Hines v. Overstock.com, Inc.

668 F. Supp. 2d 362 (E.D.N.Y 2009)



In order to be binding, a contract requires a meeting of the minds and a manifestation of mutual assent. The making of contracts over the internet has not fundamentally changed the principles of contract. On the internet, the primary means of forming a contract are the so-called "clickwrap" or a "browsewrap" agreement and courts consider primarily whether a website user has actual or constructive knowledge of a site's terms and conditions prior to using the site.


Defendant company was an online "closeout" retailer. Plaintiff alleged that when she purchased an item from the defendant and then decided to return it, the company imposed a $30 restocking fee. Plaintiff claimed that she had been advised that she could return the vacuum without incurring any costs and that the defendant never disclosed that a restocking fee would be charged. Defendant filed a Motion to Dismiss and to transfer venue. The court denied the motion in entirety.



Was plaintiff properly notified of the website's term and conditions?




it is clear that Plaintiff had no actual notice of the Terms and Conditions of Use. Defendant has also failed to show that Plaintiff had constructive notice.The website did not prompt her to review the Terms and Conditions and because the link to the Terms and Conditions was not prominently displayed so as to provide reasonable notice of the Terms and Conditions, there was a clear lack of notice .

Click here to view the full text case and earn your Daily Research Points.