Well, I would like to continue the conversation. The thread got closed before I could reply to the post where Jet got his shorts in a wad over my statement that a credit card agreement is a contract of adhesion. Which I still think it is.
I checked three different definition sources for contract of adhesion:
1. Adhesion contract: A fine-print consumer form contract which is generally given to consumers at point-of-sale, with no opportunity for negotiation as to it's terms, and which, typically, sets out the terms and conditions of the sale, usually to the advantage of the seller.
2. contract of adhesion: a contract that is not negotiated by the parties and that is usually embodied in a standardized form prepared by the dominant party
3. A contract which normally requires one party to make a reasonably detailed offer to do something -- including, typically, the price, time for performance and other essential terms and conditions -- and the other to accept without significant change.
All of which sound to me like a credit card company cardholder agreement.
I described it as "take it or leave it" which was the definition I recall from my business law class many years ago. By that, I did not mean that the "take it or leave it" was a function of some statutory limitation but is a result of the practical application.
The OP's question was whether or not he could "mark-up" an agreement and then send it back to the credit card company and cause them to be bound by the "marked-up" agreement.
From a practical point of view I think that would be very difficult. Partly because one of the elements of a valid contract is a "meeting of the minds". If I change the cardholder agreement to modify the terms (for example, all statements from the credit card company must be delivered to me pasted on the back of a 42 inch plasma TV) then I expect there really is no meeting of the minds. Even if you use an example less extreme, I suspect credit card companies are rather narrow minded about such things.
Besides, the last time I read one of those agreements, there was language that essentially said the card holder must accept the agreement in full without amendment.
Also, as best I recall, there is language all over those agreements and perhaps even the back of the card and the charge transaction slip and the fine print on the back of the statement which say effectively that use of the card consitutues agreement with the terms of the cardholder agreement.
I could be argued that credit card companies should not be able to unilaterally force changes in an existing cardholder agreement on the consumer. Indeed, they cannot. If you think about it, everytime you receive a new agreement, the consumer can choose not to accept the changes. The consumer must communicate their refusal in writing and generally to a special address set up for that purpose. If the consumer chooses to not accept the changes, then they may no longer charge on the card and must repay the balance under the terms of the old agreement. Of course, many people would say the consumer really has no choice in that scenario. In fact it is another application of the golden rule -- he who has the gold makes the rules.
Again,the long and short of the issue is that a consumer is disadvantaged in the ability to negotiate terms with the credit card company -- so much so that for all practical purposes there is no negotiation. Which sounds like "take it or leave it". Insurance contracts are pretty much the same.
But, or the sake of argument, assume the consumer modified the agreement to provide for, say a 45 day grace period instead of the standard 25 days. The consumer mails the marked up agreement back to the credit card company. One of two things will happen.
One, the company writes back and says "no way -- use the card only on our terms".
Two, the marked up agreement is missed by the $8 per hour clerk who opens the mail. The credit card company does not have their computers set up for different grace periods and proceeds to service the account as standard. The consumer says you are in breech of the agreement and the credit card company says "bite me". Who is going to win that war?
At that point the consumer can either do it the way the credit card company wants -- or they can file a lawsuit against the credit card company -- or they can default on the card and let the credit card company bring a lawsuit and then try to file some sort of counterclaim. The latter two options are risky and expensive. In the end, what does the judge decide? I don't know, which is exactly what I told the OP in the original post.
Jet is a man who always has to have the last word -- and I expect he will in this case. I still think a credit card agreement is a contract of adhesion.
