Consent You Cannot Obtain: Post-Sale Terms on a Durable Good, the Strangers They Name, and the Formation Challenge That Survives Arbitration

Abstract

A television is bought at a retail counter. The sale is complete before anyone has seen a word of the manufacturer's terms, which appear on the screen after unboxing, mounting, and connection, run to roughly forty thousand words across six instruments, and can be changed afterward by software update. Four of those instruments close with a paragraph in which the purchaser represents that he has obtained consent from every member of his household and is providing it on their behalf. This Article asks whether any of that binds anyone, and it answers on the shrinkwrap cases' own terms. ProCD held that a buyer who is told terms exist, is given them, has a right to return the product if they are unacceptable, and uses it anyway has accepted by conduct; measured against all four, the television transaction satisfies the first only, and only as to the single term the manufacturer prints on the outside of the carton, which is the arbitration notice and nothing else. Hill expressly reserved the case of a buyer with no advance notice that terms are coming. The Ninth Circuit, on a consumer electronics purchase with terms in the box, held that silence is not assent and declined to follow the Seventh Circuit. And the people the household clause purports to bind, guests, children, and bystanders, are strangers to the agreement on any theory, which ProCD itself said contracts cannot reach. The Article then shows why a formation challenge, and only a formation challenge, survives the arbitration provision and the delegation clause inside it: both of the Supreme Court's severability decisions reserve whether any agreement was ever concluded, the 2024 Suski decision holds that a challenge applying equally to the whole contract and to the delegation clause is for the court, and a status objection applies equally by its nature. It closes by comparing the clause's allocation of the consent duty to the consumer against the one federal regime that has addressed consent on behalf of someone who cannot give it, which placed the duty on the party that built the collection, and by disaggregating the collection under the statutory unfairness standard to show that the function the consumer wanted is small and user-initiated and the functions producing the injury are neither. None of this is about televisions. It applies to any durable good sold at retail whose terms appear after the sale.

Keywords

• contract formation
• shrinkwrap
• browsewrap
• assent
• post-sale modification
• unilateral modification
• arbitration
• delegation clauses
• severability
• consumer contracts
• durable goods
• smart televisions