Contracts of Adhesion (Unfair - One Sided Agreements)

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Escape from Cell Phone Purgatory


How to get out of your cell phone contract without paying a termination fee




David Wood
ConsumerAffairs.Com

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SuiJuris.Net

August 30, 2007
• How to Avoid Early Termination Fees
• Site Offers Cell Phone Contract Swapping
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• More about cell phones ...

Let me ask you a question. If you had a choice, which would you rather do -- have a tooth pulled or try to get out of your cell phone contract early without paying a fee?

That’s what I thought. Open wide!

A typical cell phone early termination fee (ETF) can cost $175.00 to $250.00 per line, and that's just from the carrier only. If you signed up through certain dealers -- such as a kiosk in a mall -- it’s possible they have an additional ETF, as high as $400.00 per line.

Bailing out of your contract early is easy, if you want to fork over the cash. However, try to leave without losing your wallet and it's another story.

ConsumerAffairs.com receives many complaints from people like Gary and Christina.

Just like Gary and Christina, many consumers are under the impression that a carrier must let you out of your contract if the service isn’t up to par. However, the contract says otherwise. In fact, a cell phone contract will go to great lengths to stipulate that the service is not guaranteed to work.

But what if you move out of the service area?

Once again, the carrier is not required to let you off without paying the ETF.

Some customer service reps will waive the fee as a courtesy but much depends on which rep answers the phone. Call your carrier numerous times if needed and be prepared to back up everything you say.

The Internet is filled with ways to avoid paying the early termination fee, but the majority of ideas are at best unethical and at worst illegal.


Nevertheless, there are a few ways to get out without losing a small fortune, and do it in an ethical manner.

The “materially adverse change” clause
It is an understatement to say that your contract is tipped in favor of your carrier; it's not tipped -- it's turned on its head in favor of the carrier. However, the news is not all bad: all major carriers have what is called the “material adverse change” clause.

That clause provides that, in effect, if your carrier adds a new charge to your plan, they have changed the terms of your contract. They must give you notice and then you’ll have at least 14 days to bail out without paying an ETF. If you continue to use your service beyond the “get out” date specified by your carrier, that is an indication (called negative option) that you accept their changes.

As more people have become aware of this clause, carriers have grown stricter in what they consider a “materially adverse change.” You might have to ask for a supervisor and read to them the exact wording of your notice. Make sure to use the words “materially adverse.”

In any event, this clause alone gives you a good reason to read every notice sent to you -- promptly. If you miss the notice and the 14 days passes, you're out of luck.

Transfer the contract to someone else
You can legally skip-out on the termination fee by transferring your contract to someone else, as long as you follow the rules set forth by your carrier.

All major carriers allow a transfer of contract, but the carriers differ in their protocol for transfer.

AT&T has a similar policy. Even if the account holder has only a month remaining, the receiving account holder must sign an 11-month contract from the date the transfer takes place.

Transferring your account can be a great way to avoid the ETF and, thanks to the Internet, you’re not stuck with finding someone local to take over the contract.

Websites have popped up for the sole purpose of helping to find interested parties. Both CellSwapper.com and CellTradeUSA.com can help consumers who want to get out of their contract, as well as consumers who are looking to take over an account.

The cellular carrier will handle much of the transfer and it’s important to follow their instructions to the letter. Furthermore, before turning your phone over to someone else, ask your carrier how to wipe out your personal data on the phone.

You can also download instructions on how to erase phone data by visiting WirelessRecycling.com.
http://www.wirelessrecycling.com/hom...er/default.asp

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Contracts: View from Europe

Contracts are essential to business, necessary at all levels from concept to end product or service and throughout the supply chain. The basic rule applied by the courts in determining whether contracts are enforceable is that the legal elements of offer, acceptance and consideration should exist.

Unfortunately for businesses, contract law has been interpreted, honed and rewritten by the courts for 400 years and, increasingly, by statute and European law. What the average business is now left with is a myriad of confusing and contradictory rules determining how and to what extent contracts should be enforceable. Here are a few pointers to help you navigate the rules.

The Basics

There are some concepts which are central to all types of contract from employment contracts to buying milk without which a contract cannot exist. Put in simple (!) legal terms these are offer, acceptance and consideration. Although usually fairly straightforward in the business context there are a number of issues which you need to be able to spot:

Subject to certain exceptions, contracts can be verbal as well as written. While it is highly advisable to set out the contract in writing, a verbal contract is equally binding and equally enforceable. The main problem with verbal contracts is proving what the terms are from an evidential point of view.

