What constitutes a contract.

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3puttssuck

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Topic # 240510 11-Sep-2018 15:35

My ISP contract recently expired. I called up seeking a better deal. The offered me a decent deal if I signed up for 12 months. I said ok. Buy I never received anything from them to sign or any T & C’s.
If I now want to move after a few months, can I? They don’t have y signature on any document that constitutes a contract. Where do I stand?
TIA.

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Reply # 2087618 11-Sep-2018 15:36

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Bet they have a recording of the call.

Coil

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Reply # 2087620 11-Sep-2018 15:37

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Its a grey area I feel, I used to give people a free modem for a 6 or 12 month contract, free house moves or discounts.
But I never knew if they were legally bound or not.
What is stopping me from committing low level identify theft and signing this "contract" on your behalf then buggering you over.

Following as interested.

SpartanVXL

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Reply # 2087639 11-Sep-2018 15:53

Coil:
Its a grey area I feel, I used to give people a free modem for a 6 or 12 month contract, free house moves or discounts.
But I never knew if they were legally bound or not.
What is stopping me from committing low level identify theft and signing this "contract" on your behalf then buggering you over.

Following as interested.

I'm fairly certain a fella got screwed over like this. He got his info scraped from somewhere and got signed up to a bunch of services. When 'he' failed to pay a bunch of debt collectors showed up and his credit was ruined by the time he realised and reacted.

It was in the news, I think related to a power company and how his info got leaked. He had to spend a fair bit of time and effort to get it solved.

BlueShift

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Reply # 2087640 11-Sep-2018 15:54

RunningMan:

Bet they have a recording of the call.

If they have used a recording of the call as authorisation, then the wording during the call should have a) mentioned that it was being recorded and b) had the OP clearly state that they understand the T&Cs and that they accept the contract. Otherwise, I'd expect it to be hard to enforce.

Coil

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Reply # 2087644 11-Sep-2018 16:03

BlueShift:

RunningMan:

Bet they have a recording of the call.

If they have used a recording of the call as authorisation, then the wording during the call should have a) mentioned that it was being recorded and b) had the OP clearly state that they understand the T&Cs and that they accept the contract. Otherwise, I'd expect it to be hard to enforce.

Very valid point there, I always hear a massive disclaimer from a bank when I "sign" something over the phone. They also advise that they are obliged to provide their contract in writing via email too so you are sure with what you are signing up to and also offer a recourse if you did not want the services.

Might have a read through VF and sparks actual contract you sign (Read online and tick box) when you receive services. Maybe there is a clause that says they can enter into verbal contracts over the phone?

Linux

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Reply # 2087652 11-Sep-2018 16:19

Had customers in Vodafone dispute agreeing to contract terms and they were sent recordings of the phone conversation

John

Ex JohnR VodafoneNZ 17 years 4 days

sen8or

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Reply # 2087662 11-Sep-2018 16:32

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Valid Contract- Offer, Acceptance and Consideration

The ISP made an offer of a deal, for which you have presumably accepted, the consideration being a fixed rate for a term on your ISP charges.

As to whether or not they need to have specifically advised you they may be recording the call, grey area I would have thought. In NZ law, I'm pretty certain that only one party to a conversation needs to be aware of the fact that the conversation is being recorded, in this case, the staff at the ISP were (most likely) aware that all calls are recorded and so have covered off the requirement. Ofcourse, thats not to say that best practice is to announce up front and be abundantly clear about the fact that you are being recorded and that your verbal acceptance of the offer constitutes a contractual obligation, but whether or not it negates the validity of the contract, who knows.

As its "a few months" into your new contract, I assume you are making the payments on whatever the terms of the arrangement are, that would make it fairly difficult to deny the existence of the contract. Push comes to shove, would you deny having entered the contract?

My2c worth

stinger

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Reply # 2087663 11-Sep-2018 16:35

BlueShift:

If they have used a recording of the call as authorisation, then the wording during the call should have a) mentioned that it was being recorded and b) had the OP clearly state that they understand the T&Cs and that they accept the contract. Otherwise, I'd expect it to be hard to enforce.

