Do use and acceptance contracts have law provisions?

[My~Cuz~n~Vinny~]

Does a generic use and acceptance ( presumed contract ) create liability if there is no agreement on a definite sum in the (presumed contract?

Offer and Acceptance

In order to form a binding contract, there must be mutual assent or a meeting of the minds at the time the contract was formed. In order for there to be a meeting of the minds, the parties must agree that they have entered into a contract and must have similar understanding as to the essential terms.

Necessity for Definite Terms

To be enforceable, an agreement must be definite and certain as to its essential terms and requirements.

Offer and Acceptance

In order to form a binding and enforceable contract, there must be an offer and an acceptance based on a similar understanding by the parties as to the essential terms of the contract

The plaintiff claims that the defendant breached a contract implied by conduct. Even if there was no oral or written contract expressed in words, there still could be a contract based on conduct if the plaintiff establishes that the plaintiff and the defendant agreed, by actions or conduct, to <insert alleged terms of contract>. To determine whether this contract exists, you must consider only whether the conduct and acts of the parties show an agreement to <insert alleged terms of contract>. If, based upon the acts and conduct of the parties, you determine that the defendant agreed to <insert alleged terms of contract>, and that the defendant breached that agreement, the plaintiff may recover.

Unjust Enrichment (Implied-In-Law or Quasi-Contract)

The plaintiff seeks to recover the value of <insert goods/services) (he/she/it) provided because the defendant was unjustly enriched by the plaintiff's provision of <insert goods/services>. Unjust enrichment means that it is contrary to equity and good conscience for the defendant to retain a benefit that has come to the defendant at the expense of the plaintiff.

To find unjust enrichment, you must find that the plaintiff has provided <insert goods/services>, that the defendant has benefited from those <insert goods/ services>, that the defendant unjustly did not pay for that benefit, and that the defendant's failure to pay hurt the plaintiff.

[<If the plaintiff has pleaded unjust enrichment in the alternative to breach of contract:> For you to find for the plaintiff under this legal principle, you must first find that there was no written or oral contract expressed in words and no contract implied by conduct for the plaintiff to provide <insert goods/services>. If you find that there was a contract for the plaintiff to provide <insert goods/ services>, you may not find that the defendant was unjustly enriched.]

Conflicting Provisions - Specific Terms Govern over General Terms

If you find that specific terms and general terms both apply to the same subject in the contract, you should favor the specific terms over the general terms. <Describe the specific and general terms at issue if necessary.>

Irrevocable Offers - Option Contracts

The (offeree: defendant / plaintiff)1 claims that (he/she/it) had an option contract from the (offeror: defendant / plaintiff). An option contract is a continuing offer to sell. It may not be revoked until after the time period fixed by the agreement of the parties. If, for example, I give you an option to purchase my bicycle for $200 for a period of two weeks, then I cannot revoke the offer to sell the bicycle during that two week period, and at any time during those two weeks you can accept the offer and purchase the bicycle for $200.

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If an alleged account is shown as never late paid as agreed, where does the contract agree on a definite sum? Minimum payments of a presumed contract are as the generic contract assumes and is agreed between parties.

The assumed contract has no agreement to any certain sum.

Is use and acceptance a stand alone defense for a credit card Plaintiff to win on a generic contract..?

By law where do they stand or any certain sum agreed to be owing? As an account stated has only a presumed liability of damage to the Plaintiff.

How do they prove you did not pay as agreed on any sum not agreed to in a presupposed alleged agreement?

Thank for your time folks.

[My~Cuz~n~Vinny~]

Do not most generic credit card say....pay any amount you want as long as a minimum payment ,that they propose, is paid as agreed? There is no other specific sum of a promise to pay is there?

Never seen a credit card agreement contract accept what Iv'e seen here.

[nascar]

How do they prove you did not pay as agreed on any sum not agreed to in a presupposed alleged agreement?

The terms of your agreement will probably indicate that periodic statements of account will be sent, upon receipt of which you agree to pay the amount requested, within the time set forth therein.

If you receive a statement, and do not pay according to its terms, its a fair bet that the presumption will arise that you did not pay as agreed.

[BrunoTheJDBkiller]

Does a generic use and acceptance ( presumed contract ) create liability if there is no agreement on a definite sum in the presumed contract?

