JCCC Honors Journal


Businesses commonly post “Terms and Conditions” on their website, even though they are not required to do so. When enforceable, these terms can be an effective risk management tool. Generally, website terms and conditions state that users of the website are bound by such terms just by their use of the website, without further action. However, this requires that the users be on notice that they are agreeing to the terms. Requiring some form of affirmative action to acknowledge notice of the terms is the best way to assure that an online contract will be enforceable. The United States Court of Appeals for the Ninth Circuit in August 2014 ruled in Nguyen v. Barnes & Noble, Inc., that an arbitration provision contained in the “Terms of Use” of the Barnes & Noble website was not enforceable because the online consumer was not provided sufficient notice of those terms and therefore could not have assented.[1] The enforceability of mandatory binding arbitration provisions in browsewrap contracts is an emerging topic in contract law. The Nguyen v. Barnes & Noble decision should serve as a reminder to businesses that, to be enforceable, an arbitration provision in an online contract still requires a meeting of the minds.

[1] Nguyen v. Barnes & Noble, Inc., 763 F.3d 1171, 1180 (9th Cir. 2014).