Shrinkwrap, Clickwrap, and Other Software License Agreements: Litigating a Digital Pig in a Poke in West Virginia
David R. Collins · The Research Repository @ WVU (West Virginia University) · 2009
For centuries, merchants have sought to hustle the sale of their wares speedily or sight unseen, the obvious advantage being that the buyer, in haste, may overlook a flaw or strike a bargain on impulse, thus promoting the sale of a good that might have otherwise been passed over or purchased for a lower price given careful consideration, momentary reflection, or further negotiation.In medieval Europe, merchants were known to occasionally pass off a runt--or even the less-valued cat-as a suckling piglet at market to the unwary customer by concealing the animal in a sling-sack, known as a "poke," and conducting the transaction sight unseen under the pretense that opening the bag might allow the animal to escape. 2 Thus the idiom "to buy a pig in a poke" became synonymous with making a less than fully-informed purchase.3 The victim of this grift might not discover the folly of his purchase until returning home, where the poke would be opened, thereby "letting the cat out of the bag.", 4 Today, states have responded to such sharp business practices by imposing certain implied warranties upon the parties by operation of law. 5 Notwith-I U.C.C. § 1-303 cmt. 9 (2004) (referring to the admissibility of evidence regarding the usage of trade).While more than half of the states have adopted Revised Article 1 of the Uniform Commercial Code, as of this writing, no state has adopted the latest proposed amendments to Article 2. For this reason, when citing Uniform Commercial Code-General Provisions, this Note refers to the 2004 amendments to Article 1, but when citing Uniform Commercial Code-Sales, this Note refers to the 2000 version of Article 2.