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Not sure how this constitutes fraud? Since when can't you alter the terms of a contract? It's not his fault they didn't read it. They sure hold other people
by mahgnous 11y ago
Not sure how this constitutes fraud? Since when can't you alter the terms of a contract? It's not his fault they didn't read it. They sure hold other people accountable when they don't read theirs.
- m_eiman 11y agoIf you modify a form letter before sending it back without notifying the other party of the changes, I'd say it's reasonable that the contract is either invalid or should be treated as unmodified.
- jsprogrammer 11y agoModification is notification.
- vog 11y agoCare to elaborate?
- jsprogrammer 11y agoIs there more to elaborate on? How else would one notify of a modified contract, but by producing the modified contract? It is not the receiving party's responsibility to determine if something they receive is another party's form letter, or other spam-like.
- argonaut 11y agoObviously, none of us know what specific language he used in talking to the bank, and IANAL, but if the bank said something along the lines of "here's the contract we'd like you to sign", and he replied along the lines of "here's the contract I've signed that I'd like you to sign", it would be acting in bad faith to not tell the bank you've changed the contract.
- jsprogrammer 11y agoA contract is not enforceable if it was not read by both parties accepting it. If banks don't read what they sign...fuck'em.
- argonaut 11y agoAgain, we don't know what actually happened, but presumably they read what they sent over to him.
- jsprogrammer 11y agoThen there is no issue. They received notification.
- argonaut 11y agoThey did not receive notification under the hypothetical scenario I described (the hypothetical scenario where he doesn't tell the bank that he changed the contract).
- jsprogrammer 11y agoSo, they received the new text, read it, and accepted it, but they were never notified of the new text? It seems like you are requiring some out-of-band signalling? What should the specs be for that other signalling mechanism?
- argonaut 11y agoYes. Out of band signaling is required. Like saying in the email "I've changed the contract, here are the new terms."
- jsprogrammer 11y agoI don't know of any banks that process CC contracts by email. My guess is that he filled out the application forms, set the terms of the contract how he desired them, left a note on top of it all to the effect of, "BTW, I changed the terms, lol. You should probably read them.", stuffed it in an envelope and mailed it to the bank. A bank clerk probably received the envelope, looked to make sure the application form was filled out and the contract signed, then marked in the bank's database that the requisite documents had been received.
- _delirium 11y agoThe usual process is to conspicuously red-line a contract, so your changes are clearly visible (traditionally, highlighted in red ink), along with a notification up front that you're sending back a revised contract. From the article it's not entirely clear to me what form his modifications took: > [He] scanned it into his computer, altered the terms and sent it back to Tinkoff Credit Systems. By this do they mean he did something like "photoshop" the scanned contract, producing a result that looks as similar as possible to the original, but with some parts digitally modified? That would be a bit more misleading, if so.
- jsprogrammer 11y agoMy guess is that he wanted substantially similar terms, except for a few modifications. It's far easier to modify the existing contract than to write up an entire new one in that case. The other party still has the right of refusal. If they still do not wish to sign the contract after reading it, that is a choice available to them. If they choose to sign the contract without reading it...well...many people are bad at contracts...not the least of whom, are often banks.
- prof_hobart 11y agoDon't know about Russian law, but that's certainly not true everywhere In the UK for instance, if you're changing credit card terms, you'd be expected to send a notice of variation looking something like this (https://www.hsbc.co.uk/content_static/en/pdfs/en/nov_general_terms_wf.pdf?WT.ac=HBEU_links_SEM_AGTC_NOV_0710 https://www.hsbc.co.uk/content_static/en/pdfs/en/nov_general...)
- jsprogrammer 11y agoWhat would expect that from me? HSBC and their policies?
- prof_hobart 11y agoA court expecting the contract to be legally binding.
- vog 11y agoIndeed. It would have been different if he hadn't used their form but his own layout. Or, if he had marked the change clearly as such.
- Glyptodon 11y agoWhat counts as notification?
- hugh4 11y agoThat's precisely the sort of thing we have courts, and vast quantities of precedent, to decide. Don't make the classic programmer's mistake of expecting everything in the law to need to be as well defined as things are in mathematics. Judges will quite happily decide what a term means on the fly, consistent with precedent and reasonableness, to stop you getting away with anything completely ridiculous.
- eyeJam 11y agoExactly. I think programmers assume that law is a simple application of rules to facts, and that a computer could do it better/faster/cheaper than humans. But in fact there is so much subtlety and nuance to it that I don't understand how computers could ever do it. I mean, you're trying to persuade a human being that your version of the facts is more compelling than your opponents. Last time I checked computers were not very persuasive orators or writers....
