Manifestation of Assent

David Johnson david at
Wed Oct 30 05:21:57 UTC 2002

On Tuesday 29 October 2002 08:25 pm, John Cowan wrote:
> David Johnson scripsit:
> > Perhaps I'm not understanding the legal concept of "assent", but how can
> > a mere notice constitute acceptance? Certainly it's evidence that the
> > user knew about the license, but it seems to fall far short of evidence
> > to any manifestation of assent.
> It's the actions you take that constitute the manifestation.  When you
> are in a supermarket, the act of picking up an item and carrying it
> to the checkout is assent to pay the supermarket's price, whether
> visibly marked on the item or not.

The act of handing the cashier 50 cents for a package of Twinkies is a 
manifestation of assent. Reading the price tag is not.

Imagine if Twinkies were like software. You pay 50 cents for them and take 
them home. You open up the package and see a notice. The notice says "you do 
not own these Twinkies despite what your sales receipt may say. By consuming 
these Twinkies you agree not to disparage the taste of Twinkies ever again. 
If you do not agree, then you must return the the package to the retailer, 
who will not accept a return since the package was opened."

If that weren't enough, imagine if the phrase "by consuming these Twinkies" 
were removed. Could you be held in obligation to the notice by the mere act 
of reading it? How can a mere notice constitute assent?

David Johnson

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