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Contract Law question

  • 02-01-2011 2:23am
    #1
    Shield
    Moderators, Society & Culture Moderators, Help & Feedback Category Moderators Posts: 9,808 CMod ✭✭✭✭


    Interesting one:

    If you buy an ongoing service on contract like a gym membership, internet access, tv subscription etc., and they start allowing you, and continue to allow you to use the service for years, is the contract (with all their Terms and Conditions attached) deemed to be in effect even if you haven't returned the contract they sent out to sign and return?

    The point of law for discussion is: Have you signaled agreement to all their Terms and Conditions by using the service by the act of paying (and continuing to pay), or can your act of not sending the signed contract back be interpreted as not agreeing to all the Ts and Cs even though they have allowed you to use the service because you have paid?


Comments

  • #2
    MrPudding
    Registered Users, Registered Users 2 Posts: 9,788 ✭✭✭MrPudding


    psni wrote: »
    Interesting one:

    If you buy an ongoing service on contract like a gym membership, internet access, tv subscription etc., and they start allowing you, and continue to allow you to use the service for years, is the contract (with all their Terms and Conditions attached) deemed to be in effect even if you haven't returned the contract they sent out to sign and return?

    The point of law for discussion is: Have you signaled agreement to all their Terms and Conditions by using the service by the act of paying (and continuing to pay), or can your act of not sending the signed contract back be interpreted as not agreeing to all the Ts and Cs even though they have allowed you to use the service because you have paid?
    You will find there is normally a clause in the contract, or a sign somewhere, informing you that making use of the facilities signifies acceptance of the terms and conditions. f this was the case, I don't think that simply not returning the contract would be considered a sufficient counter offer.

    At its most basic, if you did not have a chance to read the terms and conditions before you entered into the contract then you are likely not bound by them.

    Where a contract has expired, but service continues, that is likely to be a different matter, though I expect it is also covered in the T's & C's. For example, when you mobile phone contract expires your service does not stop but you can cancel at any time. I would expect that you are still obliged to pay for your service. I presume, without looking at it in any detail, that it become a sort of rolling contract which your are deemed to have agreed to.

    MrP


  • #3
    Reloc8
    Closed Accounts Posts: 2,857 ✭✭✭Reloc8


    psni wrote: »
    Interesting one:

    If you buy an ongoing service on contract like a gym membership, internet access, tv subscription etc., and they start allowing you, and continue to allow you to use the service for years, is the contract (with all their Terms and Conditions attached) deemed to be in effect even if you haven't returned the contract they sent out to sign and return?

    The point of law for discussion is: Have you signaled agreement to all their Terms and Conditions by using the service by the act of paying (and continuing to pay), or can your act of not sending the signed contract back be interpreted as not agreeing to all the Ts and Cs even though they have allowed you to use the service because you have paid?

    What you're describing comes under the doctrine of Performance (or Part Performance although this scenario actually sounds to me like full performance).

    Basically a party which proceeds to observe/perform the contract is usually prevented from denying it, especially if they have taken the benefit of the contract, i.e. by using the facilities.

    In a general sense in contract law, a party who does not sign the contract cannot use this as a sole basis to deny the existence of the agreement once the agreement has begun to be performed. In order to fully bind that party it would simply have to be proven that they had accepted the terms of the contract. Having been given a copy of the terms and conditions, and begun to perform same, they couldn't then argue successfully that those terms and conditions did not apply, even if they did not read and/or sign same.

    The specific answer to your point of discussions is therefore 'no'.

    Exceptions would apply to clauses which limit liability and are not adequately 'flagged' or in consumer contracts, clauses which are void for being unfair under the Unfair Terms in Consumer Contracts Regulations - anticipating a query, a clause which says the contract will run for 12 months is not an unfair clause.


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