It’s common to receive a mail from some service that they’re changing the terms and conditions of their service (internet provider, gmail, etc.) These changes are unilateral and can be about anything, from their privacy policy to the money they intend to charge me.
Why can’t I unilaterally send them a mail and say, I am changing the terms of my patronage and will now insert my new policy (pay only xx amount, or demand a mint Chico chip ice cream every Tuesday)?
A valid contract under US common law (which has it’s roots in English common law) requires three things: offer, acceptance, and consideration (which means each side gives up a legal right in exchange for something, i.e. you become bound to pay a monthly fee in exchange for the other side being obligated to provide a service). So when a company sends you a contract with pre-set terms (an offer), you can either sign that pre-drafted contract (acceptance), ignore it (rejection), or change one or more terms and send it back to the drafter to either accept or reject (rejection and counter-offer).
Every time language is changed it rejects the previous offer and creates a new counter offer. You don’t have a “contract” until an offer is accepted with no changes (also known as mutual assent).
As a practical matter, no large company is going to accept a counter-offer for a contract with one consumer. Their entire apparatus is constructed to serve the terms of a form contract. There is no practical way for a company with thousands/millions of customers to honor the unique terms of one customer’s contract.
With that being said, even if a company could theoretically honor the modified contract, they aren’t going to risk it. They would have to have a lawyer or legal employee review it and analyze its costs and benefits to the company. That would cost a lot of money per each modified contract, so the company will simply ignore the changes and move on the the next customer.
That’s the argument that it shouldn’t be an enforceable contract. The company is unilaterally establishing terms with no opportunity to negotiate, which is not a valid contract. Unfortunately it seems to be treated as one in our dystopia
I can’t find it, but I seem to recall back in the day this one absolute legend of a chanced got a contract from his bank. He wrote a new contract, which he carefully designed to be visually similar to the one he received, but which gave him incredibly favourable terms with massive penalty fees on the bank should they try to renege on it. Nobody at the bank noticed the signed contract wasn’t the one they had sent out, leaving them on the hook. And since they had freely agreed to it, a judge ruled it was valid and enforceable.
From another comment here https://detechter.com/man-creates-credit-card-sues-bank-for-not-paying/
IANAL. If a bank signs the copy they receive back from the counterparty, then generally yeah, it would be enforceable. Contract law demands that result, because otherwise there’d be no point to the words on the document. Working in the other party’s favor would be any lack of notice shortly after the bank signs the contract, because the longer the bank takes to notice a problem, the easiest it is to prove that they did not exercise the appropriate care when signing, incurring all consequences as a result. Missing more and more opportunities to recast or renegotiate the contract, that’s a poor position to defend.
That said, the other party must not have made any implied or explicit statements that the bank could have relied upon. Returning the modified contract to the bank in an email with the words “please find the signed contract attached” (my emphasis) could ambiguously imply that the original contract has been unmodified except that it has gained the other party’s signature.
Whereas the words “please find my signed proposal attached” would dispell any and all ambiguity, because it would clearly be a proposed contract by the other party, not the bank’s original proposal. Alternatively, a blank email with just the attachment is no statement at all, implied or explicit.
To be clear, a bank would almost certainly contest the contract, even if they don’t have a leg to stand on. And the usual reason for this – besides litigiousness – is that it’s the only way for the bank’s business insurance to pay out. Or at the very least, an attempt to slightly lower the damages by opening settlement talks.