Comments on: Questionable Defense of the Month: “I Signed the Contract in the Wrong Place”

By: David

David — Thu, 02 Jul 2009 12:05:56 +0000

Cliff Tuttle’s comment here is very interesting. Without comment as to what actually happened in the case, let’s say Johnson signed in the wrong spot deliberately in order to indicate that he didn’t intend to be bound. You say “IBM discovered the ruse” but does this mean it knew what he intended or that it simply mechanically rejected the contract as having been signed in the wrong place? Either might be true – he might have returned the contract under cover of a letter saying “I have signed in the wrong spot to show that I do not intend to be bound by your ridiculous attempt to stick me with these terms”, or said words to the same effect to an IBM person across the table. But barring something like that, wouldn’t IBM have been in a position to assume that he intended to sign and manifest his intent to be bound, but just picked the wrong spot? This is of course just another way of saying what Ken and others have already said – the question is not what Johnson intended subjectively by signing in the wrong place, but what a reasonable person in IBM’s position can construe from what Johnson actually did.
I deal with many standard-form document issues in my practice, and this type of situation is a common one. When a document has been mailed in from the hinterland from a signer who immediately departed on a six-month hunting trip after signing the document, it is difficult advice to give that we should reject the document because it’s been signed in the wrong spot. Generally, I’m not talking about employment contracts, and the problem normally affects one document among many, and this admittedly makes it easier. But I think the question still remains – without additional facts, should the recipient of a document signed in the wrong place have to take into account the possibility that the signer did it on purpose to indicate non-assent? I don’t think so.

By: Jeff Russell

Jeff Russell — Tue, 30 Jun 2009 16:25:53 +0000

I think this is like arguing about whether signing the contract with one hand while crossing your fingers behind your back will vitiate the agreement. Putting aside instances of coercion, the question is “Did the signator mean to sign the document in such a way as to convey to interested persons an intent to sign the document?” That is enough to make the execution complete by that party. Of course, that doesn’t answer the question about the effect of the other party not “falling” for it, as may be the case here. But it really has nothing to do with where the contract was signed, or if it was signed in a fashion to mislead as to some undisclosed, secret intention.

By: Art

Art — Mon, 29 Jun 2009 16:21:29 +0000

Mark, that is very interesting, particularly sub-paragraph (c). Fraud is indeed a big word, but we shouldn’t be too shy about it. I had been thinking about whether the broader offence of “dishonestly obtaining property by deception” (which is a statutory species of fraud) could also potentially apply. (Again, this is a UK offence so slightly off the point in this case, though doubtless there are similar US equivalents).

Of course, the counter-argument to both charges in a case like this would be the executive’s claim that it would have been obvious that the agreement was not binding, in which case there was no deception (or at least no intent to deceive or intent to induce somebody to accept it as genuine).

By: Mark Anderson

Mark Anderson — Sat, 27 Jun 2009 10:03:27 +0000

If you deliberately sign an agreement in the wrong place, is this a criminal forgery? Mis-dating an agreement can be a forgery under section 9(1) of the UK Forgery and Counterfeiting Act 1981, so by extension perhaps mis-signing with intent could be? Some key sections of this Act read as follows:

A person is guilty of forgery if he makes a false instrument, with the intention that he or another shall use it to induce somebody to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person’s prejudice.

An instrument is false for the purposes of this Part of this Act—

(a)if it purports to have been made in the form in which it is made by a person who did not in fact make it in that form; or

(b)if it purports to have been made in the form in which it is made on the authority of a person who did not in fact authorise its making in that form; or

(c)if it purports to have been made in the terms in which it is made by a person who did not in fact make it in those terms; or

(d)if it purports to have been made in the terms in which it is made on the authority of a person who did not in fact authorise its making in those terms; or

(e)if it purports to have been altered in any respect by a person who did not in fact alter it in that respect; or

(f)if it purports to have been altered in any respect on the authority of a person who did not in fact authorise the alteration in that respect; or

(g)if it purports to have been made or altered on a date on which, or at a place at which, or otherwise in circumstances in which, it was not in fact made or altered; or

(h)if it purports to have been made or altered by an existing person but he did not in fact exist.

By: Art

Art — Fri, 26 Jun 2009 16:50:46 +0000

People frequently sign contracts in the wrong place unintentionally, intending to be bound. If they were to later claim in a court that they did not in fact intend to be bound, perjury would be a more relevant topic than fraud. I am not saying I think that is the case here, of course.

I also think that the “intention” limb of the contract test is objective, not subjective. If the state of mind is therefore not strictly relevant, would it in any case be perjury to make false statements about it to the court?

By: Interesting Contracts Case Appears in Adams Drafting. | PLBT

Interesting Contracts Case Appears in Adams Drafting. | PLBT — Fri, 26 Jun 2009 02:20:09 +0000

[...] a new document that was never signed. Enforceable? Read the discussion (and comment if you wish) in Adams Drafting. You can read Adams Drafting anytime from our blogroll — right hand column, scroll [...]

By: Cliff Tuttle

Cliff Tuttle — Fri, 26 Jun 2009 02:04:24 +0000

Ken:

This may be one of those cases where the court delivers a stern lecture to the defendant before letting him go.

Cliff Tuttle

By: Ken Adams

Ken Adams — Fri, 26 Jun 2009 00:34:49 +0000

Cliff: I agree that apparently there was no contract and hence no fraud. [Actually, why did I say this? I have no idea what the elements of fraud are!-KAA] But let’s consider further why he signed in the wrong place. My analysis didn’t go into that, but the way things unfolded makes it entirely possible that he did in fact intentionally sign in the wrong place. I can think of only two reasons for his doing so, both of them bad. Was that his way of saying he wasn’t willing to be contractually bound? If so, a far clearer way of conveying that message would have been not to sign at all. Or was he hoping that IBM wouldn’t notice and that down the road he’d be able to invoke the “I signed in the wrong place” defense? Not only would that have offered little chance of success, it would also have been unseemly. Either way, if Johnson intentionally signed in the wrong place, he didn’t cover himself with glory. Ken

By: Cliff Tuttle

Cliff Tuttle — Fri, 26 Jun 2009 00:31:28 +0000

Not so fast — suppose Johnson did sign in the wrong place with the intent of not consenting. Then, apparently, IBM discovered the ruse and sent him another contract to sign. At that point, IBM rejected the document and proffered a new one for signature. But Johnson never signed the replacement and thus, no agreement.

Its a little like sending a check without a signature, forcing the recipient to mail it back. Not ethical, but it works. (No I am not recommending this approach, especially not to my clients)

Cliff Tuttle

By: David

David — Wed, 24 Jun 2009 19:25:41 +0000

Fraud’s a strong word, but it seems to me the sort of strategem that shouldn’t “work”. If you don’t intend to be bound by a contract, don’t sign it at all, anywhere.