Suppose I wanted to make a website and put something absurd in the Terms of Service like this:

"To use the free version of the site, your full legal name must have 20 characters, you must have a pet snake, you must be born on February 29, your age must be an even number, and you must live between 10 and 11 miles of Washington D.C. If you do not meet any of these criteria, you must pay for a premium plan for $10/month."

Which of these conditions are enforceable (as in I could collect damages from a person for using the wrong plan)? Does it matter whether these conditions are only in the Terms of Service or displayed prominently on the website (or somewhere in between)?

This is a hypothetical scenario.

  • While the mention of "Washington DC" suggest you are asking about the US, this still should have a country tag. I live in Germany, and we have a law against "surprising clauses" that would invalidate right from the start the pet snake, and probably the rest unless you offer services specifically to people born in leap year (any clause that does not relate to you business would by definition be surprising). Also looking at a website does not constitute a contract, so the point of TOS would be moot. No idea how things work in the US, though.
    – user9838
    Jun 18, 2021 at 19:44
  • Hang on, full legal name? How are you defining legal name? Does that mean deadnames of trans people who haven't filed enough paperwork? Jun 19, 2021 at 18:41

1 Answer 1


which of these conditions are enforceable (as in I could collect damages from a person for using the wrong plan)?

The validity of the contract does not depend on the outlined conditions being that weird. These weird conditions are merely a way of saying that [almost] everyone is required to pay $10/month for using the website.

What determines the validity of the contract is the issue of whether users knew or [reasonably] should have known the ToS. If the website does not contain functionality toward reasonably ensuring that users become aware of the ToS prior to using the website, it will be unlikely or impossible for the website owner to establish that a contract was formed. In terms of Restatement (Second) of Contracts at §§ 17-20, users' reasonable misunderstanding would preclude a finding of mutual assent on which contracts are premised.

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