The offer needs to be clear and contain sufficient terms that, if accepted, enable the courts to identify what the contract is for. The absence of key terms (such as price) can be fatal to a contract.

Acceptance must be absolute. In the absence of an agreement including all key terms, there can be no binding contract:

Rejection of some terms is likely to be a counter-offer and therefore no binding contract would be in place.

If the contract was partially performed it would be difficult for a court to establish what the terms of the contract were.

The ‘battle of the forms’ - offers are made on the standard terms of one party and accepted on the standard terms of the other.

Consideration: This means that there has to be something of value passing both ways between the parties. The courts will not assess the adequacy of the consideration and there is no requirement for the value of the consideration passing each way to be equal but there must be consideration for a contact to be enforceable (unless it is made in a deed).

Special circumstances such as fraud, illegal contracts and contracts obtained by means of duress or if one of the parties does not have capacity – because of their age or health - will render contracts void and unenforceable.

Contracts can be affected by mistake and misrepresentation so that if a party enters into a contract under the influence of a mistake of fact or law or due to a misrepresentation the contract may subsequently be rescinded (annulled) even if the contract would otherwise be enforceable.

Contracts are an agreement. They can be changed or replaced at any time by a new agreement between the same parties. In some circumstances, the law implies changes based on uncontested conduct of the parties over a period of time.

Incorporation of terms. There are a number of ways in which terms can be incorporated into contracts however it is not possible to incorporate additional terms after the offer has been accepted without the agreement of the other party. This is a common mistake where companies include printed terms and conditions on their invoices.

Commercial Contracts

The general approach of the English courts in commercial contracts is that businesses are on a more or less equal footing for negotiations and should therefore bear the consequences of the contracts that they sign without too much assistance or interference from the court. The doctrine of freedom of contract is the guiding principle. The key areas in which the law does not merely interpret the agreed wording include:

Jurisdiction - express clauses are increasing important in today’s global economy. In the absence of a jurisdiction clause, parties may become embroiled in expensive litigation determining which court gets to decide the dispute!

Competition issues. There are laws restricting anti-competitive agreements on both a UK and European level.
UCTA – This is the Unfair Contract Terms Act 1977.
Its primary accepted effect is to prevent contracts excluding liability for death and personal injury. There is a list of terms which are deemed unfair under UCTA however the courts have traditionally interpreted UCTA restrictively.

Specific Contracts

There are specific types of contract which can present specific problems. Areas which have such specific regulation include contracts of employment (which, as every employer knows, qualify for such a degree of specific protection that they constitute a whole area of law in themselves) consumer credit act contracts, e-commerce contracts commercial agency contracts and contracts relating to interests in land.

Dealing With Contracts

It is an undeniable fact of life that businesses have to deal with contracts. It is also necessary for businesses to try, as far as possible, to trade on their own terms and conditions which they have drafted and which they understand. Businesses should not assume that their standard terms and conditions will be appropriate for all contracts for the indefinite future. They should be reviewed and updated at regular intervals, particularly when new consumer legislation comes into force.

If notice of a dispute comes your way, you should seek specific legal advice prior to taking any steps. Beginning to construct your own defence may well be counter productive.

Torts and Contracts

It should be remembered that contracts are not legal vacuums. Very often contracts give rise to specific duties between the parties which are impacted by other areas of law.

A contract founds a duty of care between the parties which may give rise to a claim in negligence if the goods or services provided are not up to accepted standards – even where there is no breach of contract as such. There is also a duty on third parties not to interfere with the lawful performance of a contract which they have knowledge of and provision for third parties to rely on contractual terms which confer rights on them notwithstanding that they are not parties to the contract themselves.

And Finally…

The Government are proposing to redraft the statute book as it relates to contracts to consolidate UCTA and the Unfair Terms in Consumer Contract Regulations 1999. It is not possible for the application of the Regulations to be limited without European intervention as these are based on European Law. It is highly likely that the protection enjoyed by consumers will continue and the protection enjoyed by businesses will be extended at least in part to match.



Please note that this area of the law is a complex subject and you should not take or refrain from taking any step without full legal advice on your particular circumstances. The content of this article is of a general nature and no liability is accepted in connection with it or if any reliance is placed on it.

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So well analyzed and such well illustrated
example of one sided deal that it needs to be
reprinted whole.

