## Introduction

In U.S. contract law, assent means a party’s approval or agreement to the terms of a deal. Courts usually apply an objective “reasonable person” test: would a reasonable person, seeing your words and actions, think you agreed? It’s not about secret thoughts—it’s about what you say and do.

This guide explains how assent is shown in writing, verbally, through conduct, and online. You’ll also see how courts treat phone deals, signatures, click-to-accept buttons, and silence.

Note: This is general information for a U.S. audience and not legal advice.

## What You'll Learn

- What assent means under the objective theory of contracts
- How written, verbal, implied, and electronic actions can show agreement
- When silence or conduct can count (and when it can’t)
- How UCC §2-207 handles “battle of the forms”
- Key cases, including Lucy v. Zehmer, Meyer v. Uber, and Nguyen v. Barnes & Noble
- Practical steps to make assent clear in paperwork and online flows

## Core Concepts

### Objective Theory of Assent

- Outward expressions matter. Courts focus on what a reasonable person would understand from your words and conduct, not on private intent.
- Classic case: Lucy v. Zehmer (Va. 1954). A signed agreement to sell a farm, made in a social setting, was enforced because the seller’s words and actions showed serious agreement, even though he later claimed it was a joke.
- Restatement (Second) of Contracts:
  - §19: Conduct can show assent when it reasonably signals acceptance.
  - §20: No contract if both parties attach materially different meanings and neither has reason to know the other’s meaning.

- Labels help. Statements like “subject to a final written agreement” can signal that you are not yet agreeing. Loose phrases such as “looks good” or “we’re good” can be treated as acceptance depending on context.

### Forms of Assent: Written, Verbal, and Implied

- Written assent
  - Signed contracts and signed amendments are strong evidence of agreement.
  - Electronic signatures are valid under the federal E‑SIGN Act and state UETA laws if certain conditions are met.
  - Watch for initialed pages, order forms, and email threads that clearly state acceptance.

- Verbal (oral) assent
  - Oral contracts can be enforceable unless the Statute of Frauds requires a writing (e.g., many agreements for goods priced at \$500 or more under UCC §2‑201, certain real estate contracts, and agreements that can’t be performed within a year in many states).
  - Terms must be clear enough for a court to enforce.

- Implied assent by conduct
  - Accepting goods, using delivered products, or starting performance can show agreement.
  - UCC §2‑206 allows acceptance by shipping goods or beginning performance.
  - Silence rarely counts as acceptance (Restatement §69), except in limited situations (e.g., prior dealings or when a party takes the benefit with reason to know payment is expected).

### Electronic Assent: Clickwrap, Browsewrap, and Shrinkwrap

- Clickwrap (or “click‑to‑accept”)
  - Users must click “I agree” next to a clear link to terms. Courts regularly enforce these when notice is clear.
  - Meyer v. Uber (2d Cir. 2017): Enforceable because the screen clearly presented terms and required an unambiguous click.

- Browsewrap (terms linked at the bottom of a page without a required click)
  - Often unenforceable without clear, conspicuous notice and evidence that the user saw and accepted the terms.
  - Nguyen v. Barnes & Noble (9th Cir. 2014): Not enforced because the user was not on notice of terms.
  - Specht v. Netscape (2d Cir. 2002): Downloaders were not bound where terms were not clearly presented before installation.

- Shrinkwrap and terms in the box
  - ProCD v. Zeidenberg (7th Cir. 1996) and Hill v. Gateway 2000 (7th Cir. 1997) suggest that terms included in packaging can bind buyers if they have a chance to review and return the product.

- Recordkeeping
  - For online flows, keep logs that tie a user to the version of terms accepted (time, date, IP, device). This often decides whether a company can prove assent.

