Man who created own credit card sues bank for not sticking to terms (2013)
telegraph.co.uk
telegraph.co.uk
The variations Arganov proposed in his counter-offer were pretty extreme: he made significant changes to the material terms. He also didn't appear to do anything to bring Tinkov's attention to these variations and made the counter-offer look very similar to the initial offer (i.e: it looked almost identical). I don't see any mention that he highlighted the variations, or included a note bringing Tinkov's attention to them, or asked Tinkov to initial beside them. At this point, I would say that Tinkov didn't consent to the variation and had assumed that Arganov had accepted their original offer.
BUT, since they apparently gave him the unlimited line of credit he had included in his counter-offer, it seems pretty conclusive that by their conduct they had in fact accepted Arganov's counter-offer.
[https://en.wikipedia.org/wiki/Butler_Machine_Tool_Co_Ltd_v_E...]
It is not the receiving party's responsibility to determine if something they receive is another party's form letter, or other spam-like.
It seems like you are requiring some out-of-band signalling? What should the specs be for that other signalling mechanism?
My guess is that he filled out the application forms, set the terms of the contract how he desired them, left a note on top of it all to the effect of, "BTW, I changed the terms, lol. You should probably read them.", stuffed it in an envelope and mailed it to the bank. A bank clerk probably received the envelope, looked to make sure the application form was filled out and the contract signed, then marked in the bank's database that the requisite documents had been received.
From the article it's not entirely clear to me what form his modifications took:
> [He] scanned it into his computer, altered the terms and sent it back to Tinkoff Credit Systems.
By this do they mean he did something like "photoshop" the scanned contract, producing a result that looks as similar as possible to the original, but with some parts digitally modified? That would be a bit more misleading, if so.
In the UK for instance, if you're changing credit card terms, you'd be expected to send a notice of variation looking something like this (https://www.hsbc.co.uk/content_static/en/pdfs/en/nov_general...)
Don't make the classic programmer's mistake of expecting everything in the law to need to be as well defined as things are in mathematics. Judges will quite happily decide what a term means on the fly, consistent with precedent and reasonableness, to stop you getting away with anything completely ridiculous.
But in fact there is so much subtlety and nuance to it that I don't understand how computers could ever do it. I mean, you're trying to persuade a human being that your version of the facts is more compelling than your opponents. Last time I checked computers were not very persuasive orators or writers....
You only have to notify people of a change, if it's already signed (and generally that's because your contract will have some form of amendment system that involves notification).
I've been through many B2B negotiations, many of them reaching awful levels of yelling, but the lawyers always red-lined their changes as they undid other side's changes dozens of times.
Akamai's abuse on this front is the reason that we stopped trusting 'track changes' and started doing full-text diffs.
I'm sure it happens. This says nothing about whether these actions would hold up in court, though.
In this case its reasonable to suggest that by submitting his altered contract without drawing the banks attention (e.g. by putting at the front "here are my proposed terms") then not only does the bank not have to abide by them, but he was guilty of deception by trying to trick the bank into signing up to them.
Normally these rules are used to protect consumers from fine print proffered by suppliers. For instance https://en.wikipedia.org/wiki/Interfoto_Picture_Library_Ltd_... established that unusual or onerous terms cannot be hidden in a page of fine print and still be enforceable. But the rules apply the other way around too.
EULAs were inflicted on the rest of the world by US (which has common law system) and are of questionable legality in many countries.
You made an agreement with the retailer- software sales are final. You make the EULA with the publisher/manufacturer/etc- you seek compensation with them.
In some cases where the software is bundled with the hardware you can only reject the EULA by returning the entire system.
A few years ago (>|decade?) music sales and video games were final at my local BB because they assumed you just burned yourself a copy.
Most places I've shopped just say something to the effect of no returns on opened merchandise. No mention of why. I assume you're assuming what they're assuming.
Probably not. However, if you read a EULA, you will notice most of them have a clause to the effect of "if you disagree with this EULA, you can return the software" and AFAIK its usually with the company with whom the EULA is and not with the retailer (eg if you buy Microsoft software, the EULA (and therefore the return if you disagree with the EULA) is with Microsoft and not Best Buy).
For software acquired from a retailer. Microsoft provides limited support
services for properly licensed software as described at (aka.ms/mssupport).
If you purchased the software from a retailer and are seeking a refund, and
you cannot obtain one where you acquired the software, contact Microsoft for
information about Microsoft’s refund policies. See (aka.ms/msoffices), or in
North America, call (800) MICROSOFT or see (aka.ms/nareturns).If Tinkov gave him the unlimited line of credit that he asked for, then didn't they by their conduct consent to his variation of the terms?
https://www.rt.com/business/tinkoff-bank-agarkov-credit-299/ <- says here they approved his unlimited line of credit
The bank then only noticed the changes in the form (since they have to input it to their systems anyway), and didn't notice the changes to the contract (since it's a contract of adhesion, and thus not supposed to be modified).
