Introduction

As digital transactions proliferate across e-commerce, fintech, and service platforms, contract formation in India has evolved to include new modes of consent. Traditional notions of "offer and acceptance" are now being tested in virtual environments, particularly through Clickwrap and Browsewrap agreements. These digital formats raise critical questions about valid consent, notice, and enforceability under the Indian Contract Act, 1872.

Understanding Clickwrap and Browsewrap Agreements

• Clickwrap Agreements require users to actively click a button—typically marked “I Agree” or “Accept”—after being presented with the terms and conditions. This form of digital contract is generally seen as closer to traditional consent.
• Browsewrap Agreements, on the other hand, do not require any affirmative action. Users are deemed to have accepted the terms simply by using the website or application.

The key distinction lies in the manner of assent. As observed in Specht v. Netscape Communications Corp. (2002), U.S. courts ruled that "mere use of a website without a visible or conspicuous terms of service may not constitute assent."

Indian Legal Framework: Consent and Enforceability

Under Section 10 of the Indian Contract Act, a valid contract requires free consent and a lawful object. Furthermore, Section 2(e) defines an agreement as "every promise and every set of promises, forming the consideration for each other."

The Information Technology Act, 2000, especially Section 10A, provides that contracts formed through electronic means are legally valid. It states:

“Where in a contract formation, the communication of proposals, the acceptance of proposals, the revocation of proposals and acceptances, as the case may be, are expressed in electronic form... such contract shall not be deemed unenforceable solely on the ground that electronic form or means was used.”

However, Indian courts have yet to rule definitively on the enforceability of Browsewrap agreements.

Judicial Attitude Towards Digital Consent in India

While jurisprudence in India on this topic is still evolving, courts have shown a willingness to uphold clickwrap agreements where notice and consent are clear. In Trimex International FZE Ltd. v. Vedanta Aluminium Ltd. (2010), the Supreme Court held that electronic communications could constitute a valid contract if both parties had clearly agreed on the terms.

Further, in Rohit Pande v. Shagun Suri (2017), the Delhi High Court observed:

“It is not the mode of communication, but the meeting of minds that determines whether a contract exists.”

This aligns with the common law principle that consent must be informed, voluntary, and intentional.

Challenges with Browsewrap Agreements

Browsewrap agreements present a challenge to the requirement of free consent under Section 14 of the Contract Act. Users often are unaware that terms exist, let alone that their usage of a site amounts to agreement. In the absence of conspicuous notice, the courts may treat such “consent” as illusory.

As legal scholar Anirudh Krishnan notes:

“Enforceability hinges not merely on the presence of a hyperlink, but on the effectiveness of communication and the user's opportunity to review the terms.”

Recommendations and Conclusion

Given the digital shift, Indian courts are likely to evolve a more nuanced standard of review, particularly for contracts formed online. To ensure enforceability:

• Websites should employ clickwrap mechanisms wherever possible.
• Terms should be prominently displayed, and acceptance should require an affirmative act.
• For browsewrap agreements, courts may eventually apply a "reasonable notice" test, similar to U.S. and UK jurisprudence.

As India advances its digital infrastructure, it's essential that legal standards keep pace with technology—balancing user autonomy with commercial certainty. In the words of Justice Krishna Iyer, “Law must not lag behind logic, nor must logic ignore the human element of fairness.”