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This chapter presents some final thoughts. It argues that courts must acknowledge the fact that wrap contracts are not the same as traditional paper contracts. The flexibility of contract law can accommodate changes in the contracting environment, but with wrap doctrine, the rules have been twisted in favor of the desires of drafting businesses. A solution to the irrationality of wrap contract doctrine must recognize the drafting party's role and responsibility in creating the form of the contract and the contracting environment.

This chapter proposes a number of doctrinal adjustments to existing contract law that recognize the difference contractual form makes. These adjustments are as follows: recognizing a duty to draft reasonably; replacing blanket assent with specific assent; considering contract function when applying existing doctrinal rules; and reinvigorating unconscionability.

This chapter distinguishes wrap contracts from other contracts of adhesion. Wrap contracts share many of the characteristics of other contracts of adhesion. There are exceptions: wrap contracts are not signed; the adhering party enters into the transactions on a daily basis, often multiple times a day, and with different companies; and the adhering party's principal obligation in the wrap contract is typically not the payment of money. The chapter also considers problems associated with wrap contracts, which can be traced to the bastardized version of blanket assent.

This chapter attempts to provide a coherent framework for understanding the existing case law on wrap contracts. The discussions cover notice and wrap contract formation; the doctrinal rules that are unique to wrap contracts; and a new kind of judicial activism.

This chapter begins with a brief definition of wrap contracts. It then sets out the book's purpose, which is to explain how businesses, courts, and technology create a coercive contracting environment where one-sided legal terms are imposed upon non-drafting parties who literally have no choice but to accept them if they wish to participate in modern society. It also explains why traditional contract law is insufficient to address modern contracting needs.

This chapter explains how companies strategically use wrap contracts to acquire rights without bargaining and to establish and embed by stealth practices before users and regulators realize what has happened. The discussions cover how wrap agreements create their own laws that are contrary to what a reasonable user expects; how businesses use wrap contracts to legitimate practices lacking in transparency; and the problems with relying upon the doctrine of unconscionability to prevent enforcement of nonnegotiated agreements.

This chapter discusses the relevance of notice in online contracting. It begins by explaining the so-called duty to read. It then discusses what a notice is; intent and consent in contracts, torts, and property; and contract functionalism.

This chapter begins by presenting scenarios that illustrate the harm that can be caused by wrap contacts. It then discusses contract law and the right of publicity; wrap contracts and federal laws; and terms of disservice.

This chapter explains why contracts are enforced. Specifically, it discusses individualist/deontic theories, consequentialist theories, and multivalue theories of contract law. Individual autonomy or “will theorists” emphasize self-determination and freedom of contract. Consequentialism focuses on the societal benefits of contracting. Multivalue theories of contract law explain that the justification for contract law derives from more than one societal value or objective.

This chapter examines the societal interests addressed by contracts and contract law. It discusses contract law and evolving business needs; contracts of adhesion; and function, fluidity, and instructive contracts.

This chapter examines the substantive terms contained in wrap contracts and how they have evolved with changes in form. It discusses the contract as shield; the contract as sword; and the contract as crook. A contract provision may shield the drafter from liability for unfair or unauthorized business practices; it may affect and terminate rights held by the other party; it may also enable a company to stealthily appropriate (via a nonnegotiated agreement) benefits ancillary or unrelated to the consideration that is the subject of the transaction.