Is the "United States" a Christian "nation?"
Written by Marc Stevens
Tuesday, 21 November 2006
A popular myth is the "United States" is a "Christian nation" or a "nation" founded on Judeo-Christian ethics. This is actually two separate myths: 1) there is a "nation" and 2) it’s founded on Judeo-Christian ethics. The first myth, that there is a "nation," is proven to be a myth by Judeo-Christian ethics themselves. As I will show, a "nation," as we know it, cannot be founded on Judeo-Christian ethics. This is based a simple truth: no service or product should be provided at the barrel of a gun.

To unravel these myths, we must know what a "nation" such as the so-called "United States" is, or is supposed to be. As the name suggests, the "United States" is more than one "state" joined together. What is a "state" though? We can quickly dispel the political nonsense a "state" is a geographic location such as "New York." If not, then politicians should explain where the "State of New York" was on July 3rd, 1776.

A "state" is defined as "A body politic…occupying a definite territory, and politically organized under one government." Ballentine’s Law Dictionary, page 1210. The "United States" is "A body politic and corporate…" Ballentine’s Law Dictionary, page 1318. A "body politic" is "formed by a voluntary association of individuals: it is a social compact…" Preamble, Massachusetts Constitution and Munn v. Illinois, 94 US 113. "Government" is alleged to be men and women providing the service of protecting "Life, liberty, and the Pursuit of Happiness" to those men and women who "Consent" to such service, Declaration of Independence, July 4th, 1776. In reality though, "government" is one man controlling another man without the latter’s consent ostensibly for the latter’s own "good."

Knowing this, let’s look at the facts. The "states" and the "United States" were allegedly created by pieces of paper and ink called "constitutions." Being nothing more than paper and ink, "constitutions" are only obligatory on men and women as contracts, agreements or compacts. After all, a "body politic" is supposed to be a "voluntary association." I recommend reading Lysander Spooner’s No Treason: The Constitution of No Authority. As stated therein, the "constitution" is unsigned and as such created nothing. Myth number one is dispelled on that alone (there are other reasons not included herein): there are no "states" and no "United States." In other words, there is no "nation."

Let’s look at just a few common Judeo-Christian ethics and compare them with the real-life application of those four pieces of paper and ink called the "constitution." The question here is this:

Is the service of protecting "Life, Liberty and the Pursuit of Happiness" provided in a manner consistent with Judeo-Christian ethics?

There are "Thou shalt not kill…thou shalt not steal. Thou shalt not bear false witness against thy neighbor." Exodus 20:13, 15-16. And "This is my commandment, That ye love one another, as I have loved you." John 15:12.

Are you free to accept and support the "constitution" (four pieces of paper and ink) or not? Free means there are no strings or conditions attached, such as being killed, robbed and lied to if you don’t accept. Do you have a choice to not accept the wonderful "protection" (remember 9/11?) and other pretended "services" offered by the "constitution?" If so, are you obligated to pay for such services i.e., your "fair share of taxes?" Can you decline paying "taxes" without being killed, robbed or lied to by men and women claiming to be a "state?"

Let me first dispel the claim you can "just move to another country." Such emotional claim is ridiculous because the "United States" is not a geographic location but instead ostensibly a "voluntary association of individuals." It also supports the fact the "constitution" is not offered freely.

The "constitution" isn’t offered freely on a take-it-or-leave it basis like contracts or agreements. Remember, if not a contract, the "constitution" binds no one and creates nothing but is just four really old pieces of paper and ink. Those "services" are provided and paid for on a compulsory basis; your "Consent" has nothing to do with it.

So, to answer the question, NO; the service of protecting "Life, Liberty and the Pursuit of Happiness" is NOT provided in a manner consistent with the above Judeo-Christian ethics:

"Woe to him that buildeth a town with blood, and stablisheth a city by iniquity!" Habakkuk 2:12.

The idea there’s a "benefit" to people because a group of men and women provide their "services" on a compulsory basis and this so-called "benefit" then somehow "obligates" people to pay "taxes" is preposterous. That’s how the mob does business.

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The "constitution" is offered on a compulsory or violent basis. This contradicts "state constitutions" and the Declaration of Independence that state it’s "voluntary" and by "Consent." This is inconsistent with Exodus 20:15 and John 15:12. What if you refuse to "pay your fair share?" Refuse to "pay your fair share" and you provide these valiant protectors of "Life, Liberty and the Pursuit of Happiness" with an awesome opportunity to contradict Exodus 20:13.

If you doubt application of the "constitution" contradicts Exodus 20:13 and John 15:12, then go back into the "history" books and refresh your memory about the "civil war." Read about the slaughter of men, women and children because they decided to leave the pretended "voluntary association of individuals." So much for the asinine "if you don’t like this country then leave." If you still doubt this, read article I § 2 of the Nevada "constitution." For those who are not faint of heart, grow marijuana on land you are convinced you own. When the men with machine guns show up, boldly tell them you have no agreement or "social compact" with them and they should get off your property immediately. When you say it make sure your hands are empty and where the agriculture police can see them.

