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Mutuality and Wrap Contracts, by Nancy Kim, ContractProf Blog

http://tinyurl.com/m8d9f3s

As I’ve noted in a prior post, there is a lawsuit pending against Google for email scanning which was recently denied class status.  Something that’s puzzled me about wrap contracts generally, including Google’s, is that many of them don’t seem to be contracts at all – and not simply because of the (lack of) consent issue.  They typically contain modification at will clauses and termination at will clauses.  In contracts class, I teach students that generally (with the exception of employment contracts) these clauses lack mutuality unless constrained in other ways, such as a notice period.  While there may be consideration (use of service in exchange for…data?  eyeballs?  not clear), there is no consideration if the promises are illusory and don’t actually bind a party.   Google’s terms of use, for example, state:

‘You can stop using our Services at any time, although we’ll be sorry to see you go. Google may also stop providing Services to you, or add or create new limits to our Services at any time.’

and this unilateral modification clause:

‘We may modify these terms or any additional terms that apply to a Service to, for example, reflect changes to the law or changes to our Services. You should look at the terms regularly. We’ll post notice of modifications to these terms on this page. We’ll post notice of modified additional terms in the applicable Service. Changes will not apply retroactively and will become effective no sooner than fourteen days after they are posted. However, changes addressing new functions for a Service or changes made for legal reasons will be effective immediately. If you do not agree to the modified terms for a Service, you should discontinue your use of that Service.’

Google then isn’t bound to actually provide anything according to its Terms of Use.

In the email scanning case, Google is making the argument that consent to email scanning was obtained in the context of ‘consenting’ to the Terms of Use.  But if these ‘contracts’ are not really contracts because they lack mutuality, then can Google really claim that their users ‘consented’ to the email scanning?  Is there blanket assent to terms outside of the context of a contract?

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