Clickwrap agreements, signed documents and the objective test for contract formation

In this paper the author discusses whether Anglo- Australian Common Law is likely to offer any protection to a website user who clicks an 'I agree' button without reading the terms. The issue examined is not whether the terms can be set aside for being unconscionable or unfair; but whether and in what circumstances unread terms will be seen as having been incorporated into an online agreement. The starting point for the discussion is whether the rule in L'Estrange v Graucob (that a signer is bound by whatever they sign) applies. After several observations about the suggestion that a button click should not be treated as a signature, the author moves on to discuss the objective test for contract formation and the extent to which the rule in L'Estrange v Graucob is consistent with this test. The author reaches the regrettable conclusion that, as a result of the Australian High Court decision in Toll v Alphapharm, the button clicker is unlikely to have much protection from Australian Common Law.