Sneak In Contracts

Consumer contracts are a pervasive legal tool that govern many of our daily activities. Yet, consumer contracts are routinely modified by businesses after customers accept them. Common modifications include, for example, a change in fees, alteration of a dispute resolution clause, or revision to the firm’s privacy policy. In fact, unilateral modifications can affect virtually every aspect of a contract. While the literature widely discusses the problem of ex ante consent to consumer contracts, it does not adequately address the problem of ex post consent to unilateral modifications. But the practice of unilateral changes to consumer form contracts comes with significant detriments and social costs. Despite these costs, there are no systematic empirical studies exploring this phenomenon. This Article aims to fill this gap by empirically examining the frequency, mechanics, and degree of transparency of unilateral change mechanisms in consumer contracts. This Article examines 500 sign-in-wrap contracts of the most popular websites in the United States that use such agreements. We find that the vast majority of consumer contracts in our sample are “sneak in” contracts—that is, they allow firms unilateral and broad discretion to covertly change consumers’ rights and obligations after consumers accept them. This study’s findings raise concerns as to whether sneak in contracts are aligned with prominent core values and principles of contract law, such as consent, promise, reliance, consideration, freedom, choice, empowerment, and community. The study thus calls for greater transparency in the law that governs the modification of consumer contracts.