New Zealand law does not require one party to inform the other party if the call is being recorded. Although most companies do mention that the call will be recorded as you go through their IVR. As for the topic, I imagine the ISP in question has a recording of the call. I know my old ISP did (which was to confirm that I was exempt from an early termination fee, so in my favour)

Coil

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Reply # 2087681 11-Sep-2018 17:13

sen8or:

Valid Contract- Offer, Acceptance and Consideration

The ISP made an offer of a deal, for which you have presumably accepted, the consideration being a fixed rate for a term on your ISP charges.

As to whether or not they need to have specifically advised you they may be recording the call, grey area I would have thought. In NZ law, I'm pretty certain that only one party to a conversation needs to be aware of the fact that the conversation is being recorded, in this case, the staff at the ISP were (most likely) aware that all calls are recorded and so have covered off the requirement. Ofcourse, thats not to say that best practice is to announce up front and be abundantly clear about the fact that you are being recorded and that your verbal acceptance of the offer constitutes a contractual obligation, but whether or not it negates the validity of the contract, who knows.

As its "a few months" into your new contract, I assume you are making the payments on whatever the terms of the arrangement are, that would make it fairly difficult to deny the existence of the contract. Push comes to shove, would you deny having entered the contract?

My2c worth

I am yet to call an IVR that does not say we record all our calls.

SirHumphreyAppleby

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Reply # 2087695 11-Sep-2018 17:28

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3puttssuck: My ISP contract recently expired. I called up seeking a better deal. The offered me a decent deal if I signed up for 12 months. I said ok. Buy I never received anything from them to sign or any T & C’s.
If I now want to move after a few months, can I? They don’t have y signature on any document that constitutes a contract. Where do I stand?
TIA.

It may not be enforceable if for example someone else made changes to your account without your knowledge or the conditions weren't clearly explained to you. Verbal contracts are always tricky when there is a dispute over what was being agreed to.

By your own admission, you understood what you were agreeing to, and agreed to it. The contract is therefore enforceable. What you are really asking here is if you can get out of it with a clear conscience. No, you can't.

Handle9

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Reply # 2087696 11-Sep-2018 17:35

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I agree. You do have a contract - they offered, you accepted and you exchanged consideration (you got the service, they got your money).

Whether it can be proven to be a contract it still is a contract. IMO if you are trying to weasel out on whether it can be demonstrated it isn't a great look for you.

driller2000

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Reply # 2087705 11-Sep-2018 18:05

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As others have said - Offer, Acceptance an Consideration.

All of which would exist in your case.

Note that a signed contract (while a good idea for clarity for all parties) - is not essential - especially if your actions can be taken as evidence of acceptance ie. by using the service provided.

3puttssuck

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Reply # 2087706 11-Sep-2018 18:09

Thanks for all the feedback. The part about moving after a few months was hi pathetically speaking. I’m very happy with what I’m getting cost & service wise. The only thing I’m sort of considering is a change up in speed. Which may mean breaking current contract.

IcI

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Reply # 2087724 11-Sep-2018 19:03

3puttssuck: Thanks for all the feedback. The part about moving after a few months was hi pathetically speaking. I’m very happy with what I’m getting cost & service wise. The only thing I’m sort of considering is a change up in speed. Which may mean breaking current contract.

Hypothetically speaking, your ISP most likely is willing to do the upgrade at no charge because ...

It's not a downgrade, so they don't get less money than the original contract
They most likely will get more money from you because of the upgrade

Two ISP I've previously dealt with operated with the two points in mind. I've never had an issue upgrading my service. I think once I had to resign for another 12 month term, the other time there was no mention of starting the fixed term again. ymmv

Aredwood

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Reply # 2087798 11-Sep-2018 20:36

Short answer, only contracts involving the sale of land, and a few other special situations. Have to be in writing. And even then, my understanding is that only land contracts are completely unenforceable when verbal only.

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