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Comment by mrt0mat0 | Hacker News Reader

If you as a customer are held accountable for fine print that you never read, why isn't the reverse? This should be a no-brainer if you ask me. Hypocrites

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The bank is going to argue that he forged documents. They'll probably win not because he is in the wrong but because of the (quite proper) turmoil that would result. It's a rare judge that'll uphold the rule of law when it might be inconvenient for big institutions.

If the same thing that happened in reverse, what would you expect to happen?

Lets say that you were given some terms and conditions to read, the and the bank swapped them out for others just before you signed. The new terms contain a condition that you must pay them several hundred thousand dollars instead of 10.

Which way would you expect the court to rule? Which way do you think it should?

Its not an equal power position and hence not an equal standard. The bank should be more liable than an individual without a doubt.

How much more liable will be decided by the judges.

At common law, the heart of a contract is consensus 'ad idem' - agreement to the same thing. I can only enforce a contract against you if a reasonable person in my position, at the time of contracting, would have believed that you had accepted the contract (including the same terms that I want to enforce).

Usually, having a written contract that both parties sign means that condition's easily met. But pretty clearly, swapping some small print out just before you sign might undermine that, depending on the situation. See e.g. Hartog v Colin & Shields [1939] 3 All ER 56.

(Obviously, this is irrelevant to the person in the article, as Russia is not a common-law country. And I don't know if it's relevant to American HN readers either: my possibly flawed understanding (as a Brit) is that most consumer contracts in the US are not governed by common law, but by the UCC, of which I know nothing).

How can you prove belief? Test by fire?

That's the beauty of using objective (rather than subjective) intent as the test. You don't need to prove belief. Subjective belief is irrelevant. What you need is objective facts, and a court that pretends it's a reasonable person in the position of e.g. the offeree, knowing everything they knew, and decides what it would have understood by the offer.

The point is: you interpret words as they'd be understood by a reasonable person in the position of whoever the words were spoken to, not as they were understood by the person who spoke them.

E.g. consider the Hartog case. Key sentence: "...the plaintiff could not reasonably have supposed that that offer contained the offerers' real intention." ("Could not reasonably have supposed" is legal shorthand for "A reasonable person in their position would not have supposed"). If they had genuinely thought that the offeror meant it, it wouldn't have mattered.

No test by fire needed.

(NB this is English common law. I've been told in the past (https://news.ycombinator.com/item?id=5402595) that the UCC in the US is a whole lot more subjective than English law, so this is likely wrong in the US).

Do you have in UK these scammers that invite bunch of old people to some sort of meeting where they give them cake, some crappy gift and convince them that some other crappy thing, like a wool blanket is worth few thousands dollars and they sign agreements with them so they can pay for the said blanket in installments?

The rule you described is really nice but is it used in practice to fight such scammy business practices?

Your example is ridiculously contrived.

I would imagine the rule is not used extensively in practice because it exists as a preventive measure should such a thing ever come up.

That is not an contrived example but pretty accurate description of actual scam scheme that got popular again in recent years.

I've never heard of it, but I wouldn't be surprised if we did.

But: It's not clear to me that the rule is at all relevant to that scam. As you describe it, it's not that the victims reasonably appeared to be agreeing to do one thing when what they signed said something different. They were persuaded to buy a blanket for x thousand dollars, and did.

The most obvious tool contract law has to undermine that is misrepresentation. If the scammer told a lie to get the victim to sign, then the contract's voidable by the victim. (This is true even if the misrep is innocent. If it's fraudulent, then you get a better measure of damages - and, of course, the scammers might've committed the criminal offence of fraud).

There's also a doctrine of 'undue influence', which if proved can also make the contract voidable.

Finally, even if the contract is valid, since R v Hinks [2000] UKHL 53, it's not impossible that the scammers could be convicted of theft of the money. So, validly transferred per civil law, theft per criminal law! Which is... surprising. (IMHO it's bloody stupid, but that's another debate).

There is a similar case in the US dealing with acceptance that was later claimed to be a joke: Lucy v. Zehmer, 196 Va. 493 (1954)

The test is objective manifestation of intent to be bound.

In US contract law governed by common law principles there is something called the mirror image rule. An offer must be wholly accepted or else rejected. If any terms are modified that is treated as a rejection and counter-offer.

The UCC, which in the relevent part only covers the sale of goods, abrogates this rule and allows and contract to be formed so long as the material terms are identical. The provisions of the resulting contract are governed by UCC 2-207 and the process of determine them is given the colorful name the "battle of the forms".

In reverse I would expect that the bank would prevail.

What I would expect would happen and what I believe to be the correct ruling and how the world should work in ideal circumstances are all different things, sadly.

So just because I think the bank will prevail doesn't mean I think it's the correct ruling or morally right or the kind of world I want to live in. It just means that I don't think a judge would slow banking to a crawl for the sake of rendering the correct judgement on this case.

> slow banking to a crawl

So making them read what they force everybody to read would be cruel?

Besides. It has easy fix. Bank should sign the agreement first before sending it to the customer.

Look I'm on the side of "the banks are assholes and they deserve to get slammed on this" 100%. But I also know that judges are a part of a big institution (government) and the banks are also big institutions. And historically we've seen that they're in cahoots outright or something close to it.

But just because I want them to get slammed, or because they deserve to get slammed, or even that it is legally correct that they get slammed, none of those things means that they actually WILL get slammed.

Trust me I want them to get hurt on this one and for it to reform the fine print bullshit and all of that. It would be so awesome if it did happen. But I'm definitely not optimistic that it will happen.

Well also, a government has a responsibility to act in the best interests of its people. While shafting the banks with a gigantic legal dick would be kind of funny, it could hurt or inconvenience a lot of people.

If this works, people all over Russia will likely try stuff like this. Banks will have to check every contract with every customer ridiculously carefully until they can roll out a global solution. While fine print is sub-optimal and irritating, forced mass reform has serious short-term repercussions.

So what? Changing laws all the time also inconveniences people every time government does that. People can adapt.

Any contract with small print sould be invalid. That's what should happen.

But that's not what seems to happen at Russia. And having different rules for each party is hipocrisy.

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