North Carolina - Breach of Contract

[Rogean]

Can someone find me specific law, either North Carolina or Federal, that protects a party such as a consumer, from breaches of a contract by a company.

Specifically, part of the contract was removed, and the company thinks its ok to just remove the associated cost and still bind the contract's yearly auto-renewal, forcing me to keep paying for a defunct service that I can no longer use for several more months.

Looking for any specific law quotes that I can use against them.

Thanks.

[runlvlzero]

Contract is not legally binding law, u can stop service and refuse to pay, they can sue you and you can go to civil court and tell them no

[Rogean]

I understand state/federal can overrule contracts. I'd like to find the specific laws for this to shove in their face though.

[runlvlzero]

IANAL sorry

[Tenlaar]

IANAL sorry

I'd say so.

Contract is not legally binding law
An agreement creating obligations enforceable by law.

[runlvlzero]

I'd say so.

EULA's are not legally binding contracts. But yeah, IDK I've heard of people getting out of those crazy gym memberships by just showing up in person and saying they won't pay, GTFL. Then again we're still allowed to have and use guns in my state.

[Obwin]

There should be a clause in the contract about what is allowed to be modified or the process for modification.

In general sounds like you have grounds to get out due to breach of contract. They can't just modify without a signed agreement to do so unless the contract specifically gives them that ability.

Unfortunately most of the "service" contracts are governed by common law, not specific statutes so there is nothing to quote unless you can find a case with similar circumstances. If it is actual "goods" you are recieving then checkout uniform commercial code article 2.

Can probably just give them the evidence in writing and say you are terming due to breach of contract. , Show them why it doesn't make sense to still purchase the other services from them and cite damages if any and stop paying them.

[mefdinkins]

I am not a licensed attorney in North Carolina, this is not legal advice, and I am not your attorney. However, you did pose a question and this North Carolina case may shed light on your situation.

Generally, if either party to a bilateral contract commits a material breach of the contract, the non-breaching party is excused from the obligation to perform further. McClure Lumber Co. v. Helmsman Const., Inc., 160 N.C. App. 190, 585 S.E.2d 234 (2003). If the company breached the contract by not providing the bargained for service then you would be excused from your obligation to pay.

However, they may have a clause in their contract regarding severability. The company may argue that the contract is severable and that the price paid is to be apportioned to each section of the contract they perform. Thus, binding you even if part of the contract has been removed.

[Sirken]

from - http://www.ncdoj.gov/Consumer/Purchases-and-Contracts/Right-to-Cancel.aspx


As a general rule, a contract is binding as soon as you sign it, and you do not have the right to cancel the contract. However, in some instances, North Carolina law, and sometimes federal law, gives you the right to cancel certain transactions even after you have signed a contract or agreement. In these instances, the seller is usually required to notify you of your right to cancel in the contract.

Where there is a right to cancel, the cancellation periods are short, typically three days, and they begin from the day you sign a purchase agreement or complete the transaction. If you choose to cancel the contract, carefully review the cancellation provision in the contract, and notify the seller in writing before the end of the cancellation period. In some instances, you may only need to have your cancellation notice postmarked before the deadline expires.

Below is a selected list of some transactions in which North Carolina consumers generally have a right to cancel the contract, typically within three days of the transaction. However, there are exceptions and qualifications to the right to cancel, some of which are noted below.



Loans Secured by Borrower’s Residence: A loan secured by an interest in the borrower's principal residence, including a mortgage refinance, except the right to cancel does not apply to the following types of mortgage loans:
A mortgage loan for the purchase or construction of a home, or
Advances under a preexisting open-end credit agreement.


Off-Premises Sales of Consumer Goods or Services that take place at a location that is not the seller’s normal place of business, including home solicitation sales, except the three-day right to cancel does not apply to:
Sales for less than $25,
Sales made entirely over the telephone or through the mail,
Sales or rentals of real estate,
Sales of insurance or securities, or
Sales made after negotiations at the seller's normal place of business or at a permanent retail shop.


Mobile Homes purchased from a dealer.


