contract-law terms-of-service adhesion-contracts
Can I amend boilerplate contracts by mail?
<p>I am party to a number of contracts (website terms of service, for example), where a service operator writes the contract, and I agree to the contract by using the service. If the other party wants to amend the contract, they make available to me a new version of the contract, and the new contract is binding when I next use their services.</p>

<p>Intuitively, two should be able to play at this game, no? I can write up my own contract, or an amendment to the existing contract, and give <em>them</em> reasonable notice, and it should become binding on them if they continue to provide services to me when I request them. Under this theory, it's their responsibility to read and understand my contract, and refrain from doing business with me if my terms are not to their liking.</p>

<p>Is this likely to hold up in court? Or, better yet, is it likely to convince the other party to comply with my contract? Or is this sort of agreement-by-performance only binding in certain contexts, or for certain types of services? (For example, is the situation different between a web site that I browse and a service I subscribe to that sends me something in the mail every month in exchange for money?)</p>

<p>If in theory a contract can be amended by giving notice of terms and waiting for the other party to perform, what kind of notice is reasonable to give a large entity like a corporation? Presumably shooting off an e-mail to their automated support system would be insufficient.</p>

<h2>Offer and Acceptance</h2>

<p>For a contract to be a contract there must be an intention on both parties to create legal relations - this is usually considered in terms of an offer and acceptance.</p>

<p>When Website Co makes an offer to the world, you accept it by clicking the ToS acknowledgement and using the service. This is explicit acceptance of the offer.</p>

<p>The ToS contain provisions that <em>Website Co</em> may amended or replace the ToS by giving you notice, when this happens the contract is still in force as the contract contemplattes its own variation: it doesn't need to be varied by another contract. They do allow you to opt out of the contract by no longer using the service but they are not obliged to do so.</p>

<p>The ToS do not contain provisions allowing <em>you</em> to modify them. Therefore when you write to them you are making an offer to vary the contract. They can accept it explicitly or by conduct. They won't accept it explicitly. They aren't engaging in any conduct that is not already subject to the existing contract so they aren't accepting it by conduct.</p>
