There have been at least two dominant forces at work in the realm of consumer contracting over the past several decades. One has been the rise and domination of the standard form contract, whereby merchants contract with consumers via the use of standardized, boilerplate terms and conditions which consumers do not read or understand. The second force has been the rise of e-commerce and the purchase of goods and services done online via websites and other online platforms, and the use of “wrap” formation methodology (whereby merchants obtain consumer assent to the online terms and conditions via the consumer’s informal click, scroll, or browsing of the merchant’s website through the methods of “browsewrap,” “clickwrap,” and the like). Moreover, it is apparent that most retail merchants, while imposing numerous favorable terms in their online terms and conditions, do not impose any terms on their in-person “offline” customers that purchase in their brick-and-mortar locations. Why? This article seeks to utilize John Suler’s Online Disinhibition Effect to potentially explain this behavior. The Online Disinhibition Effect posits that “people say and do things in cyberspace that they wouldn’t ordinarily say and do in the face-to-face world. They loosen up, feel less restrained, and express themselves more openly.” We see this in the way people interact on social media, in messaging each other, and even in email. People are emboldened to act in the online context because of the lack of traditional social checks that exist to constrain in-person social interaction. Although Suler’s observations were focused on individuals’ social activity online, this article seeks to use it to partially explain consumers’ and merchants’ contract activity — that is, their ready and uninhibited willingness to enter into, and impose, online terms and conditions. Looking at Suler’s factors such as dissociative anonymity, invisibility, and asynchronicity, the fact that no humans tend to interact or react to one another in the online formation process tends to reduce any opportunity for inhibitions to the terms being imposed. Given that merchants are even more uninhibited in imposing robust and favorable terms in the online context, than they are in the offline brick-and-mortar context, suggests that particular care should be given when courts analyze the fairness of such terms, whether under principles of unconscionability or otherwise
