Subject: Re: Q: Defacing a contract?
From: blackman@dog-play.com
Date: 1997/09/03
Newsgroups: misc.legal

One thing you need to do is to go over the copy you kept (You DID didn't you) and make SURE that you changed ALL the terms to reflect the shortened time. If you didn't that doesn't mean you lose, but it gets a whole lot more complicated. Have someone else read it pretending they are the service provider and see if they can find a reason in the modified contract why they ought to be able to collect. A person who is fresh to the contract may be better able to catch it if you didn't modify everthing you needed to.

Assuming you are quite certain that the terms of the contract as you sent it to them support you:

Write them back. Tell them

"You made me an offer by sending me a contract. I submitted a counter offer by NOT accepting the offer as written but by modifying it to reflect different terms. You did not reject my counter offer. You accepted my money and provided service under the terms of the contract that I signed. If you can provide me with good case law regarding "defacing a contract" or any other basis on which I should be bound by the offer that I rejected please provide me with the specific case law and statutory citations so that I may review your position with my attorney. In the absence of such evidence I will maintain my position that I am bound only by the terms of the offer I sent to you and which you accepted by your performance."

Notice: I DO NOT know what your rights are in this case. This is a "put up or shut up" letter, not a denial of their claim. You are demanding that they provide the legal basis for their claim of a right to an early cancellation fee, if they cannot do so then you are justified in rejecting their claim. If the CAN (and they might) you will at least have a place to start looking at whether or not they are correct. In general the person making a claim has the burden of proving it, although that may vary in some cases.

My personal temptation would be to add:
"I shall, further, view any more attempts to assert a right to an "early cancellation fee" as a claim for money without merit, which if continued, may itself be actionable."

But I don't know the possible consequences of that so I can't recommend it.

Your local law librarian can't tell you the law but may be able to point you to the right codes sections, and "law digests" for you to explore the topic for yourself. Law libraries are typically found in or near the county courthouse. Very often the materials you need can even found in a regular public library.

Diane Blackman
diane@dog-play.com http://www.dog-play.com
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
You must speak to be heard.

Brian Schor  wrote:
: Hello all.  Contract law question.  I was a cellular phone customer for a
: full year with Cell One in Boston here, and they asked me to sign
: another year commitment at the end of my first year.  I said I would think
: about it, and could they send me a contract?

: When I got the contract I whited out everywhere it said "one year" and
: >   put in "four months" and faxed it back.  No one at Cell One ever said
: >   anything, and they continued my service.
: >
: >   Now my four months is up, I'm not happy with my service (I'm switching
: >   to a more reasonably priced competitve carrier).. and I called to
: cancel.
: >
: >   They said I now owe a $150 'early cancellation' fee.
: >
: >   I told them I signed a contract for four months.  They said what I had
: >   done was "defacing a contract" and that I was still bound for a whole
: >   year.

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Contact Diane Blackman at: blackman@sonic.net