Re-signing a Data Contract for Zilch..

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MikeGayner

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#241121 1-Aug-2009 00:15

NonprayingMantis: IANAL, but for their to be a contract there has to be some consideration.

http://en.wikipedia.org/wiki/Consideration

"Consideration is a concept of legal value in contract law. It is a promised action, or omission of action, that the promisee did not already have a pre-existing duty to abide by. It can take the form of money, physical objects, services, or a forbearance of action. Both parties to a contract must pass consideration to the other party for there to be a valid contract."

If she has had nothing from the contract (no discount, no new hardware etc) then you could find that the contract is invalid.

NB.? Consideration does not usually have to be a fair value, it can be anything you like ($1 for example), but it must be there on both sides.

You know what I'm sick of? Some dickhead on a forum who has done some basic level 1 law paper or similar and thinks they're an expert on contractual law. "Consideration" isn't some code word for a free phone. She gives them money, they give her a phone service. There's a term involved. Have you ever leased a property? Notice how you are committing yourself to a certain period? This occurs for the benefit of both the seller and the purchaser - there is security and comfort in knowing you have a certain deal for a certain period of time. That doesn't mean your landlord has to throw in a free boat or something.

The bottom line is she signed a contract and she committed herself. Presumably if this were the other way around (eg Vodafone trying to weasel out of the contract somehow) then you would be a lot less cavalier in your attitude toward the agreement.

savag3

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#241131 1-Aug-2009 04:00

MikeGayner is correct - consideration is not relevant here. I would also add that Wikipedia is a bad place to go for NZ law. Most of it is US or UK law which can be quite different to the NZ position.

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#241159 1-Aug-2009 10:05

If was I was the person involved, I'd write exactly what happened, what the dealer claimed and send it in to Vodafone as a complaint. Have a look at http://www.vodafone.co.nz/help/contact-us/index.jsp# to find out where to send it to.

If there was no handset subsidy, no discount in pricing (so no reason to sign another fixed term contract as opposed to being open term), you might find they'll come to the party - particularly if she has been a long-term customer or will carry on using their services. They've done that with me once or twice and that resulted in my wife keeping her connection for years more than she needed (eventually once her phone broke, she ported her number to Telecom).

MikeGayner, I'm not a moderator here but as a fellow GZ member - please refrain from that language. There is no need to refer to people as dickheads.

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#241185 1-Aug-2009 12:14

I've banned MikeGainer because I have already asked him not to call people names.

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#241188 1-Aug-2009 12:23

MikeGayner:
Yes my sister re-signed a contract for two years and in doing so, agreed to a break fee.??

Frankly, that's the only important sentence in this thread. I don't understand why so many people sign contracts, but are unwilling to follow through with their commitments. If the contract were grossly mirepresented I could see the problem. But it seems to me she knowingly signed a two year contract (which she probably didn't read), and now wants to get out. Which is fine, but if you committed to a break fee, then just pay it.

I think in this case there was misrepresentation.

woody99: I agree - that's why I included the sentence....

However, I suspect, having spoken to another VFNZ rep, that there was certainly an element of misrepresentation. What has my sister committed to? A free phone? Subsidised plan? Vodem upgrade? Nothing of the sort - simply some extra commission from a dodgy rep. She was told her monthly costs would reduce if she "signed here". They did not.

What did she get to warrant a $300 break fee - perhaps you need to re-read my initial post.

A "contract" is only there to guarantee that you will stick with the provider for a set term. The "plan" is not linked to the contract as part of the term.

After the "contract" is finished", the customer is free to change service configuration with the telco or move to another provider. However, the end of the "contract" is not the end of "plan". The "plan" remains in place after the end of the contract if the customer has not asked to have it changed.

It sounds like a salesperson wanted to get a commision and lied to your sister about having to sign a "contract" to keep the "plan" - which is incorrect.

As for the ever growing charges, I'd say your sister simply used more than she was entitled to, and Vodafone billed for the usage. If she was using it as the main broadband access, I am sorry to say, that was a poor decision. Unless fixed broadband is not available, there's no way to compare costs between mobile and fixed services. Mobile will always be more expensive.

I think it's ok to pay a mobile broadband service in addition to your usual fixed line broadband service - if you use it for work while travelling for example. But using the mobile service as primary mobile broadband is not acceptable practice...

