To recover the goods. Allow me to give you another example. In

One case, a supplier of computer equipment was able to walk

Right into an office and pick up and take away the goods under

A retention of title clause. No one said anything or tried to stop

Him, and the clause allowed this.

Are there any questions? Not yet? Well, then I'd suggest at this

Point that we have a look at a well-drafted retention of title

Clause.

Listening 2

I'll be presenting a brief of the case ProCD Incorporated v

Matthew Zeidenberg and Silken Mountain Web Services from the

year 1996. The jurisdiction is the US state of Wisconsin. It's a

Pretty important case in the US in the area of the sale of goods

over the Internet. You could even say it's a landmark case.

First, I'll tell you the facts of the case and then something

About the stages of litigation and the holdings of the courts.

Finally, I'll explain the reasoning of the courts.

Here are the facts: the plaintiff, ProCD, produced the CD-ROM

product Select Phone. It's a listing of over 95 million telephone

E Audiotranscripts

Numbers and addresses, combined with search and retrieval

Software. The defendant, Mr Zeidenberg, purchased copies of

Select Phone, but decided to ignore the licence. He formed

Silken Mountain Web Services Incorporated to resell the

Information in the Select Phone database. He copied the

Telephone listings from the CD-ROM onto his computer, created

A software search engine and uploaded the data onto his

Website. The site was very successful.

ProCD sued, alleging breach of the express terms of the

Shrink-wrap licence agreement, among other things. The main

Issue raised by the case is whether a shrink-wrap licence

Constitutes an enforceable sales contract.

So, what's the procedural history of the case? The first

Instance, the District Court, decided in favour of the defendant.

It held that because the terms of the licence agreement were

Inside the box instead of printed on the outside, Zeidenberg

Had no opportunity to disagree with or negotiate them when he

Paid for the product at a store.

Then the case went to appeal. The Court of Appeals reversed

The District Court decision in favour of the vendor, ProCD. It

Remanded the case back to the District Court to determine

Damages and other legal relief. In its decision, the Appeals

Court noted that the Select Phone box contained a clear

Statement that use of the product was subject to the licence

Terms contained inside.

What was the reasoning of the court? The Appeals Court made

Comparisons to other types of transactions where money is

Also exchanged before the detailed terms and conditions are

Communicated to the consumer. One example the court gave

Was buying airline tickets. When an airline ticket is purchased,

The consumer reserves a seat, pays and gets a ticket, in that

Order. The ticket contains elaborate terms, which the traveller

Can reject by cancelling the reservation. To use the ticket is to

Accept the terms.

The Court also noted that the Uniform Commercial Code provides

That a vendor may invite acceptance of an offer by conduct. The

Date: 2015-12-11; view: 903