should I be subject to an implied contract?

tifrap_2

I'll try and be brief.
For ten years I bought dial-up internet access on a yearly pay in advance arrangement - a non-committal agreement.
2 years ago the company was aquired by Kingston Communications.
1 year ago I decided not to continue the service - so didnt pay the invoice (£140).

I just received an account recovery letter threatening legal action.

On talking to Kcom they insisted that ~ I became bound by their terms, and that my old pay yearly in advance agreement was now an ongoing contract - that obliged me to pay unless I give notice - so they refused to write off the amount, and intend to persue it.
I insisted that they had no contract with me, and asked them to prove that they did. they replied that I had agreed to the contract by paying the previous invoice.

A bit of research has shown me that there is such a thing as 'acceptance by conduct' in contract law - but the terms of the accepted contract must be clearly stated.
I am sure that Kcomm have never sent me any terms and conditions, I have never signed anything (either with them or the aquired company) in fact kcom have hardly ever sent me any paperwork other than invoices.

So should I just accept that what began as an upfront payment agreement, has been stealthily converted into a contract? (in which case be very careful about paying for online services upfront) - or should I fight it?

Has anyone had any similar experience? are Kingston comms a reasonable company? Any laywers got any thoughts on 'acceptance by conduct' and what I may need to prove?

Thanks

Anihilator

I would say that by not calling them you agreed to their contract based on past conduct.

How enforcable it is really is open to interpretation by a court.

Annually they supplied a service and invoice you which you then paid therefore its reasonable to suggest that if you wanted to vary this you need to tell them.

neilmcl

tifrap wrote: »

was aquired by Kingston Communications.
1 year ago I decided not to continue the service - so didnt pay the invoice (£140).

I just received an account recovery letter threatening legal action.

Hardly surprising is it. If you didn't want to continue the service why didn't you do what most people would have and contacted the supplier to cancel your service, rather than simply ignore the invoice.

drsquirrel

You put them in this situation, unfairly.

If you didn't want the service, and didn't pay... why did they wait that long to chase you up? Did you even use the service during that period?

Assuming £140 is for the full year.

If you didn't pay an invoice a year ago, why would they provide the service for the entire year, rather than giving you a few months notice/letter and cutting you off due to non payment........

tifrap_2

Anihilator wrote: »

Annually they supplied a service and invoice you which you then paid therefore its reasonable to suggest that if you wanted to vary this you need to tell them.

Anihilator. I only paid for the service from them for one year, and then didn't renew. (they aquired the previous company, and then changed the terms).

neilmcl.
The situation, in my opinion, is similar to, for instance; subscribing to a magazine or paying for a years access to rootsweb or some other internet resource. It was clear at the outset that if i wanted more, i should pay upfront for it.
How many people would write and cancel a yearly subscription? and how many would be annoyed to find that they were being taken to court for not having renewed one, over a year later?
Most of these, non-contractual services, nowadays keep you tied in by taking a card number and stating that they will debit the following years amount - unless you cancel. I paid for this service on such an arrangement, but in person, by cheque, without signing any agreement.
It would have been different had the understanding been clearly one of ongoing commitment, but it wasn't.

drsquirrel.
I take your point. it hadn't occured to me that it is a bit odd that they didn't chase payment sooner - as for the service - I hadn't used the dialup service for over 3 years (i only kept it for incoming legacy emails that were redirected).
Yes the £140 was for a year.
They don't advertise dial-up internet access services at all anymore, and don't seem to have much knowledge about the subject.

I have spent some time now searching for any terms of service that I may potentially be subject to on their website - and there is none, only a phone line contract (which is their main business after all) - If i am subject to that contract then they have failed to meet its terms themselves by not providing me with a telephone service.

olly300

If they refuse to give you a copy of the contract you have with them, and you cannot find it on their website then there is no way for you to work out if they are acting fairly. So you can easily argue that they are acting unfairly regardless of whether this is a consumer contract or otherwise.

If it's a consumer contract then the terms need to be fair under The Unfair Terms in Consumer Contracts Regulations 1999.

So I would write a letter with a title indicating that you dispute their claims. Making sure you mention:
1. That they have refused giving dates when they have done this, to send you a copy of the terms and conditions of the account
2. The information of their terms and conditions of this service is not on their website
3. Other things like they are not complying with their terms of service
4. Imply they are breaching The Unfair Terms in Consumer Contracts Regulations 1999 plus any other laws you can throw at them by their behaviour if it's a consumer contract.
5. That if they don't stop their threats of legal action, you will have to take legal action yourself due to their harassing behaviour
Send your letter to them by recorded delivery and after 13 weeks put in a dispute to OTELO. http://www.otelo.org.uk/ if they refuse to sort the matter out.

If however they increase their threats before 13 weeks I would send them 2 letters before action - one with a 21 day limit and another with a 7 day limit stating that you are taking them to court for breach of contract. Then submit a small claims case.

Either way the case will cost them more to sort out then the £140.

tifrap_2

Thanks for the constructive reply olly300.
Just the sort of thing that I wanted to hear and is much appreciated.
I was wavering a bit after the fairly unanimous mention of me behaving unfairly, but thanks to you, i have made up my mind to hold out. After all this is a money saving website isn't it?

mountainofdebt

tifrap wrote: »

Thanks for the constructive reply olly300.
Just the sort of thing that I wanted to hear and is much appreciated.
I was wavering a bit after the fairly unanimous mention of me behaving unfairly, but thanks to you, i have made up my mind to hold out. After all this is a money saving website isn't it?

yes but with moneysaving done within the law of course.