contract-law litigation
Can a party argue they did not know a contract was changed before signing it?
<p>This is a follow up to the question <a href="https://law.stackexchange.com/questions/17476/can-i-cross-out-parts-of-a-contract-before-signing-it">Can I cross out parts of a contract before signing it?</a></p>

<p>If a contract is given to someone and they modify it before signing, and the other party doesn't notice the modification until much latter (after both parties had full-filled/been full-filling their contractual obligations) would the part that had been modified be enforceable? </p>

<p>For example, if a manager emailed an prospective employee a contract containing the pay rate of $20/hr, if the prospective employee crossed out $20/hr and replaced it with $25/hr, then went to work and gave the manager the contract which he failed to carefully read, continued working for a few months, would the employee be entitled to $20/hr?</p>

<p>Since some contracts don't required a signature, what would count as the manager accepting the offer? I guess if it could some how be proven that the manager new the employee expected $25/hr and allowed him to continue work?</p>

<blockquote>
  <p>if a manager emailed an prospective employee a contract containing the
  pay rate of $20/hr, if the prospective employee crossed out $20/hr and
  replaced it with $25/hr, then went to work and gave the manager the
  contract which he failed to carefully read, continued working for a
  few months, would the employee be entitled to $20/hr?</p>
</blockquote>

<p>A party ought to timely alert or notify the other counterparty about any <a href="https://www.youtube.com/watch?v=oxM6NVTNUIs&amp;t=2203s" rel="noreferrer">disagreements</a> or proposed changes. This is especially recommendable when evidence suggests that the counterparty's expectation that the party only would sign the contract was reasonable.</p>

<p>In the example you outline, the employee's unilateral alteration of the compensation/rate in the contract seems unlikely to favor the employee's position. That is because typically employer and employee negotiate compensation <em>prior to</em> formalizing their agreement. In that case, the employee would need stronger evidence with which to overcome the employer's credible argument that he did not knowingly accept the altered rate.</p>

<p>Modifying a contract makes it a counter-offer. An offer or counter offer is only available for acceptance, creating a contract, if it is <strong>communicated</strong> to the other party.</p>

<p>Whether it was communicated or not will depend on the facts of the particular case. </p>

<p>Factors that will matter include:</p>

<ul>
<li>If industry usage or past dealings between the parties are that such changes are common, or rare. </li>
<li>How prominent the changes are e.g. large writing in red ink is more likely to have been communicated than small writing in pencil. </li>
<li>If the amendments are initialled by both parties. </li>
<li>If there is a covering note or email drawing attention to the changes. </li>
<li>Whether the parties are ‘businesspeople’ - the law expects people who contract commercially to look out for their own interests.</li>
</ul>

<p>It is possible to argue this and I have one one case in my career in this fact pattern (involving an unauthorized change to a key provision in a final draft of a big dollar, complex business transaction with a contract document that was almost a hundred pages long and had been reviewed by counsel, and when, a few minutes after the previous draft was reviewed it was changed in this respect despite the fact that everyone at the conference table had been told that only a typo and some formatting errors were changed). </p>

<p>But, it is very difficult to prevail on a claim like this because as a general rule, signing something constitutes a representation that you have done everything you need to in order to make yourself comfortable that you know what it says.</p>

<p>Most versions of this kind of activity are called "fraud in the factum", the classic example of which would be giving someone a piece of paper with only the signature line showing and saying that it is a receipt when really it is a promissory note or a deed transferring real estate.</p>