- 1stop 11y agoI don't know, having been through a number of B2B contract negotiations (in Australia). It is not at all surprising for one party to make changes without highlighting. I've even seen track changes on a word document disabled, changes made, and then reenabled so as to intentionally hide word changes. You only have to notify people of a change, if it's already signed (and generally that's because your contract will have some form of amendment system that involves notification).
- cowsandmilk 11y agoeither Australia is either much more permissive about that or your negotiations got really nasty. I've been through many B2B negotiations, many of them reaching awful levels of yelling, but the lawyers always red-lined their changes as they undid other side's changes dozens of times.
- 1stop 11y agoI suspect it's to do with different industries and the use of internal/external lawyers.
- guan 11y agoWhether or not there is redlining, when you go back and forth in a negotiation, it’s clear that there might be changes, and you would check for changes and perhaps do a complete review at the end of negotiations, before signing. It’s somewhat different if the initial contract offer is a preprinted form contract and it is returned apparently signed.
- gogaoa 11y agoAkamai has done this to me; with their salesmen making material changes to terms and conditions without redlining (and without any related discussion), despite redlining other changes in the doc. Akamai's abuse on this front is the reason that we stopped trusting 'track changes' and started doing full-text diffs.
- m_eiman 11y agoIMHO there's a difference between two parties negotiating from a clean slate, adding and removing things back and forth, and someone sending out a "take or leave it" contract form with clearly no intention on modifying the terms.
- CrazyCatDog 11y agoThe messy question here is: who is to say that he modified the contract?
- PaulAJ 11y agoIn common law systems (including the UK and US) a contract is a "meeting of minds" (that is, you and I both agree on the terms). The writing merely makes clear what has been agreed, but if one side has been tricked then its still fraud. So if a salesman says "never mind the fine print, it just says you can cancel the contract at any time" when in fact the fine print locks you in to paying silly amounts for the next 5 years, then that is deception and hence fraud. In this case its reasonable to suggest that by submitting his altered contract without drawing the banks attention (e.g. by putting at the front "here are my proposed terms") then not only does the bank not have to abide by them, but he was guilty of deception by trying to trick the bank into signing up to them. Normally these rules are used to protect consumers from fine print proffered by suppliers. For instance https://en.wikipedia.org/wiki/Interfoto_Picture_Library_Ltd_v_Stiletto_Visual_Programmes_Ltd https://en.wikipedia.org/wiki/Interfoto_Picture_Library_Ltd_... established that unusual or onerous terms cannot be hidden in a page of fine print and still be enforceable. But the rules apply the other way around too.
- guard-of-terra 11y agoHow are EULAs "meeting of minds"? You are supposed to read them after you're already paid money. And agree. You don't get any chance on meeting minds. EULAs were inflicted on the rest of the world by US (which has common law system) and are of questionable legality in many countries.
- njharman 11y agoConsider an extreme case. Micro printing terms that unless you use a magnify look like a horizontal line between sections. If those terms are onerous and benefit only the side that added them, It's arguable (pretty easily IMO) that the side added them did so with intention and belief the other side would not notice them and sign contract whose terms they were not fully aware of. Fraud. Less extreme is reprinting contract to look as close as possible to the original but with added extremely one sided terms. It's debatable how much that side intended for those new terms to be overlooked. Life is a spectrum. That is why we have courts to argue where on that spectrum a particular example lies. Contracts aren't deals with the devil. They are never meant to support "haha I tricked you now you are fucked" deals. They are legal support for an agreement between two cognizant and willing participants. Further more, at least in US, unsophisticated parties are protected from contracting away certain rights and from contracts which are wholly one-sided.
- avn2109 11y ago>> "...with intention and belief the other side would not notice them and sign contract whose terms they were not fully aware of." This is a complete and accurate description of every contract I've ever been asked to sign. My apartment lease, my phone bill, etc were all written such that in practice I have no choice but to sign them blindly.
- chucksmash 11y ago"All written such that in practice I have no choice but to sign them blindly" I'm guilty of just clicking through in the general case but I've always read apartment leases. My wife's first apartment she just signed without reading and then when we went to move in together discovered there was no clause in the contract for early termination (apart from the required stuff for Reservists who are called up). The office's stance was quite literally: "sure, you can get out of your lease early - by paying us all the remaining rent or putting your name on this subleasing waitlist and waiting for someone to take your spot." At the very least, find that part of the leasing contract and read it.
- orless 11y agoIn Germany, for instance, if you fail to advertise important clauses correctly, the contract may void. This is often applied in cases like "download sites" which allow you to download Firefox and likes for free - but in the contract you sign up for some kind of subscription for 4.99 Euros a month. Edit: abonnement -> subscription, thanks to @taejo.
- taejo 11y agoBTW, the English word for abonnement is subscription.