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If 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
by m_eiman 11y ago
If 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?