Solicitor at Law
13 November 2000 13:00pm
Terms and Conditions: The “Red Hand Rule” coined by Lord Denning in J Spurling Ltd v Bradshaw in 1956 is taking on increasing significance in relation to business conducted over the Internet.
The famous principle states that some clauses in Standard Terms and Conditions of Business “would need to be printed in red ink on the face of a document with a red hand pointing to it” before such terms could be considered incorporated into a contract.
The issue of incorporation of Standard Terms and Conditions is of particular importance to Internet companies, as such Terms and Conditions form the basis of the legal relationship between the company and the consumer. Recent comment suggests that it is not good enough to merely state that the use of the web-site is subject to terms and conditions. Customers should be forced, as part of the registration process, to scroll through the Terms and Conditions and be given the opportunity to decline to accept them. If customers wish to proceed they should be prompted to click an “I accept” button. This way there can be no doubt that the Terms and Conditions have been incorporated into any contract subsequently entered into.
Jonathan Heaney - solicitor, Fairmays
Disclaimer: All information and legal commentary provided are for illustrative purposes only and should not be taken as providing legal advice and should not be relied upon. Any reliance on this information is solely at the users own risk. Specific legal advice should always be obtained before acting upon any information where legal analysis is provided. While the material provided is correct as of the date of first publication, laws and regulations frequently change and vary by jurisdiction
Independent at Multiplicity (www.multiplicity.info)
20 March 2002 12:03pm
I agree. People should also realise though, that even if you force people to scroll through the terms and conditions (which many people then still won't read, but for legal reasons this step is important), you can't just put in any terms or conditions you want. The terms and conditions must be in accordance with the laws and, what is an even bigger issue online where you easily have foreign customers, they can sometimes still claim applicability of their local consumer protection rules! This argument stems from the idea that it's easier for companies than for consumers to find out about applicable rules.
The EU and the Council of Europe, as many other organisations, are trying to tackle these issues....
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