Vol 7 No 1 - Roger Williams University School of Law

principles articulated in several international instruments. Forexample, a directive of the European Union deems aspresumptively unfair a term “irrevocably binding the consumer toterms with which he had no real opportunity of becomingacquainted before the conclusion of the contract.”71 Also deemedunfair are terms enabling the supplier to alter the terms of thecontract unilaterally without a valid reason specified in thecontract.72In addition, UCITA for the first expressly validates postpaymentdisclosure of terms—“pay now, terms later”73—underwhat is known as the “rolling contract” theory of contractformation. While it may not always be possible to disclose (ormake available) all applicable terms prior to the creation of abinding agreement (as in the case of a telephone purchase order),that is not the case with respect to online transactions whereinformation can be made readily accessible. Indeed, one can arguethat the Internet is the quintessential marketplace: a place wherethe notional or theoretical fully-informed party to a transactioncan be more closely approximated than in physical markets; anenvironment capable of providing the information that buyersneed to make informed shopping decisions.74 Rather thanrecognizing the ability of the media to resolve informationaldistribution issues, however, UCITA condones the delay ofdisclosure of terms until a consumer is committed to the deal, nomatter how important the terms.75 This is contrary to theapproach in the European Union, where prior disclosure of terms71. Council Directive 93/13/EEC of 5 Apr. 1993 on Unfair Terms of ConsumerContracts, 1993 O.J. (L 095) 29, Annex 1(i).72. Id. at Annex 1(j).73. Maureen A. O’Rourke, Progressing Towards a Uniform Commercial Code forElectronic Commerce or Racing Towards Nonuniformity?, 14 Berkeley Tech. L.J. 635,651 (1999).74. See id. at 652 (“Would it not be consistent . . . to draft legal rules that enhancethe market’s efficiency by providing more information to customers, correcting forinformation asymmetries that might otherwise exist and distort marketperformance?”); see also Jean Braucher, Delayed Disclosure in Consumer E-Commerceas an Unfair and Deceptive Practice, 46 Wayne L. Rev. 1805 (2000) (arguing thatmarketing to consumers online and failing to make pre-transaction disclosuresamounts, like other bait and switch practices, to unfair and deceptive practices inviolation of the Federal Trade Commission Act and states’ little FTC acts).75. See Braucher, supra note 65. UCITA does, however, contain a “safe harbor” toencourage posting. UCITA § 211.