Thursday, September 29, 2011

Don't break the law, Just make your own instead!

Mine Host is caught up in litigation with his landlord, a merchant bank.
"McBank" is the uncrackable code name that shall be used for this bank.

The case swings on a (very thick) contract. The contract is so thick it is stapled & bound in what looks for all the world like heavy duty sticking plaster.

Specifically the case swings on a few clauses (as it always does).
The pages upon which these clauses are printed are not endorsed with the Mine Host's signature or initials.

This is because a sheaf of about 20 pages has been added to the contract, after it was signed.

All pages show the wear & tear of having been unbound, unstapled then restapled & rebound. Except of course the inserted pages, which not only are pristine, they are a slightly different colour.

Every original page in the contract is endorsed with Mine Host's signature or initials. The newly inserted pages are not.

It is clauses found amongst these newly inserted pages that will hang Mine Host.

And hang him they do. McBank produces a fax they purportedly sent announcing that they will be inserting after the fact new clauses into the contract.

The existence of the "fax" and the altered contract were unknown to Mine Host until they were provided as part of Discovery. Until that moment, he had been unaware of their existence.

Mine Host's lawyer ruefully advised that the "fax" meant that the (effectively entirely new) contract was valid, and there was no choice but to roll over.

If Mine Host is ever in the big city with a skinful of rum, God Help any person in his proximity who declares they are an executive of McBank.


JeffS said...

Why even bother having laws?

Oh, wait. Then we wouldn't need lawyers. Can't have that.

richard mcenroe said...

You can alter an executed contract in Australia simply by adding pages after the fact and notifying the other party without requiring consent?

I think my boss just emigrated.

Sackerson said...

Get a tech expert to check their evidence of exactly what was allegedly faxed, and exactly when.

Then alert the jails to keep space for a few extra bods.

Boy on a bike said...

I did some work for a big financial institution a while back.

They had programmed all their faxes so that after each fax was sent, the fax spat out a confirmation page that included a scaled down version of exactly what was sent. That confirmation sheet also included the number that was dialed, plus time and date etc. They were all filed.

They were very serious about recording exactly what was sent, and to whom, and when. They also ran off a daily report from every fax showing every fax transmission, and they filed that too.

If their "fax" doesn't include all that, and they don't have a daily report from the fax on file showing your number, I'd fight them. This big financial institution had clearly lost some expensive legal cases in the past because they were unable to conclusively prove that they had sent a fax to the other party at a certain time.

Mine Host said...

Richard McEnroe: That is how it worked in practice. Naturally the theory is somewhat different. I particularly loved the bit where they did not provide the other party (the lesee) a copy of the new contract.

Sackerson: So many years have passed that I don't recall just how they purported to have "notified" me of the new contract. It may have been a letter, or fax.
Come to think of it, it may actually have been an internal memo, where an executive sent memos to another, notifying that they had obtained my agreement to the inserts. (yeah right - I'd readily agree to inserting pages that just about hog tie me, when I've already got a signed contract!)

JeffS has put the finger right on it!

Paco said...

If you have a loan from your bank, perhaps you could fax them a notice changing your contract interest rate to zero (two should be able to play this game!)

Anonymous said...

A fax is indeed a legal document, should they validate that they have actually sent it.

No copy of the 'receipt OK' report? No day's fax reports sent? No evidence they actually changed the contract and informed you.

What does the contract itself say about changes to it?

Mk 50
Formerly MarkL of Canberra

Mine Host said...

Gosh fellers, don't test me too much on this. It WAS 15 years ago. I am flat to remember the key details, never mind go over the minute intricate parts.