You Clicked ‘I Agree’  But Did You Really Agree?

Rethinking Consent in Modern Contract Law 

How many contracts have you entered into today? 

Perhaps you bought a coffee, purchased a bus ticket, downloaded an application or subscribed to a streaming service. Each transaction may have established a legally binding agreement. Yet how many of us stopped to consider what we were agreeing to? I certainly hadn’t, until my Contract Law professor introduced the topic during a lecture.

Sitting confidently in the front row, I began to suspect the discussion was personally directed at me. As someone whose approach to terms and conditions consists of scrolling enthusiastically until the “ACCEPT” button appears, I felt rather exposed. I had expected an introduction to contract law, not an examination of my questionable decision-making. Before Sussex, I associated contracts with signatures and complicated legal language. I rarely considered that pressing a button could carry legal consequences. But if we haven’t read the terms, negotiated them or understood them, can we genuinely say we have consented? 

The Car Park That Changed My Perspective 

One case that caught my attention was Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163. 

Mr Thornton entered an automated car park and received a ticket referring to contractual conditions. Among them was a clause attempting to exclude liability for personal injury. The Court of Appeal held that the exclusion clause had not been effectively incorporated. Lord Denning MR reasoned that the contract was formed through the operation of the machine, before Thornton received the ticket. He also emphasised adequate notice, particularly for onerous conditions. This reveals an important distinction: entering a contract does not necessarily mean every proposed term becomes part of it. I had never imagined a car park could provoke such an intellectual crisis. Yet there I was, reconsidering every parking ticket I’d encountered. If adequate notice mattered for a printed ticket in 1971, what should it look like on a smartphone today? 

From Parking Tickets to Digital Contracts 

Consider the last time you downloaded an application. Before accessing its features, you probably encountered a lengthy agreement accompanied by two choices: accept the terms or abandon the process. Technically, you had a choice. But was it meaningful? Modern consumer contracts frequently operate on a take-it-or-leave-it basis. Businesses determine the conditions, while consumers have little opportunity to negotiate. I certainly don’t recall Netflix inviting me to discuss amendments to its subscription agreement over coffee. This imbalance challenges our understanding of freedom of contract. Although consumers may voluntarily accept an agreement, their bargaining power is often considerably weaker than that of the business. However, unequal bargaining power does not automatically invalidate a contract.

English contract law generally assesses agreement objectively, considering outward words and conduct rather than requiring proof that everyone understood every provision. The difficulty lies in distinguishing legally effective acceptance from genuinely informed consent. Should clicking “I Agree” be sufficient, regardless of what lies behind the button? 

The Argument Against My Own Position 

There is, admittedly, a compelling argument for holding consumers responsible for their decisions. Imagine a legal system where individuals could escape contractual obligations simply by claiming they hadn’t read the terms. Commercial certainty would suffer. Businesses could struggle to rely on agreements, while consumers might accept contractual benefits before denying their responsibilities. My habit of ignoring the small print would make a questionable foundation for legal reform. Consumers therefore have a responsibility to exercise reasonable care when entering agreements. Requiring complete comprehension of every provision would be neither practical nor desirable. Yet commercial certainty should not excuse businesses burying significant obligations in unnecessarily complicated language. The more important question is whether the law places sufficient responsibility on the party drafting those terms. 

When Does Agreement Become Unfair? 

English law already recognises that contractual freedom has limits. Under section 62 of the Consumer Rights Act 2015, an unfair consumer contract term is not binding on the consumer. The fairness assessment considers whether a term, contrary to the requirement of good faith, causes a significant imbalance in the parties’ rights and obligations to the consumer’s detriment. 

Section 68 also requires written consumer terms to be transparent: plain, intelligible and legible. These provisions demonstrate that legal acceptance and contractual enforceability are not identical.  However, does making a contract readable necessarily make it fair? A consumer might understand an unfavourable provision yet have no realistic opportunity to negotiate it. 

The reasoning in Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989] QB 433 reinforces the importance of drawing attention to particularly onerous or unusual terms.  Rather than expecting consumers to scrutinise dozens of pages, businesses should make consequential and unexpected provisions conspicuous before acceptance.  This would not eliminate individual responsibility. It would recognise that meaningful agreement requires responsibilities on both sides. 

Learning to Think Like a Lawyer 

Studying law at Sussex has revealed the complexity beneath ordinary experiences. A parking ticket is no longer simply a parking ticket. A subscription is no longer merely a monthly payment. Even a harmless-looking button raises questions about consent, bargaining power and fairness. It appears studying law comes with an unexpected side effect: the inability to experience mundane activities without mentally identifying potential legal disputes. 

I will probably continue clicking “I Agree” without reading every word, as I suspect many of us will. Although, should my professor discover this article, I may have to reconsider that admission. Nevertheless, my view has changed. Consumers should not escape contractual obligations merely because they neglected to read them. Equally, businesses should not assume that obtaining a click absolves them of responsibility for how their terms are presented. Perhaps the real challenge for modern contract law is not teaching consumers to read every word, but ensuring that the most consequential words are impossible to overlook.  After all, agreement should be more than a button.