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Bait and Switch Tactics Against Consumers


It might be a savvy negotiating tactic to agree to something, force the other party to commit their time and resources to you, and then use that opportunity to leverage better terms, but for consumers, it’s a nightmare. However, contract law provides protection where the terms of the contact may not.

One thing that I always hear from clients is “I read the agreement, it says I can’t do something, or it says that the business can do X, so I’m stuck.” Now, on one hand – between businesses – that is generally true. Please note that this does not necessarily apply with regard to an individual contracting with a business, those are commonly referred to as contracts of adhesion, and that is probably a subject for another post. But, there are some basic principles of contract law which are going to trump portions of a contract. Most of them are fairly simple to understand, so it’s a good idea for consumers to become aware of them, and it’s a better idea for businesses to be aware of them. Don’t write unenforceable clauses into your contracts, small business owners.

Here’s one that for some reason is coming up a lot in my cases: Contracts, or modifications of contracts, are not enforceable where one person is not bound or doesn’t have to give up anything. For example, say you have an individual with a contract to do some work on your house. An additional problem arises, and the contractor says, no problem, I’ll take care of it. No increase in price or change in the terms of the agreement. That contractor is giving a gratuitous promise. Nice, yes. If he does it, applaud that guy’s customer service to your friends who need a contractor. Remember him come Christmas time. But is it enforceable under the terms of your original agreement? Nope.

Another one, business and an individual have an agreement. When the business is doing the job, they realize that they can’t complete the job for that price. “We’ll stop right here, he says, if we can’t increase the price.” Well the individual doesn’t want to call another guy… and he got such a great deal the first time … and he already took time off of work… and they’re doing such a great job… and he agrees to the increase. Nope, the price increases without any additional promise or benefit to the individual. That price change is unenforceable; the individual doesn’t have to pay it.
One final one, a contract says this is our price, “but we can modify it at any time.” Why on earth would you be allowed to do that? That is unenforceable.

The legal language for stuff like this is “mutuality of obligation,” “illusory promise,” “gratuitous promise,” and “consideration.” But just remember that you can’t alter a term of the contract without both parties getting something NEW of value. Consumers don’t let companies “bait and switch” you. Companies, don’t get greedy with the terms of your agreement and write something that’s too good to be true. You might get nothing in return.

If you have a dispute over the terms of a contract, contact Ed Maginnis at Maginnis Law, PLLC. Maginnis Law, PLLC services Raleigh, Cary, Apex, Wake Forest and the rest of the Triangle area. Contact the firm at 919.526.0450 or visit our website at Maginnislaw.com.  You can also subscribe to our mailing list to learn about the rights you have under consumer protection law against large corporations.

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