Contract of adhesion: Wow very interesting point. If Tinkov's offer is construed as a unilateral offer, acceptance was only possible by performance (signing and returning the offer).
Less extreme is reprinting contract to look as close as possible to the original but with added extremely one sided terms. It's debatable how much that side intended for those new terms to be overlooked.
Life is a spectrum. That is why we have courts to argue where on that spectrum a particular example lies.
Contracts aren't deals with the devil. They are never meant to support "haha I tricked you now you are fucked" deals. They are legal support for an agreement between two cognizant and willing participants. Further more, at least in US, unsophisticated parties are protected from contracting away certain rights and from contracts which are wholly one-sided.
This is a complete and accurate description of every contract I've ever been asked to sign. My apartment lease, my phone bill, etc were all written such that in practice I have no choice but to sign them blindly.
I'm guilty of just clicking through in the general case but I've always read apartment leases. My wife's first apartment she just signed without reading and then when we went to move in together discovered there was no clause in the contract for early termination (apart from the required stuff for Reservists who are called up). The office's stance was quite literally: "sure, you can get out of your lease early - by paying us all the remaining rent or putting your name on this subleasing waitlist and waiting for someone to take your spot."
At the very least, find that part of the leasing contract and read it.
Edit: abonnement -> subscription, thanks to @taejo.
However, he felt his life was under threat, which may have helped the bank's negotiating power - after all, it is Russia. https://www.rt.com/business/tinkoff-bank-agarkov-credit-299/
A good example of why you should be sure your country is a safe place for contract disputes to be dealt with by the courts and not by men with ski masks and AK47s.
So imagine someone doing this to you. Smuggling some really mean clause into the fine print which you probably won't read. How that would sound?
Oh, you read all the fine print? Really? I don't. Last time I've bought a travel insurance for around 10 Euro a year, it came with a 65-page PDF in language which you need to be a specialist to understand. It would have been incredibly easy for them to write in there that I have to sacrifice my first-born to them, or whatever.
According to Russian media, Agarkov scanned and altered the original document with an intention to deceive. There's a Russian word "подлог", roughly translated as "forgery", "alteration", "fabrication" into English. So what Agarkov did is exactly "подлог", this is an absolute match if you read the definition in Wikipedia.
There is a number of articles in Russian criminal codex concerning this action. The closes to this case is probably nr. 187 about falsification of credit cards or payment documents. Not an exact fit, but close.
So the problem is obviously there, and believe it or not, even among the least tech-savvy everybody is aware of this problem, how it's done, and current methods to minimize it. It's very important. For example, look at Vitol, the biggest energy trading house in the world (followed by Glencore and Trafigura, both split from the same company). This doesn't include metals or ags. Vitol has $300 billion or so in revenue per year. Strictly looking at their trading business, and considering minimum wholesale volumes around 25,000 barrel lots (barge sizes in the Gulf Coast), so wholesale crude and products trades in blocks worth between $1.5 and $2 million at today's prices. While this is an extremely simplified, ballpark analysis, assuming their trading business has a 2% net margin, they're selling $300 billion that they bought for $294 billion. Roughly, that's about 300,000 transactions for separate, physical movements of petroleum and products. Saving even a few days on payment terms across the board would mean they have to borrow money for a few less days, which would add up to millions of dollars in cash savings that begin to accrue immediately and continue to daily over time.
So, again, the problem is there, and various groups have attempted to build software (which actually did work, technically). The big problem is that implementation of these tools has been tried in areas such as Letters of Credit (negotiation between counterparties and banks for each one if doing transactional trade finance) and the rest of trade finance. The problem isn't the tools, it's that the companies kind of like to play this game, because if you see yourself as on the more sophisticated end of the market then this benefits you, and this system is tried and true, whereas the new system could be prone to errors or other unknown unknowns, where they don't know how to protect themselves.
edit: By the way, much of the above (especially as it concerns the individual specifications of each order, either physical variables in the commodities markets or financial variables in the bond and derivatives markets) is exactly the reason implementation of more streamlined alternatives for clearing and settlement have been so slow. It's not that the technology for actually doing it isn't there, it's that the bottlenecks leading up to that are still there. So if you have a good way for traders to automatically decide which fees and costs apply when and to who, please do tell, but then you've effectively automated the traders, as much of what they do is negotiating those terms.
I'd say if a contract is so long and convoluted that the drafting party can't be bothered to manually verify it's still valid when returned, they have no business drafting that contract in the first place. After all, it's hardly reasonable to assume the other party read it, apparently.
Courts generally take a dim view of the enforceability of any contract which wasn't actively agreed to and understood by both parties. And that's why I don't worry, when I click that I have read and understood some agreement that I definitely haven't, that I might be agreeing to being part of a human centipede.
E.g., poor people are unlikely to take a payday lender to court