united-states contract-law
Can I be contractually bound by terms accompanying an unsolicited document?
<p><em>This is just a contract question,</em> and I am not concerned with the intellectual property implications at this point.</p>

<p>I'm in the US.</p>

<p><strong>The scenario</strong>: Suppose I was given an unsolicited document, so at no point did I agree to receive it or any terms attached to it. The document expressly states, however, that I may not electronically reproduce or even print the document without the owner's prior consent. Although I did not agree to these terms on receipt, so there is no mutual assent there, is there any legal theory under which I could be bound by those restraints?  E.g., if I print or email the document without the owner's consent could I be liable under the document's terms (similar to a click-wrap or browse-wrap)?</p>

<p>There are a few different issues at play here, and one of them is copyright law, which can't be ignored in your example.</p>

<p>As a general rule, a contract is formed when there's a "meeting of the minds." This means that two people agree to a deal, and once they agree, they are both bound by it.</p>

<p>In practice, this means that some sort of consent is required before you are bound by the terms of a contract. This can be signing on a dotted line; it can be opening a shrinkwrapped package or clicking "Okay" on the iTunes terms and conditions. It can be boarding the ship using the ticket with the disclaimer printed on it, even if you never turned the ticket over and read it.</p>

<p>But I can't, for instance, send you a poem, along with a note saying that according to our new contract, you owe me $10,000 dollars for it.</p>

<p>The question of what constitutes assent, and what is and isn't enforceable, in shrinkwrap and other adhesion contracts, is fairly contentious, and if this affects you, you need to talk to a lawyer licensed in your jurisdiction. But in general, you can't create a contract unilaterally.</p>

<p>But that's separate from the question of whether the actual terms you give are enforceable. If the sender holds the copyright on the document, then they absolutely have the right to say that you can't copy it--but that's another extremely complex area of law that is going to depend on the specifics of your situation.</p>

<p>In summary a common law contract requires (Australian Business Law 2002 p. 5-020):</p>

<ol>
<li>Intention to create legal relations. <em>Do the parties really intend to be legally bound? Or is the arrangement purely "non-business"?</em></li>
<li>Agreement. <em>Offer and acceptance, when communicated to each other, or equivalent evidence of a concluded agreement, make up an agreement.</em></li>
<li>Consideration. <em>Unless the agreement is reinforced by "something for something", it will not be considered a legally enforceable agreement or contract.</em></li>
<li>Legal Capacity. <em>Is the agreement made while one party lacks legal capacity, for instance is under age or under the influence of alcohol?</em></li>
<li>Genuine Consent. <em>Questions arise in this context as to what was actually agreed. What if the goods contracted for have sunk at sea?</em></li>
<li>Legality of Objects. <em>A contract formed for an illegal purpose cannot be upheld.</em></li>
</ol>

<p>The circumstances you describe do not meet 1, 2 &amp; 3 above so there is no contract when you receive the document.</p>

<p>Since you have specifically excluded IP issues (which may not apply in any case as the document in question may not have copyright protection): dealing with the document in the way you describe &ndash; against the owner's express wishes &ndash; would probably constitute both the crime and tort of <a href="https://en.wikipedia.org/wiki/Trespass_to_chattels" rel="nofollow">trespass to chattels</a>. </p>
