Agreements Must Be Kept!
At least they should be. In Latin we call it: Pacta Sunt Servanda, meaning: Agreements must be kept. The problem is they are not always respected. This is the case with many of our big service providers in Israel.
Let me remind you of a few lines from a previous article:
The contractual law stipulates that there are three types of contracts and they are all valid with a few exceptions:
- Oral
- Written
- Any other form of contract
Today we will deal with the oral contract
When signing a contract with a cell phone company for example, we are asked to sign a contract but somehow there is very little resemblance between the contracts we are signing and the conditions we are being offered. This is even worse when we are signing a contract with a third party working for these companies.
The main problem is that in court one cannot refute what is written in a contract by an oral contract. Let me give you a simple example: Mr. Levy bought a new phone, including a very generous plan for 200 Shekels a month, including as he was told “everything” with no limitations. But after receiving the second bill, Mr. Levy found out he was paying 250 shekels instead of 200 shekels. Only then was he told that the 200 shekels did not include this or that service and so on.
Mr. Levy signed a contract he could not fully understand, relying on the person selling him the best they have in the market! It will be almost impossible to prove in court that that person “distorted” the facts or “forgot” some important details. What is the remedy in this case? How do we deal with this problem?
Unconscionable
This is when a seller takes advantage of a buyer due to their unequal bargaining positions, perhaps because of a buyer`s recent trauma, physical infirmity, ignorance, inability to read or inability to understand the language. The unfairness must be so severe that it is shocking to the average person. It usually includes the absence of any meaningful choice on the part of the buyer and contract terms so one-sided that they unreasonably favor the seller. As a result, a contract can be terminated if the buyer can prove unconscionable circumstances.
Reasonable Terms & Conditions
We have to be reasonable. If a company is asking one hundred shekels a month for a service and another company is asking 30 shekels for the same service, watch out for the small print or for that forgotten clause such as: “For the first 3 months only”. Do not forget for a moment that the Judge is the reasonable person and he will be sitting on the bench that day. Can you convince him you didn’t know about the “first 3 months only clause”?
This is Not Reasonable
Mr. Cohen, an 87-year-old new immigrant, bought a new phone with a great plan. As he was told, this specific plan was “handmade for him”, as the plan was inexpensive and the phone was very easy to use. The small and important detail was that Mr. Cohen told the seller (the cell phone’s representative) that he did not have a computer, he could not use a phone for more than a simple phone call (talking only) due to his complete lack of understanding of new technology and his very bad vision. He could barely see those small numbers on the dial pad!
After a few months, Mr. Cohen finally got around to checking his account and to his dismay he was being charged double for the phone and the plan. He went to that same nice representative and asked for a refund, believing it was all a mistake. It took Mr. Cohen quite a while to understand he was surfing the web on his phone, even though he did not have internet in his house (or even a computer). The surfing was not included in the plan therefore he was asked to pay for the usage.
Mr. Cohen could not convince anyone that day. “How come Mr. Cohen”, they asked him patronizing, “How come you cannot use the web?” They acted as thought his eye problems were just an excuse not to pay and finally: “Come on Mr. Cohen, who does not have a computer? How do you talk to your family abroad?”
The Judge was a very reasonable man
This was the real reason the cell phone company offered him a “compromise” right after we sued them. He was given a new and simpler phone, the entire amount was returned to him and yes, he even got a free few hundred minutes as compensation.
This was a very easy case. It was more than evident that Mr. Cohen was misguided and the company knew Mr. Cohen would have the full sympathy of the Honorable Judge, so for this reason they offered the compromise even before the case was heard in court.
Clear as Water
Unfortunately only a few cases are as clear as this one. The full burden of evidence is on the plaintiff’s shoulders, making it difficult when the case is unclear or the situation unreasonable.
A word of wisdom
Be reasonable and do not be tempted by “great deals” because great deals may bring “great danger” to you.
Sincerely,
Tzvi Szajnbrum, Attorney at Law