location and content of notice, etc.). On the facts, the court concluded that the consumers "were not reasonably notified of the terms of the Agreement." As a result, the consumers "did not provide their unambiguous assent to those terms."
• Armiros v. Rohr, 243 Ariz. 600 (Ct. App. 2018) – A buyer who clicked the "Buy It Now" button on eBay formed a contract binding the seller and was entitled to benefit-of-the-bargain damages, even though the buyer had not yet paid for the ring subject to the contract before the seller breached the contract.

B. Interpretation and Meaning of Agreement