Prepaid Entertainment contracts for dance lessons, dating or social clubs, martial arts, health or athletic clubs.


Discount Buying Clubs.


Credit Repair Services.


Campground Memberships for more than one year if purchased from a campground operator or salesperson.


Certain Food Services, such as contracts to purchase meat in bulk or for home food service plans.


Timeshares purchased from a timeshare developer or salesperson.


Undeveloped Land purchased under certain conditions.



We Can Help

If you have a complaint about canceling a contract, contact us for help or call toll free within North Carolina at 1-877-5-NO-SCAM.

[myxomatosii]

Someone from my adopted state (Mass) talking about my home state (NC).

What a coincidence. Unfortunately I don't know law..

Good luck tho.

[chtulu]

I just went through this in washington state. The lawsuit also included conversion of property and gross enrichment.

[Nune]

All the young lawyers on these forums and none of em showing up to forumcourt to help Roedog. My girls cousin is a lawyer, ill copy/paste him your original post and let you know what he says tomorrow

[runlvlzero]

All the young lawyers on these forums and none of em showing up to forumcourt to help Roedog. My girls cousin is a lawyer, ill copy/paste him your original post and let you know what he says tomorrow

I'm curious post it here. Cause I want to be a young legal aid.

[rike]

why nc? i'm in ncccccccccccccccccccccc

[Frieza_Prexus]

You are not my client. My only advice is to consult a qualified lawyer familiar with NC law. That said, my random musings are as follows: The others pretty much covered this, but a few additional points.

1) You need to read the contract closely. There might be a clause that specifically allows them to do this.

2) Watch out for arbitration clauses and other things that limit your ability to contest this.

Your issue does not seem to be with the automatic renewal, but with the company unilaterally modifying the agreement. Evergreen (auto-renewal) contracts are legal in NC, but subject to some restrictions. If their contract violates any of these NC restrictions (http://statutes.laws.com/north-carolina/Chapter_75/GS_75-41) the auto renew is invalid, and you can perhaps use that to your advantage.

Evergreen contracts are generally considered as one contract that continues forever (or until stopped in a way allowed by the contract). Parties generally cannot modify a contract after it has formed unless the contract itself allows for it OR both parties agree. If they have already billed you under the modified contract and you knew or should have known about the change and still paid you have likely accepted or "ratified" the change and you might be SOL. Or, if the contract's fine print allows for unilateral modification, you're screwed.

If they have no basis for this modification (the existing contract does not explicitly allow OR you did not agree), the modified contract will be seen as an offer of an entirely NEW contract (This new offer may or may not have killed the old contract based upon the specified/allowed ways of terminating the old evergreen contract). If the modification is a NEW contract you will not be bound because there is no "mutual assent" present. In short, both parties must agree to be bound by a contract's terms, and you have not agreed to be bound by these new terms (UNLESS YOU DID AGREE - READ THE OLD CONTRACT CAREFULLY)

A 2011 NC Appeal Court case found here (http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&ved=0CDoQFjAC&url=http%3A%2F%2Fwww.aoc.state.nc.us%2Fwww%2Fpubli c%2Fhtml%2Far%2Fcourtappeals%2F2_august_2011%2F10-1414-1.pdf&ei=lNqwUsv2BOaS2QWvhYDIDw&usg=AFQjCNF0gUhsckXhuDt3qMdOzwqNRfpfSw&sig2=5yEdG1guAfnnOx9IQyMjqA&bvm=bv.58187178,d.b2I&cad=rja) discusses how mutual assent is found.

The following cases are cited in the linked case above.

The essence of any contract is the mutual assent of both parties to the terms of the agreement so as to establish a meeting of the minds.”

Mutual assent is normally established by an offer by one party and an acceptance by the other, which offer and acceptance are essential elements of a contract.”

In short, you simply say that you never agreed to the new terms, and that the following cases clearly spell out what it takes for parties to agree. Remember, read the old contract carefully. It may have language allowing for unilateral modification. If it does, it can be overcome, but it will be a hell of a battle.

[Langrisserx]

^ fuckin pro tips A+