When is a contract not a contract
Discussion
JustinP1 said:
Really???
Yes, he said they had undertaken to print the first ad, but that they said he had to agree to the terms before they would do the second. So the magazine has made it clear they are not, by printing this, agreeing to what he wants in the long term. They are just hoping he will give in, knowing that in the worst case they will not get paid for what they have already printed. rich888 said:
A little bit of past history:
We've been advertising in the magazine for many years, it has changed owners several times over this time-period.
In the past we have just received a quick call from the rep to ask whether we wanted to run the ad again for another 12 months period and this has worked just fine. There have been a few lapses in advertising through the years when they have tried to increase the price of the ad at which point we have declined their offer.
On this particular occasion the previous 12 months advertising had finished so the rep phoned up to ask whether we wanted to run the ads again for another 12 months, then tried it on with the advertising rate to which I declined. She rang back a few hours later after having discussed the lower rate with her manager at which point we came to an agreed price per month for 12 months. She said she would confirm the order with me via email.
Said email was received a few days later containing a link which I had to click on for the order to be accepted.
I ignored this because that wasn't what had been agreed over the phone.
A few days later she was on the phone again pestering me to click the link to accept their long winded terms and conditions, at which point I said no.
Fast forward a few weeks and her manager is on the phone telling me that the rep no longer worked for the company and although they had placed the first advert in the magazine, no further ads would be placed until I accepted their T & C, to which I replied I would not be doing.
At the end of the day I'm not bothered whether the advert runs or not because most of our customers use Google nowadays, but what I don't like is the fact that they can force customers to accept T & C after the deal has been done.
And apologies if this type of thread has been posted many times before, I did have a trawl through previous posts but didn't see any.
As for that sarcastic reply from un1corn "When it's ajar?" very droll, made me laugh.
Thoughts from BV would be much appreciated, I happen to enjoy reading his dry wit on here
What t&cs had you agreed in previous years?We've been advertising in the magazine for many years, it has changed owners several times over this time-period.
In the past we have just received a quick call from the rep to ask whether we wanted to run the ad again for another 12 months period and this has worked just fine. There have been a few lapses in advertising through the years when they have tried to increase the price of the ad at which point we have declined their offer.
On this particular occasion the previous 12 months advertising had finished so the rep phoned up to ask whether we wanted to run the ads again for another 12 months, then tried it on with the advertising rate to which I declined. She rang back a few hours later after having discussed the lower rate with her manager at which point we came to an agreed price per month for 12 months. She said she would confirm the order with me via email.
Said email was received a few days later containing a link which I had to click on for the order to be accepted.
I ignored this because that wasn't what had been agreed over the phone.
A few days later she was on the phone again pestering me to click the link to accept their long winded terms and conditions, at which point I said no.
Fast forward a few weeks and her manager is on the phone telling me that the rep no longer worked for the company and although they had placed the first advert in the magazine, no further ads would be placed until I accepted their T & C, to which I replied I would not be doing.
At the end of the day I'm not bothered whether the advert runs or not because most of our customers use Google nowadays, but what I don't like is the fact that they can force customers to accept T & C after the deal has been done.
And apologies if this type of thread has been posted many times before, I did have a trawl through previous posts but didn't see any.
As for that sarcastic reply from un1corn "When it's ajar?" very droll, made me laugh.
Thoughts from BV would be much appreciated, I happen to enjoy reading his dry wit on here
How did you know that the t&cs behind the link were different to what you'd agreed in previous years without clicking the link?
What don't you like in the new t&cs?
Z.B said:
JustinP1 said:
Really???
Yes, he said they had undertaken to print the first ad, but that they said he had to agree to the terms before they would do the second. So the magazine has made it clear they are not, by printing this, agreeing to what he wants in the long term. They are just hoping he will give in, knowing that in the worst case they will not get paid for what they have already printed. They did not perform that action under an agreement for a single advertisement, it was the first of twelve.
Yes, they are hoping that that OP will give in. That's not what the OP is asking though.
I'll put this succinctly:
There was from the outset a 12 month agreement. After the formation of contract, the magazine looked to vary this days later, sending additional terms. The OP rejected those additional terms.
By printing the advert the OP has supplied, this is irrefutable evidence that they fully intended to be bound by the formality of contract with the knowledge that the term were not accepted. The idea that just co-incidentally they chose to do the OP a freebee is simply unbelievable.