It is usually called an implied contract. This means that the conduct of the parties creates the presumption that both parties agreed to the terms. In the case of credit cards, they would argue that the "definite sum" is whatever your balance happens to be, up to the credit limit of the card. However, if they never provided an agreement, what were you supposed to have agreed to? If you later find out they illegally charged you a high rate of interest or illegal late fees, now you have a breach of contract argument. After all, you never agreed to be robbed by a credit card company. You assumed that what you were being billed was legal. They love to use the interest rate on the billing statement trick, but you can argue that too. Billing statements are not contracts. They are a mere recitation of alleged charges made to the account and the amount of interest which was charged according to what was previously agreed to. How do they prove you agreed to an interest rate that changes every month when they can't even prove they sent an agreement? These aren't the strongest arguments, but when you string five of them together it makes your case look better.

The plaintiff claims that the defendant breached a contract implied by conduct.

And they had better have put that exact language in the complaint, too, or they are going to have one heck of an argument thrown at them.

Is use and acceptance a stand alone defense for a credit card Plaintiff to win

Depends on where you live. MO and DE have this on the books, so does SD. If your state does not, you have an argument. I think it would revert to basic contract law, but it depends on what they put in the complaint and what they said in discovery. If they specifically plead something that does not appear in any state statute, you can use the legally insufficient argument and try a motion to strike. the trend these days is to plead a very bland, non specific complaint and hope the judge will read into it what they want.

[My~Cuz~n~Vinny~]

The terms of your agreement will probably indicate that periodic statements of account will be sent, upon receipt of which you agree to pay the amount requested, within the time set forth therein.

If you receive a statement, and do not pay according to its terms, its a fair bet that the presumption will arise that you did not pay as agreed.

Yep ! Thanks nascar !

So the Presumption is that it was paid as agreed never late But their records presume to say that there is an amount still due and owing. Thus the Argument. But the agreement contains no language backed by law that says a presumption of indebtedness exists as fact. It wasn't in any agreement that a certain and finite sum is agreed to between parties.

[My~Cuz~n~Vinny~]

Does a generic use and acceptance ( presumed contract ) create liability if there is no agreement on a definite sum in the presumed contract?

It is usually called an implied contract. This means that the conduct of the parties creates the presumption that both parties agreed to the terms. In the case of credit cards, they would argue that the "definite sum" is whatever your balance happens to be, up to the credit limit of the card. However, if they never provided an agreement, what were you supposed to have agreed to? If you later find out they illegally charged you a high rate of interest or illegal late fees, now you have a breach of contract argument. After all, you never agreed to be robbed by a credit card company. You assumed that what you were being billed was legal. They love to use the interest rate on the billing statement trick, but you can argue that too. Billing statements are not contracts. They are a mere recitation of alleged charges made to the account and the amount of interest which was charged according to what was previously agreed to. How do they prove you agreed to an interest rate that changes every month when they can't even prove they sent an agreement? These aren't the strongest arguments, but when you string five of them together it makes your case look better.

The plaintiff claims that the defendant breached a contract implied by conduct.

And they had better have put that exact language in the complaint, too, or they are going to have one heck of an argument thrown at them.

Is use and acceptance a stand alone defense for a credit card Plaintiff to win

Depends on where you live. MO and DE have this on the books, so does SD. If your state does not, you have an argument. I think it would revert to basic contract law, but it depends on what they put in the complaint and what they said in discovery. If they specifically plead something that does not appear in any state statute, you can use the legally insufficient argument and try a motion to strike. the trend these days is to plead a very bland, non specific complaint and hope the judge will read into it what they want.

Thanks Bruno !!

1st count is default credit card.(thats how they put it.)

1st sentence is defendant became indebted on or around....

So in all essence We subjectively say defendant defaulted.Count 1

and then subjectively allege an indebtedness.

Second count is account stated.

In Oceanic International Corporation v. Lantana Boatyard,cited supra, the basic premise of an account stated action is that the action itself presupposes some indebtedness. If in fact such indebtedness arose from the breach of a promise, and the indebtedness itself is presupposed, it therefore follows that the breach of promise must also be presupposed. Accordingly,successful account stated actions are premised upon the existence of liability on the part of the alleged debtor.

An account stated is a theory of damages as opposed to one of

liability.

In situations where no account has been proven as stated, or where there

is no existence of an agreement between the parties on a particular alleged

indebtedness as being correct ,by rule of law there is nothing left but

hearsay.