## Key Examples or Case Studies

- Written Agreements: John and Jane sign a lease. Their signatures show clear assent to the lease terms. Takeaway: signatures (wet or electronic) are strong proof of agreement.
- Verbal Agreements: Smith v. Brown (hypothetical). A phone call where both sides agreed to sale terms counted as assent. Takeaway: oral contracts can be valid if not barred by the Statute of Frauds or if an exception applies.
- Implied Assent: Johnson v. Doe (hypothetical). The buyer accepted and used delivered goods; the court found implied assent to the supplier’s terms. Takeaway: conduct can confirm agreement.
- Written Employment Contract: Williams v. Smith (hypothetical). A signed employment agreement showed clear assent to job terms. Takeaway: clear signatures and final terms reduce disputes.
- Objective Test Applied: Lucy v. Zehmer (Va. 1954). The court enforced a signed agreement despite a later claim of joking. Takeaway: outward words and actions control.
- Enforceable Clickwrap: Meyer v. Uber (2d Cir. 2017). The signup screen put the terms plainly next to the “Register” button and required an affirmative click. Takeaway: clear notice plus a required click usually works.
- Unenforceable Browsewrap: Nguyen v. Barnes & Noble (9th Cir. 2014) and Specht v. Netscape (2d Cir. 2002). Terms were too hidden. Takeaway: don’t rely on passive links for assent.

## Practical Applications

- Make acceptance unambiguous
  - State how acceptance occurs: “This offer may be accepted only by signing below,” or “Acceptance occurs when you click ‘I agree.’”
  - Use firm offer windows and expiration dates to avoid open-ended offers.
  - Use “subject to contract” language until you intend to be bound.

- Tighten your paper trail
  - Keep signed versions, email acceptances, purchase orders, and acknowledgments.
  - For goods, confirm essential terms in writing if UCC §2‑201 applies (price, quantity, parties).
  - Add an entire agreement clause so the written agreement is the final word.

- Handle battle of the forms (UCC §2‑207)
  - Align purchase orders and acknowledgments. State that acceptance is “expressly conditional” if you need to avoid extra terms.
  - Between merchants, additional terms may become part of the deal unless they materially alter it or the other side objects in time.
  - Expect “knock‑out” rules for conflicting terms in many jurisdictions.

- Manage implied assent
  - Don’t ship or accept goods until the governing terms are clear.
  - For service starts, send a cover email stating: “Service starts on X date under the attached terms unless you object before then.”

- Design enforceable online flows
  - Use clickwrap, not passive browsewrap.
  - Make the terms link conspicuous (font, color, proximity to the button).
  - Require users to check a box next to key clauses (e.g., arbitration, auto‑renewal).
  - Capture and store acceptance data (timestamp, version, IP).

- Avoid relying on silence
  - Train teams not to assume silence is acceptance, especially for price changes or renewals.
  - Where renewals are involved, follow state auto‑renewal laws on disclosures and cancellation.

- Reduce disputes before they start
  - Use plain language for offers and order forms.
  - Confirm material terms (price, quantity, delivery) in writing.
  - State how changes must be made (e.g., “changes must be in a signed writing”).

## Summary Checklist

- Use the objective test: focus on clear words and actions that show agreement
- Written and e‑signatures are solid evidence of assent
- Oral deals can be enforceable unless barred by the Statute of Frauds
- Conduct can show assent; silence rarely does
- For goods, confirm terms in writing if UCC §2‑201 applies
- Handle UCC §2‑207 issues in purchase orders and acknowledgments
- Use clickwrap with clear notice and an affirmative “I agree”
- Keep records that tie each user to the exact version accepted
- State how acceptance occurs and how changes must be made
- Avoid casual emails that can be read as acceptance unless that’s your intent

## Quick Reference

| Concept                   | Authority                            | Key Takeaway                                                          |
| ------------------------- | ------------------------------------ | --------------------------------------------------------------------- |
| Objective test of assent  | Lucy v. Zehmer; Restatement §19, §20 | Outward words and conduct control, not secret intent                  |
| Statute of Frauds (goods) | UCC §2‑201                           | Goods ≥ \$500 usually need a writing or a valid exception             |
| Acceptance by conduct     | UCC §2‑206; Restatement §69          | Shipment/performance can accept; silence rarely counts                |
| Battle of the forms       | UCC §2‑207                           | Additional terms may stick between merchants; conflicts may knock out |
| E‑signatures              | E‑SIGN Act; UETA                     | Electronic signatures and records carry legal effect                  |
| Online assent             | Meyer; Nguyen; Specht                | Clear notice plus an affirmative click is usually enforceable         |


Assent in U.S. Contract Law: Definition, Forms, and Key Cases