The point is that after deciding to be bound by contract, they now deem that for commercial reasons they want to alter the terms. What is quite telling is that the company are pulling up all kinds of bulls
t reasons including the fact that they've let go an employee a reason why they are not bound. Courts are there to uphold the terms of a contract, and do not support parties who decide after entering into an agreement that it no longer suits them, or for financial reasons no longer wish to proceed.
JustinP1 said:
He said no such thing. Read the OP again. After printing the advert the first time, the magazine would rather not do it again under the same terms. That doesn't mean that they are legally allowed to though.
They did not perform that action under an agreement for a single advertisement, it was the first of twelve.
Yes, they are hoping that that OP will give in. That's not what the OP is asking though.
I'll put this succinctly:
There was from the outset a 12 month agreement. After the formation of contract, the magazine looked to vary this days later, sending additional terms. The OP rejected those additional terms.
By printing the advert the OP has supplied, this is irrefutable evidence that they fully intended to be bound by the formality of contract with the knowledge that the term were not accepted. The idea that just co-incidentally they chose to do the OP a freebee is simply unbelievable.
The point is that after deciding to be bound by contract, they now deem that for commercial reasons they want to alter the terms. What is quite telling is that the company are pulling up all kinds of bullst reasons including the fact that they've let go an employee a reason why they are not bound.
Courts are there to uphold the terms of a contract, and do not support parties who decide after entering into an agreement that it no longer suits them, or for financial reasons no longer wish to proceed.
Nope. The 'new' terms and conditions were on the confirmation email. Not unreasonable. The OP 'ignored' these by his own admission. They did not perform that action under an agreement for a single advertisement, it was the first of twelve.
Yes, they are hoping that that OP will give in. That's not what the OP is asking though.
I'll put this succinctly:
There was from the outset a 12 month agreement. After the formation of contract, the magazine looked to vary this days later, sending additional terms. The OP rejected those additional terms.
By printing the advert the OP has supplied, this is irrefutable evidence that they fully intended to be bound by the formality of contract with the knowledge that the term were not accepted. The idea that just co-incidentally they chose to do the OP a freebee is simply unbelievable.
The point is that after deciding to be bound by contract, they now deem that for commercial reasons they want to alter the terms. What is quite telling is that the company are pulling up all kinds of bulls
t reasons including the fact that they've let go an employee a reason why they are not bound. Courts are there to uphold the terms of a contract, and do not support parties who decide after entering into an agreement that it no longer suits them, or for financial reasons no longer wish to proceed.
rich888 said:
A little bit of past history:
Said email was received a few days later containing a link which I had to click on for the order to be accepted.
I ignored this because that wasn't what had been agreed over the phone.
A few days later she was on the phone again pestering me to click the link to accept their long winded terms and conditions, at which point I said no.
Of course the devil lies in the detail of what exactly was said on the phone and by email.Said email was received a few days later containing a link which I had to click on for the order to be accepted.
I ignored this because that wasn't what had been agreed over the phone.
A few days later she was on the phone again pestering me to click the link to accept their long winded terms and conditions, at which point I said no.
On the face of it though:
1) Agreement in principal was reached over the phone subject to confirmation email.
2) Terms were sent on said email.
3) The OP rejected those terms.
4) The magazine continued based upon the knowledge that the OP did not agree to the additional conditions. Thus, that contract is based upon what was orally agreed, or verbally agreed in emails before the supply of terms.
That said, in practical advice, I'd run a mile from them anyway.
Edited by JustinP1 on Thursday 26th February 23:51
JustinP1 said:
Of course the devil lies in the detail of what exactly was said on the phone and by email.
On the face of it though:
1) Agreement in principal was reached over the phone subject to confirmation email.
2) Terms were sent on said email.
3) The OP rejected those terms.
4) The magazine continued based upon the knowledge that the OP did not agree to the additional conditions. Thus, that contract is based upon what was orally agreed, or verbally agreed in emails before the supply of terms.
Agreed, apart from 4. Intention is important here, and from what's been written it's clear that the magazine intended that the OP agree to the terms before they fulfil the contract. The fact they started work in anticipation of agreement doesn't mean they have to carry on - just that it's their risk to do so. Yes, under slightly different circumstances that first ad could be seen as a kind of acceptance, but the communication here is enough to refute it. I guarantee if this went to court the OP would be shafted. The magazine will produce that confirmation email and it's for the OP to prove on balance that wasn't what was agreed. And how is he going to do that? And that's before he addresses the question of whether there even was a contract before that email. On the face of it though:
1) Agreement in principal was reached over the phone subject to confirmation email.
