Document Type
Article
Publication Title
William & Mary Law Review
Publication Date
2026
Volume
67
First Page
605
Abstract
With the growth of online commerce and the platform economy, many companies are including provisions in their online terms and conditions that extend far beyond what reasonable consumers would expect. Some terms and conditions purport to bind customers to separate contracts in future transactions that have little to do with the first contract. Other boilerplate purports to cover family members of the customer who created an account. Some retailers have argued that people shopping in their brick-and-mortar stores are subject to terms and conditions because those shoppers had at some point previously created an online account. For example, Disney argued that a claim for wrongful death from food allergies was required to be heard in arbitration because the decedent’s husband had downloaded a free trial of the Disney+ streaming service five years prior to his wife’s death. Disney only walked back its argument when the news story went viral on social media and created negative publicity for the company.
This Article proposes two approaches to addressing such overreaching contracts, a contractual defense and a related tort claim. The defense is based on fraud in the inception, a contract law doctrine that protects parties from being bound to a contract in circumstances in which a person manifests assent under false pretenses. Then, the Article proposes the creation of a new tort law cause of action for abuse of contract. Related to the tort of abuse of process, the abuse of contract cause of action would create a nonwaivable civil cause of action in circumstances where online retailers have inserted overreaching terms for in terrorem effect. Using this combination of a contract defense and a tort claim will remove the use of overreaching terms.
Comments
Available at: https://scholarship.law.wm.edu/wmlr/vol67/iss3/2/