Even if we assume there’s a "nation," it was not based on Judeo-Christian ethics because those so-called "services" are paid for on a violent basis. The taking of property by force or threats of force is called stealing. The act of stealing and "taxation" are virtually identical. You don’t have to take my word for it either: "tax. A forced burden…A tax is not regarded as a debt in the ordinary sense of the term, for the reason that a tax does not depend upon the consent of the taxpayer…" Ballentine’s Law Dictionary, page 1255-56. Real customers, voluntarily accepting real services, incur debts.

You don’t have to be a rocket scientist to know and understand "taxes" are based on violence. People pay to avoid the violence. A clue to the quality of the "services" provided by the local "state" is the fact that payment is compulsory. What kind of people provide their "services" at the barrel of a gun? Why would a "valuable service" everybody allegedly wants have to be provided on a compulsory basis?

Oh yeah, what about the part in the Bible about Caesar? "Render therefore unto Caesar the things which are Caesar’s…" Matthew 22:21. This is an absurd attempt to justify the violent taking of property i.e., robbery. Caesar and his henchmen conquered the Jews; he never claimed to be protecting them with their consent as their servant. Do the people who make this claim believe there was a "social compact" between Caesar and the Jews?

And for those people reading this who need to divert attention by making claims about being "free" in this "country," let me point out just how "free" we are; that is just another myth like the one there is a "country."

You are not "free" to post anything on the internet unless you get permission first. Don’t believe me? OK, don’t pay the "tax" your ISP collects for the "privilege" of doing business. If you have a dial-up connection you better make sure all those "communication taxes" are paid first.

You’re free to be in any profession you want? Nonsense; better go to those "state" approved "schools" first. Make sure you get permission to work by getting a so-called "license." Oh, your chosen profession isn’t "required" to have a "license" just yet? Make sure you fill in your "tax forms" before you start and don’t forget to report every single penny. Forget ten little pennies and you are suddenly a felon and your home "seized" to pay for your "trial."

Free to marry the person of your choice? Think again, you need a so-called "license." Free to live with that significant other? Sorry, that’s a crime also. Think you can freely engage in consensual sexual relations with another adult in the privacy of that home you think you own? Think again.

Believe you’re "free" to walk down the street? Too bad, better have a "state" issued ID card or you’ll be awarded six months in a "state" jail if your friendly neighborhood "cop" decides it’s your lucky day to be "protected."

Freedom to say "No" to a service or product you don’t want to have? Yeah right, just say no to the IRS, DEA or the ATF? Sorry, I want my head to stay on top of my neck.

And if you think you have property rights you are sadly mistaken in the eyes of those men and women pretending to be a "state." To these pretended "servants" individual men and women own NOTHING:

"The ultimate ownership of all property is in the State; individual so-called "ownership" is only by virtue of Government, i.e., law, amounting to mere user; and that use must be in accordance with law and subordinate to the necessities of the State." Senate Resolution #62, from April 1933.

I think the point is made.

There is no "nation." To be based on Judeo-Christian ethics, the "nation" would have to be a "voluntary association." The service of protecting "Life, Liberty and the Pursuit of Happiness" would have to be provided on a purely voluntary basis and that means it’s also paid for just like every other service – voluntarily.

Because what is supposed to be a "nation" today was, and is, based on violence, there is no "nation" because "nations" and "states" are "voluntary." Go ahead and challenge this, keep in mind the founding "constitutions" would then contradict Exodus 20:13 i.e., a "body politic" is "formed by a voluntary association of individuals: it is a social compact…" Preamble, Massachusetts Constitution and Munn v. Illinois, 94 US 113.

This presents statists with a real problem: if "nations" are NOT voluntary then that itself contradicts Judeo-Christian ethics. It proves there is no "voluntary association" but a violent one. If violent, then there is hardly freedom and liberty let alone being founded on Judeo-Christian ethics.

There is no "nation" or pretended "state." Just a group of men and women doing business at the barrel of a gun. As Ernest Hancock says, "There are only two types of people; those who want to be left alone and those who won’t leave them alone."

Wake up America: There is no "nation" and there never was. Stop supporting unproductive anti-social individuals who won’t leave you alone.

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In Black's Law Dictionary it is defined as "legal fraud." Sound like a contradiction? Not at all.