NonprayingMantis

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#241207 1-Aug-2009 14:48

MikeGayner:
NonprayingMantis: IANAL, but for their to be a contract there has to be some consideration.

http://en.wikipedia.org/wiki/Consideration

"Consideration is a concept of legal value in contract law. It is a promised action, or omission of action, that the promisee did not already have a pre-existing duty to abide by. It can take the form of money, physical objects, services, or a forbearance of action. Both parties to a contract must pass consideration to the other party for there to be a valid contract."

If she has had nothing from the contract (no discount, no new hardware etc) then you could find that the contract is invalid.

NB.? Consideration does not usually have to be a fair value, it can be anything you like ($1 for example), but it must be there on both sides.

You know what I'm sick of? Some dickhead on a forum who has done some basic level 1 law paper or similar and thinks they're an expert on contractual law. "Consideration" isn't some code word for a free phone. She gives them money, they give her a phone service. There's a term involved. Have you ever leased a property? Notice how you are committing yourself to a certain period? This occurs for the benefit of both the seller and the purchaser - there is security and comfort in knowing you have a certain deal for a certain period of time. That doesn't mean your landlord has to throw in a free boat or something.

The bottom line is she signed a contract and she committed herself. Presumably if this were the other way around (eg Vodafone trying to weasel out of the contract somehow) then you would be a lot less cavalier in your attitude toward the agreement.

Little harsh no? I said I wasn't a lawyer, and was only offering a suggestion, not claiming as absolute fact.

correct me if I am wrong (anyone else, as MikeGayner is banned) , but since she was already paying the same fee, and vodafone were already providing her with the service, then they are not consideration in the new contract, yes? Consideration cannot be something that you alreayd had a pre-existing duty to provide. My undertsanding is that seeing as that stuff was already in place, the contract is offering her nothing over and above what she alreayd had i.e. no consideration. Is this correct?

Her consideration is that she will keep that plan for the next 24 months (or pay the early termination fee).
Vodafone make no such guarentee as far as I can see (and again, I'm happy to be corrected) - they say they can change the plans and prices at anytime, and disconnect you at any time whether you are on account or not.
http://www.vodafone.co.nz/about/legal-stuff/on-account-terms.pdf

20. Vodafone’s right to end this Agreement
Notwithstanding any other clause in this Agreement, we can disconnect
your connection or terminate particular Services:
(i) if any of our licences to operate our network is ended or
suspended or any interconnection agreement with any other
Network Operator expires or is ended; or
(ii) for any other reason we believe that it is appropriate to do so, and
in either case you will only have to pay any outstanding Charges
incurred up to and including the time of disconnection.

and

23. Notices and Variations of Charges, Terms and Pricing Plans
(a) We may change this Agreement and any free Services at any time.
Changes will be posted on our Website. Please check this regularly for
updates.
(b) We may vary the charges set out in a Pricing Plan at any time. We will
give you at least 10 business days prior notice and where possible 1
month’s notice of these changes. We will notify you of these changes
by posting them on our Website. Please check our Website regularly for
updates. For the avoidance of doubt, we will not notify you of price
decreases or promotional offers which have stated end dates.
(c) If we materially increase a Pricing Plan or materially reduce elements of
a Service you are using or change the terms and conditions of this
Agreement so that it has a material detrimental effect on you we will
give you at least 10 business days prior notice, and where possible one
month’s notice of these changes. We will notify you of any changes by
bill message and/or leaving a message on your voicemail

So what was the consideration they offer in the 24 month contract?

And, savag3, I realise wiki is not ideal (although it is usually pretty good for non-controversial topics like this), but I seriously doubt there is any significant difference between NZ law and UK law in this context. I'm happy to be corrected though, and genuinely interested if there is a difference in this context.

Marmion

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#241211 1-Aug-2009 15:06

I would personally focus on misrepresentation rather than consideration.

I gather the facts are:

a) Sister signed original 2 year contract @ $30/mth (40/mth open term)
b) 2 years pass, re-signs @ $30/mth (40/mth open term)
- Question: Did plan cost go to $40/mth or remain at $30/mth? - If went to $40/mth before re-sign then no misrepresentation. If remained at $30/mth prior to re-sign then saleperson made misrepresentation.
c) wishes to break contract as no longer suitable
- Question: Would VFone be willing to waive break fee in order to retain custom in exchange for higher cost (but better value) plan eg $40/mth for 1GB or whatever it is?

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