2) Terms were sent on said email.
3) The OP rejected those terms.
4) The magazine continued based upon the knowledge that the OP did not agree to the additional conditions. Thus, that contract is based upon what was orally agreed, or verbally agreed in emails before the supply of terms.
Edited by JustinP1 on Thursday 26th February 23:24
Oh, and there's also the issue of whether loss has been incurred. The OP has already implied that the ad doesn't bring business, and presumably no money has changed hands. If there's no quantifiable damage then there's no case to answer.
Z.B said:
Agreed, apart from 4. Intention is important here, and from what's been written it's clear that the magazine intended that the OP agree to the terms before they fulfil the contract.
Quite.However, the fundamental issue is the fact that the magazine subsequently decided that they did not need those terms to be accepted to complete the contract.
The actions cannot be interpreted in any other rational way. 'Doing a freebee' I don't think is a plausible defence.
Take this down to base concepts:
You knock on my taxi window, I say it's £100 to go to London, you agree and get in the taxi.
When you're sat in the back, I tell you that I can't carry your dog in the car, as it smells. You tell me you're not leaving your dog behind, and in response, I drive off towards London.
20 miles down the road, it is a lawful action that I can dump you at a service station and claim there was no contract in place?
Or is it deemed that I accepted your counter offer that you would not leave your dog when I drove off?
Or alternatively, I agree to pay £100 to go to London. You tell me I have to stop drinking the special brew. I refuse. You really need the fare so start driving anyway, but warn me not to open another can. 5 miles down the road I do open another can, and look like I'm about to vomit. You refuse to take me any further. Are you obliged to keep going?
I don't know why you have such difficulty with this aspect. The magazine did not complete the contract, they only started it with the explicit proviso that they would only complete if terms were agreed. If I set up a new gas supplier but don't pay my bill they will keep supplying for a considerable time while trying to get me to pay, before giving up. Does this mean they are contractually obliged to keep doing it?
I don't know why you have such difficulty with this aspect. The magazine did not complete the contract, they only started it with the explicit proviso that they would only complete if terms were agreed. If I set up a new gas supplier but don't pay my bill they will keep supplying for a considerable time while trying to get me to pay, before giving up. Does this mean they are contractually obliged to keep doing it?
Z.B said:
I don't know why you have such difficulty with this aspect. The magazine did not complete the contract, they only started it with the explicit proviso that they would only complete if terms were agreed.
I have a problem with that because that's not what occurred.Both parties were negotiating terms. The magazine wanted to introduce additional terms, the OP said no.
The magazine could have walked away. But they did not, they began to perform the contract. That action is the acceptance of the terms in place (those ones agreed) at that time.
This is basic contract law with case law more than 100 years old.
Edited by JustinP1 on Friday 27th February 08:45
swerni said:
Someone who is a lawyer says
PHer has not done that so actually made a counter offer, which was rejected.
Also, no consideration has passed. So no valid contract.
With respect to the author, I have a problem with both of those statements. You can call me a fuddy-duddy because this basic stuff I learnt 15 years ago but:PHer has not done that so actually made a counter offer, which was rejected.
Also, no consideration has passed. So no valid contract.
1) The magazine did not reject the OP's counter offer, after his statement that he would not agree to additional terms, they went ahead and printed his advert.
2) Consideration does not have to actually have passed to form a contract. In any case;
3) The magazine printed the advert, that is their consideration. The OP's consideration is whatever was agreed to pay for the service over the 12 months.
I totally agree that this is not something I would go to court over. However, the OP was asking the technical question.
Playing that scenario out, he would rely on the action of printing the advert as acceptance of his counter offer, and formation of contract.
It would then be for the magazine to put forward why this would not be acceptance communicated to the OP. I think they'd have a difficult time. They might claim mistake, for example, but they've not done that, they are relying on the fact that it was s bad bargain entered into an ex-employee - neither of which is a legitimate defence.
It may be worth adding that when I went toe to toe with a big publishers group solicitor over exactly the issue of late incorporation of terms, not only did I end up not paying a penny for the two services, but in the end they also paid towards my copywriting costs.
