Readers of this column will be aware that courts in the Second Circuit have had a complicated relationship with web-based contracts, and in particular with the idea of electronic consent to arbitration. Today, the vast majority of day-to-day commercial activity takes place through web-based services or applications (regardless of the complexity of the transaction or the sophistication of the parties) and in that environment online and electronic agreements have become ubiquitous. At this point, it would be difficult for an average person to get through a day without agreeing, in one way or another, to be bound by an agreement they have likely never seen or read.

Applying traditional contractual principles to increasingly non-traditional forms of agreement has presented a challenge to the courts. Generally, the fundamental question in a contractual dispute is whether both parties have manifested an intent to be bound by the terms of the agreement. But in what sense can a party manifest the intent to be bound by a contract they have never seen?