For on-line transactions, must the business provide the consumer the terms and conditions of their purchase before asking for payment?

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For on-line transactions, must the business provide the consumer the terms and conditions of their purchase before asking for payment?

Asked on July 31, 2011 California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

Yes. When payment is made, a contract is formed in essence: the buyer accepted the business's offer to sell something (or provide certain services) at a certain price by tendering that price. Once a contract is formed between two persons or entities, neither one may unilaterally change that contract by adding additional terms or conditions, or by refusing to honor terms and conditions already agreed to. Therefore, any terms should be disclosed prior to the purchase, or at a minimum, there must either be a link to or notice or or etc. other terms (and someplace there person can get them to review them, if so desired), or some mechanism to cancel the transaction and get money back if the person refuses to accept the terms.

All that said, courts will usually enforce after the fact "administrative" terms, such as whether payment is net 30 or net 45, etc. (especially so long as the buyer could have returned, refunded, rescinded, had he or she wanted). But terms that materially (or significantly) change the transaction would likely not be enforced, such as terms significantly decreasing the value or utility of what was purchased.

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

Yes. When payment is made, a contract is formed in essence: the buyer accepted the business's offer to sell something (or provide certain services) at a certain price by tendering that price. Once a contract is formed between two persons or entities, neither one may unilaterally change that contract by adding additional terms or conditions, or by refusing to honor terms and conditions already agreed to. Therefore, any terms should be disclosed prior to the purchase, or at a minimum, there must either be a link to or notice or or etc. other terms (and someplace there person can get them to review them, if so desired), or some mechanism to cancel the transaction and get money back if the person refuses to accept the terms.

All that said, courts will usually enforce after the fact "administrative" terms, such as whether payment is net 30 or net 45, etc. (especially so long as the buyer could have returned, refunded, rescinded, had he or she wanted). But terms that materially (or significantly) change the transaction would likely not be enforced, such as terms significantly decreasing the value or utility of what was purchased.


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