Fraudulently signed contract Vodacom

[Arthur]

Prima facie, nothing in your chapter and verse requires that particular clauses in a contract be separately initialled, especially "having regard for the circumstances" This has already been decided by the courts and the Commissioner.

 

[Captain-Justice]

Prima facie, nothing in your chapter and verse requires that particular clauses in a contract be separately initialled, especially "having regard for the circumstances" This has already been decided by the courts and the Commissioner.

No it hasn't. Show me your proof.

The clerk forged the signature because they are trained to point out the risks to the customer according to CPA. I recently entered into a contract and had to initial all the important paragraphs like OOBF, early cancellation etc.

 

[House]

Prima facie, nothing in your chapter and verse requires that particular clauses in a contract be separately initialled, especially "having regard for the circumstances" This has already been decided by the courts and the Commissioner.

You do not really think that Vodacom, or any other company for that matter, will go to a court of law, a commission or any other investigative body and openly admit that their employee(s) forged an initial / signature? I would rather think that very same clerk will provide an affidavit and physically come and testify that it was indeed you who signed every page in his/her presence. Hell, if you look on the contract there may even be another witness on behalf of the company who will come and testify the same thing.

 

[Arthur]

You do not seem to realise that the purchaser had already agreed to all the terms of the contract, evidence of which is his mark on every page, the fact that he walked out with the phone, and the fact that on his return he did not raise any point other than the now cheaper price, and later the fairy instrument. It really doesn't matter if the store clerk had written the seller's name or his own name or "Mickey Mouse is a Mampara" on the paper. The paper is not the contract, it is only evidence of the contract. Never has the purchaser averred that he would not have entered into the contact had he been aware of the terms, or that the seller concealed terms, or misrepresented anything that induced him to enter into the agreement.

The failure to endorse a particular clause or section of the written agreement, or the fact that the sales clerk did so ignorantly or even wrongly, does not vitiate the rights of the seller or the purchaser for that matter.

 

[HavocXphere]

You do not seem to realise that the purchaser had already agreed to all the terms of the contract, evidence of which is his mark on every page. It really doesn't matter if the store clerk had written the seller's name or his own name or "Mickey Mouse is a Mampara" on the paper. The paper is not the contract, it is only evidence of the contract.

uh...its still impersonation regardless of whether the contract is valid with/without it. (Which btw we established on page 1 of thread it likely is...so not sure why this is still going on page 5).

At the very least I'd except VC to launch an investigation for deeply unethical conduct. Supplier staff initialing legal documents instead of the customer is not OK on any level regardless of legal effect.

 

[Arthur]

Sorry Havoc, I'm typing on a phone and accidentally posting before my post is fully composed... Very irritating. Apols for the confusion this causes.

 

[Arthur]

Of course I fully agree the sales clerk was wrong. The behaviour is inexcusable and in no way defensible. But that is a side issue and a matter between her and her employer, since the requirement to obtain a purchaser's endorsement of certain specific clauses is merely an internal administrative rule and not ad rem as far as the actual contract validity is concerned. The seller could just as easily have required an endorsement by the sales clerk as evidence that that she had drawn the purchaser's attention to that specific clause.

In any case, the wrongful act of an intermediary cannot itself render the contract fatally defective, since that person is not a party to the contract.

Neither is it impersonation. The sales clerk did not represent herself as the purchaser in any way material to the issue in dispute, and neither did she alter the agreement or agree to terms that the purchaser had not already by a prior act agreed to.

Though this is an unpleasant case, the issues under discussion are settled law.

 

[Captain-Justice]

Arthur, please read up on contract law before passing this ill advice. A colleague of mine was fired because of forging a client's signature. You obviously don't have a clue what you're talking about. What you're postulating is absurd.

Do your research. Gordon Timothy vs Nampak. Labour Appeal Court. 07-03-2010

 

[Paul Hjul]

there is no suggestion of forging a signature, get your facts straight

 

[Arthur]

Arthur, please read up on contract law before passing this ill advice. A colleague of mine was fired because of forging a client's signature. You obviously don't have a clue what you're talking about. What you're postulating is absurd.

suit yourself. You are making up facts. Not only don't you understand contract, you don't know what fraud is, what forgery is, or what impersonation is.

 

[frustrated117]

I have seeked legal advice and the attorney confirmed that contracts on which amendments are made following the signing at the store (In this case, scrapping certain terms and pointing out other terms and initialling on behalf of the client and not the staff member themself) can usually be deemed invalid. It will be the choice of VC and the consumer as to whether both parties feel comfortable continuing with the current contract.

I will keep everyone updated once VC responds with their findings and the possible outcome of the matter.

 

[Captain-Justice]

I have seeked legal advice and the attorney confirmed that contracts on which amendments are made following the signing at the store (In this case, scrapping certain terms and pointing out other terms and initialling on behalf of the client and not the staff member themself) can usually be deemed invalid. It will be the choice of VC and the consumer as to whether both parties feel comfortable continuing with the current contract.

