California Business Law


1

For the purposes of this questions, let's say I have a domain example.com. Eventually, I want to form Example LLC in California, where I live. However, at this point in time, I don't want to, because I'm not 18 and I'd prefer to do this on my own. Under California law, can I write a Terms of Service for my website (but where I don't sell anything) with Example instead of my name? The reason I ask this is because I understand you have to use your real name, establish an LLC/Corp, or file a DBA.

Legal

asked Feb 4 '10 at 15:12
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Waiwai933
163 points

2 Answers


2

A Terms of Service is a type of contract, and contracts can only bind legal entities (persons, natural or artificial (e.g. a corporation)). So you can't have a contract binding the visitor to something that doesn't exist.

According to this, a DBA wouldn't help you either, because under the same rules of capacity as above, a DBA doesn't have legal capacity.

Example: Alfreda Smith conducts her
florist business under the registered
fictitious business name, "Blooming
Right". Florist Supplies, Inc. wants
to enter into a contract with Blooming
Right to supply Blooming Right's stock
of tulips. As Blooming Right is not a
legal entity and only a DBA ("doing
business as", another term for a
fictitious business name), Blooming
Right does not have legal capacity to
enter into the supply contract with
Florist Supplies, Inc..

As always, for an answer you can count on, you should seek legal advice from a lawyer (which this is, and I am, not). You may also want to drop a line to Mark Bao, and see if he'd be willing to tell you about his experiences setting up companies as a minor.
answered Feb 4 '10 at 15:29
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Jay Neely
6,050 points

0

Yes, you "can" write Terms of Service. The issue, then, will be how many problems you are creating:

  1. By not having a separate legal entity, you will be taking on personal liability for this business venture - and you may not be able to discharge that personal liability even once the LLC is created. Please see Pre-formation Contracts: Avoiding Personal Liability.
  2. As a minor, you generally can enter into contracts, and even have the right, subsequently, to reject them - please see Contracts with Minors can Lead to Major Problems. But by not letting users know that you are a minor, and further by hiding your existence behind the name of a non-existent company, you are committing fraud and, quite possibly, a variety of other civil and criminal violations.
  3. Separately from the preceding considerations, the likelihood that you will do a good job of writing your own TOS is modest. Please see, for example, Terms of Use and the Digital Millennium Copyright Act (DMCA).

Disclaimer: This post does not constitute legal advice and does not establish an attorney-client relationship.

answered Feb 5 '10 at 09:38
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Dana Shultz
6,015 points

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