united-states contract-law
Are terms of service that are not accessible until the supposed binding action has already been taken enforceable?
<p>I used the <code>whois</code> Linux command to look up information for <code>mit.edu</code>:</p>
<pre><code>$ whois mit.edu 
This Registry database contains ONLY .EDU domains.
The data in the EDUCAUSE Whois database is provided
by EDUCAUSE for information purposes in order to
assist in the process of obtaining information about
or related to .edu domain registration records.

The EDUCAUSE Whois database is authoritative for the
.EDU domain.

A Web interface for the .EDU EDUCAUSE Whois Server is
available at: http://whois.educause.edu

By submitting a Whois query, you agree that this information
will not be used to allow, enable, or otherwise support
the transmission of unsolicited commercial advertising or
solicitations via e-mail.  The use of electronic processes to
harvest information from this server is generally prohibited
except as reasonably necessary to register or modify .edu
domain names.

-------------------------------------------------------------

Domain Name: MIT.EDU

Registrant:
    Massachusetts Institute of Technology
    77 Massachusetts Ave
    Cambridge, MA 02139
    USA

Administrative Contact:
    Mark Silis
    Massachusetts Institute of Technology
    MIT Room W92-167, 77 Massachusetts Avenue
    Cambridge, MA 02139-4307
    USA
    +1.6173245900
    mark@mit.edu

Technical Contact:
    MIT Network Operations
    Massachusetts Institute of Technology
    MIT Room W92-167, 77 Massachusetts Avenue
    Cambridge, MA 02139-4307
    USA
    +1.6172538400
    noc@mit.edu

Name Servers:
    EUR5.AKAM.NET
    USW2.AKAM.NET
    ASIA1.AKAM.NET
    USE5.AKAM.NET
    USE2.AKAM.NET
    ASIA2.AKAM.NET
    NS1-173.AKAM.NET
    NS1-37.AKAM.NET

Domain record activated:    23-May-1985
Domain record last updated: 08-Jun-2021
Domain expires:             31-Jul-2024
</code></pre>
<p>If this had been the first WHOIS request I had submitted on a <code>.edu</code> domain, I would not have had a chance to read the terms of service. Would these ToS be binding on my first request? Of course, they are binding for later requests, because I have [had a chance to] read them.</p>

<h2>No</h2>
<p>One of the fundamental <a href="https://law.stackexchange.com/questions/6263/what-is-a-contract-and-what-is-required-for-them-to-be-valid">requirements</a> for an enforcable contract is that there must be agreement - you cannot agree to something you can't know. You can agree to something you don't know if you were given the opportunity to find out and didn't.</p>
<p>However, the information you receive is not part of a contract since there is no consideration flowing from you to the Registry. Therefore, it must be a gift. However, gifts cannot come with conditions subsequent; I can impose conditions that you need to satisfy before I will give you the gift but I cannot require anything of you afterwards - that would make it a contract. Note that if you doing the conditions <em>requires</em> me to give the gift, then that makes it a contract too, however, if I still have discretion about giving the gift even if you fulfill the conditions, it's still a gift.</p>
<p>For your first call to a .edu domain, you would not be bound by this condition. For all subsequent calls, you would be.</p>
<p>Of course, &quot;the transmission of unsolicited commercial advertising or
solicitations via e-mail&quot; is illegal anyway.</p>