I will keep everyone updated once VC responds with their findings and the possible outcome of the matter.

Great. Get a advice from professionals who know what they're talking about.

Flowery words can be deceiving.

 

[Arthur]

Ah, but that is an entirely different matter. If certain clauses were scrapped or changed or subsequently cancelled, and you were not aware of that, then clearly we are dealing with a very different situation. Then of course you have grounds for calling the entire agreement into question.

You never said that clauses were deleted.

TO MY SHOCK, I NOTICED THAT THE CUSTOMER ACCEPTANCE NEXT TO THE PARAGRAPHS WERE INITIALLED BY SOMEONE AT THE SHOP AND NOT MYSELF. I signed the bottom of the page but never initialled the paragraphs. The store now sent the query to Vodacom Legal and does not want to comment further.

.

This is materially new information.

 

[Captain-Justice]

Ah, but that is an entirely different matter. If certain clauses were scrapped or changed or subsequently cancelled, and you were not aware of that, then clearly we are dealing with a very different situation. Then of course you have grounds for calling the entire agreement into question.

I think you should reread this post from the start to get a better understanding what this is about.

 

[Arthur]

I did, and quoted above.

Here it is again.

TO MY SHOCK, I NOTICED THAT THE CUSTOMER ACCEPTANCE NEXT TO THE PARAGRAPHS WERE INITIALLED BY SOMEONE AT THE SHOP AND NOT MYSELF. I signed the bottom of the page but never initialled the paragraphs. The store now sent the query to Vodacom Legal and does not want to comment further.

.

 

[Captain-Justice]

Ah, but that is an entirely different matter. If certain clauses were scrapped or changed or subsequently cancelled, and you were not aware of that, then clearly we are dealing with a very different situation. Then of course you have grounds for calling the entire agreement into question.

You never said that clauses were deleted.

.

This is materially new information.

Ho hum

 

[Captain-Justice]

CPA
Notice required for certain terms and conditions
49. (1) Any notice to consumers or provision of a consumer agreement that purports to—
(a) limit in any way the risk or liability of the supplier or any other person;
(b) constitute an assumption of risk or liability by the consumer;
(c) impose an obligation on the consumer to indemnify the supplier or any other
person for any cause; or
(d) be an acknowledgement of any fact by the consumer,
must be drawn to the attention of the consumer in a manner and form that satisfies the formal requirements of subsections (3) to (5).
(2) In addition to subsection (1), if a provision or notice concerns any activity or 25 facility that is subject to any risk—
(a) of an unusual character or nature;
(b) the presence of which the consumer could not reasonably be expected to be
aware or notice, or which an ordinarily alert consumer could not reasonably be
expected to notice or contemplate in the circumstances; or
(c) that could result in serious injury or death,
the supplier must specifically draw the fact, nature and potential effect of that risk to the attention of the consumer in a manner and form that satisfies the requirements of subsections (3) to (5), and the consumer must have assented to that provision or notice by SIGNING or INITIALING the provision or otherwise acting in a manner consistent with acknowledgement of the notice, awareness of the risk and acceptance of the provision.
(3) A provision, condition or notice contemplated in subsection (1) or (2) must be written in plain language, as described in section 22.
(4) The fact, nature and effect of the provision or notice contemplated in subsection
(1) must be drawn to the attention of the consumer—
(a) in a conspicuous manner and form that is likely to attract the attention of an ordinarily alert consumer, having regard to the circumstances; and
(b) before the earlier of the time at which the consumer—
(i) enters into the transaction or agreement, begins to engage in the activity,
or enters or gains access to the facility; or 45 (ii) is required or expected to offer consideration for the transaction or
agreement.
(5) The consumer must be given an adequate opportunity in the circumstances to
receive and comprehend the provision or notice as contemplated in subsection (1).

 

[Arthur]

Facts matter, CJ. My points are correct for the facts as presented.

For what it's worth I have little doubt that the seller will simply decline to pursue the matter further. It's just not worth their while.

 

[Paul Hjul]

the facts are that there is no amendment and no fraud
the real question relates to a cooling off period - which is a right I am supportive of in consumer credit agreements of this nature, and I believe a free market actually produces

As I see it if I was VC I would cancel the contract and render it paid up from an accounting perspective, hand over the device to the store and let them resell the device (if there is an OOBF to deal with that and eventually they will have a device to resell) and then refuse to enter into a contract with the customer

 

[Captain-Justice]

I have seeked legal advice and the attorney confirmed that contracts on which amendments are made following the signing at the store (In this case, scrapping certain terms and pointing out other terms and initialling on behalf of the client and not the staff member themself) can usually be deemed invalid. It will be the choice of VC and the consumer as to whether both parties feel comfortable continuing with the current contract.

I will keep everyone updated once VC responds with their findings and the possible outcome of the matter.

Good Luck. We need more people like you as too many consumers are self defeating as they don't have the guts to take on the corporate bullies.