A telephone solicitation and agreement is for a monthly service covering 1 year. There are installation charges, some hardware charges, and also additional hardware/removal charges as well as some form of service performance criteria. The telephone solicitation is allegedly recorded. How does either party prove their understanding of the agreement terms, if not with a written document.
Please see the DCA article linked below section VI.
Avvo doesn't pay us for these responses, and I'm not your lawyer just because I answer this question or respond to any follow-up comments. If you want to hire me, please contact me. Otherwise, please don't expect a further response. We need an actual written agreement to form an attorney-client relationship. I'm only licensed in CA and you shouldn't rely on this answer, since each state has different laws, each situation is fact specific, and it's impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue.
1 found this helpful
9 lawyers agree
Most likely. You don't indicate the type of service being provided, but most likely, the Home Solicitation Sales Act applies to your situation, as Attorney Koslyn suggests.
If not, then the ordinary methods of proving an oral contract apply. It would be the plaintiff's burden to prove the terms of the contract (offer, acceptance and consideration) as well as the customer's breach and resulting damages. The plaintiff can prove his/her/its case with oral testimony as well as with documentary evidence.
Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This Avvo.com posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.
6 lawyers agree
Lawsuit / Dispute Attorney
The posting does not specify what the services are or the amount of money involved. Some services are required by California law to be specified in a written contract. Telephone solicitations do have limits and there are rights of rescission.
A contract for services that is not to be completed within one year must also have a written contract to be enforced. See Cal. Civil Code, Section 1624, subdivision (a)(1). I would probably not advise a client to agree to a contract without it being in writing for this long of a term, as so much can happen and people forget or change their mind over a year. I agree with the concern that you express in your last sentence.
Robert Stempler (please see DISCLAIMER below)
NOTICE: The above statements are provided for general information purposes only and are not intended as legal advice or advice of any sort for a specific case or legal matter. If you do not have a signed attorney-client fee agreement with the Consumer Law Office of Robert Stempler, APC ("the Firm"), then until such written fee agreement is provided and signed by both a prospective client and attorney for a particular case, neither Mr. Stempler nor the Firm will represent you nor will they be your attorney in any matter and you remain responsible for retaining your own attorney and for compliance with any and all deadlines and for any statutes of limitations that may pertain to potential claims. Comments made on a public forum, such as Avvo.com, to not have any confidentiality because others may read them. If you desire a private consultation with Mr. Stempler that is confidential, please go to www.StopCollectionLawsuits.com and submit a free eCase Review. The result portrayed for a client was dependent on the facts of that case. Results will differ if based on different facts. The Firm and Mr. Stempler are a debt relief agency. The Firm and Mr. Stempler help people file for bankruptcy relief under the Bankruptcy Code.
3 lawyers agree