Unseen change of terms

little_princess

Dear All,

I am asking this question on behalf of my brother-in-law.

He has insurance for his sons mobile phone which he bought 4 months ago. Yesterday his son dropped his mobile phone and broke one of the buttons :eek:

He rang the mobile phone provider with whom he took out the contract who informed him that he was covered by the insurance but that since the policy was taken out, the excess payment had been doubled from £35 to £70 and that they couldn't do anything for him as this change was down to the insurance company.

He has not received any letters to this effect and has no knowledge of any emails.

His question is... Can he be held to terms that he did not sign up to and have been changed without his knowledge?

Many thanks for reading this and for any help we may receive :T

LP

System

little_princess wrote: »

Dear All,

I am asking this question on behalf of my brother-in-law.

He has insurance for his sons mobile phone which he bought 4 months ago. Yesterday his son dropped his mobile phone and broke one of the buttons :eek:

He rang the mobile phone provider with whom he took out the contract who informed him that he was covered by the insurance but that since the policy was taken out, the excess payment had been doubled from £35 to £70 and that they couldn't do anything for him as this change was down to the insurance company.

He has not received any letters to this effect and has no knowledge of any emails.

His question is... Can he be held to terms that he did not sign up to and have been changed without his knowledge?

Many thanks for reading this and for any help we may receive :T

LP

I suppose he could refuse to accept the change in terms but that would just void his insurance and he will end up with nothing!

earthstorm

goater78 wrote: »

I suppose he could refuse to accept the change in terms but that would just void his insurance and he will end up with nothing!

If the phone is a contract phone, then it will be in the terms that they can change them, also if its like monthly web hosting, then by paying the monthly payment you accept any term changes since the last payment was made, but even so in the terms it should say you will be informed of any changes xx days before changes take effect.

little_princess

Thanks everyone, I thought I had read somewhere that companies could not rely on arbitrarily sending out changes to contract terms and assuming that the customer had seen, read and agreed to them, If the change was a major change to the detriment of the consumer...or its that just wishful thinking

unholyangel

earthstorm wrote: »

If the phone is a contract phone, then it will be in the terms that they can change them, also if its like monthly web hosting, then by paying the monthly payment you accept any term changes since the last payment was made, but even so in the terms it should say you will be informed of any changes xx days before changes take effect.

A lot of things can be said in terms and conditions. It doesnt make them legally enforceable.

10.1 A right for one party to alter the terms of the contract after it has been agreed, regardless of the consent of the other party, is under strong suspicion of unfairness. A contract can be considered balanced only if both parties are bound by their obligations as agreed.

10.2 If a term could be used to force the consumer to accept increased costs or penalties, new requirements, or reduced benefits, it is likely to be considered unfair whether or not it is meant to be used in that way. A variation clause can upset the legal balance of the contract even though it was intended solely to facilitate minor adjustments, if its wording means it could be used to impose more substantial changes. This applies to terms giving the supplier the right to make corrections to contracts at its discretion and without liability.

10.3 Such a term is more likely to be found fair if:

(a) it is narrowed in effect, so that it cannot be used to change the balance of advantage under the contract – for example, allowing variations to reflect changes in the law, to meet regulatory requirements or to reflect new industry guidance and codes of practice which are likely to raise standards of consumer protection

(b) it can be exercised only for reasons stated in the contract which are clear and specific enough to ensure the power to vary cannot be used at will to suit the interests of the supplier, or unexpectedly to consumers (see paragraph 11.5)

(c) there is a duty on the supplier to give notice of any variation, and aright for the consumer to cancel before being affected by it, without penalty or otherwise being worse off for having entered the contract.

10.4 A term which merely says that variations will only be 'reasonable' or will only be made 'reasonably', is unlikely to be any fairer than one which
contains no such qualification, unless there can be little doubt in a reasonable consumer's mind as to what sort of variation, broadly speaking, such wording allows, and in what circumstances. Where the criteria of reasonableness are vague, or clearly meant to include the best commercial interests of the business, there will be scope for the supplier to change the bargain unfairly to the detriment of consumers, simply on the basis that he needs to protect his profit margins.

Furthermore.....making a payment does NOT constitute acceptance of a change in terms and conditions.

earthstorm

unholyangel wrote: »

Furthermore.....making a payment does NOT constitute acceptance of a change in terms and conditions.

In the hosting business when you are on a month to month contract it does according to Trading Standards. I was told this when they looked over my TOS. although i forgot certain members on MSE think they know more that Trading Standards.

unholyangel

earthstorm wrote: »

In the hosting business when you are on a month to month contract it does according to Trading Standards. I was told this when they looked over my TOS. although i forgot certain members on MSE think they know more that Trading Standards.

In the hosting business? You mean a business to business contract for your business website that you talk about so much?

Do you really need me to tell you that the Unfair Terms in Consumer Contract Regulations do not apply to b2b transactions?