contract-law california business fraud
Can other party sneak in new contract terms via termination notice?
<p>My friend's business applied for a credit card processor company's service. When signing up for this service the only document they asked her to sign was <em>Application Form</em>. Also, their sales person verbally promised that she can try their service risk-free for a month (ie she would not have to pay any Early Termination Fees if she would decide to switch back to old credit card processing company).</p>

<p>However, once she decided not to do business with this new company, they tricked her and sent her template of <em>Termination Notice</em> that sneaked in new terms that state that she has to pay $840 in early termination fees (contrary to original agreement that stated that their service has risk-free trial period for a month). Unfortunately, she did not read this Termination Notice template carefully, signed it and sent it back to them. Other people are complaining about the same fraudulent activities from this company on BBB and YP that they try to alter original agreement and include ETFs etc - of course when it is too late already.</p>

<p>Now, this company has already automatically charged her these $840 from her bank account, because they had access to her bank account. <strong>Is there anything she can do to dispute liability to pay this ETF because it was not disclosed at the time she signed up for service?</strong></p>

<p><strong>What would have been the correct way for her to terminate service in such case? What, would happen if this company would reject to accept her Termination Notice that does not mention this $840 ETF?</strong></p>

<p>If there is nothing she can do anymore because "Termination Notice" is already signed by her, <strong>could in theory my friend have tried to secretly sneak in new terms in the termination notice as well? For example, to charge this company PoS terminal storage fees (PoS terminal was theirs)?</strong> I understand that hard part here would be to get this company's signature on termination notice, because termination notice is typically signed only by one party, but what are the chances to sneak in new terms from our side and make new liabilities for this other company?</p>

<p><em>I understand what I ask is morally disgusting. However, I am not sure if it is or isn't legal. If it is illegal, then I think she should get back her $840. If it is legal, then why not screw with this company and try to get back even more money via PoS terminal storage fees?</em> </p>

<p>Variations of contracts must be consented to by all parties.</p>

<p>This means that if the company sent your friend varied terms, it would have included means by which she would have consented - this may be by continuing to use a service.</p>

<p>You cannot unilaterally change the terms of a contract. You could <em>try</em> to charge the company PoS terminal storage fees, but it's highly unlikely to be enforceable if they don't agree to it.</p>

<p>In theory <strong>if they are aware of the change and they accept them in some way then they are bound to the terms just as she would be</strong>, even if they later claimed that they were not aware of them. There is some precedent - in <strong>Russia</strong> - for this with a bank and <a href="http://www.telegraph.co.uk/finance/personalfinance/borrowing/creditcards/10231556/Man-who-created-own-credit-card-sues-bank-for-not-sticking-to-terms.html" rel="noreferrer">it made the news some time ago</a>.</p>

<p>There's plenty of cases in which people who don't read EULAs or loan contracts thoroughly are still forced to honour their obligations to their creditors under them.</p>

<p>From <a href="http://openjurist.org/775/f2d/757/hand-v-dayton-hudson" rel="nofollow">Hand v. Dayton-Hudson</a> case it seems that there has been a precedent in US legal system that undisclosed contract changes made by recipient were reverted and considered as fraudulent:</p>

<blockquote>
  <p>Plaintiff John Hand appeals from the entry of summary judgment by the
  district court in favor of defendant Dayton-Hudson Corporation in a
  diversity action alleging breach of an employment contract and age
  discrimination. <strong>The district court found that Hand had fraudulently
  altered a release which both parties subsequently signed</strong>. The court
  reformed the release to conform to its original meaning. For the
  reasons set forth below, we affirm.</p>
</blockquote>

<p>This case to some extent is similar to still unfolding case in <a href="http://www.telegraph.co.uk/finance/personalfinance/borrowing/creditcards/10231556/Man-who-created-own-credit-card-sues-bank-for-not-sticking-to-terms.html" rel="nofollow">Russia</a></p>