Edited by JustinP1 on Friday 27th February 12:39
Z.B said:
JustinP1 said:
That's not how it works in law though. Yes, there is no need in law for a tick box, but there is a need in law to supply terms before a contract is entered into, otherwise those terms are no part of the contract.
If a contract existed before the terms were supplied, if later terms were not accepted this does not nullify a contract.
The contract was for 12 adverts, the company cannot unilaterally change that agreement after one advert any more than a builder can renegotiate a fixed price house build after he's put in the foundations.
I think you take a narrow view. The time a contract is agreed doesn't have to be the time it comes into effect. In this case the magazine clearly intended that it was subject to conditions. The conditions were rejected, therefore no contract. However, if he'd waited 2 months to read the terms and accepted them it makes no difference to the effective date. The problem comes when people don't read the terms at the time and then try to wriggle out of it later on. Then it's for the court to determine whether a contract was formed, but simply not bothering to read the terms doesn't prevent there being a contract. If a contract existed before the terms were supplied, if later terms were not accepted this does not nullify a contract.
The contract was for 12 adverts, the company cannot unilaterally change that agreement after one advert any more than a builder can renegotiate a fixed price house build after he's put in the foundations.
The contract was formed when the advertiser's employee, with ostensible authority to bind their employer, agreed to a deal. That's it. Contract formed. UNLESS ar the time of the agreement they stayed unequivocally that it was subject to contract.
From the OPs statement of the events, the person on the other end of the phone sought manager approval and then agreed a deal. That's it. Contract formed.
Your ramblings on effective date are irrelevant.
Z.B said:
JustinP1 said:
That's not how it works in law though. Yes, there is no need in law for a tick box, but there is a need in law to supply terms before a contract is entered into, otherwise those terms are no part of the contract.
If a contract existed before the terms were supplied, if later terms were not accepted this does not nullify a contract.
The contract was for 12 adverts, the company cannot unilaterally change that agreement after one advert any more than a builder can renegotiate a fixed price house build after he's put in the foundations.
I think you take a narrow view. The time a contract is agreed doesn't have to be the time it comes into effect. In this case the magazine clearly intended that it was subject to conditions. The conditions were rejected, therefore no contract. However, if he'd waited 2 months to read the terms and accepted them it makes no difference to the effective date. The problem comes when people don't read the terms at the time and then try to wriggle out of it later on. Then it's for the court to determine whether a contract was formed, but simply not bothering to read the terms doesn't prevent there being a contract. If a contract existed before the terms were supplied, if later terms were not accepted this does not nullify a contract.
The contract was for 12 adverts, the company cannot unilaterally change that agreement after one advert any more than a builder can renegotiate a fixed price house build after he's put in the foundations.
The contract was formed when the advertiser's employee, with ostensible authority to bind their employer, agreed to a deal. That's it. Contract formed. UNLESS ar the time of the agreement they stayed unequivocally that it was subject to contract.
From the OPs statement of the events, the person on the other end of the phone sought manager approval and then agreed a deal. That's it. Contract formed.
Your ramblings on effective date are irrelevant.
JustinP1 said:
I have a problem with that because that's not what occurred.
Both parties were negotiating terms. The magazine wanted to introduce additional terms, the OP said no.
The magazine could have walked away. But they did not, they began to perform the contract. That action is the acceptance of the terms in place (those ones agreed) at that time.
This is basic contract law with case law more than 100 years old.
I have the benefit of spending some time with a commercial lawyer, who agrees with me on this.... If they went ahead without saying anything this could be construed as acceptance, but in this case they made it clear through communication they didn't intend to be bound this way. The evidence overall indicates a lack of agreement. Both parties were negotiating terms. The magazine wanted to introduce additional terms, the OP said no.
The magazine could have walked away. But they did not, they began to perform the contract. That action is the acceptance of the terms in place (those ones agreed) at that time.
This is basic contract law with case law more than 100 years old.
Edited by JustinP1 on Friday 27th February 08:45
If the terms were not mentioned on the phone, and there was consideration then there may be a contract not incorporating the terms in question. But the OP will have to prove that, and even then there's probably nothing in it for him.
It was suggested he consider changing tack and sue for copyright infringement instead, if the advert was his intellectual property. I think tongue in cheek....
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