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Consumer Banking and Payments Law: Section 3-312. Lost, Destroyed, or Stolen Cashier’s Check, Teller’s Check, or Certified Check.*

(a) In this section:

(1) “Check” means a cashier’s check, teller’s check, or certified check.

(2) “Claimant” means a person who claims the right to receive the amount of a cashier’s check, teller’s check, or certified check that was lost, destroyed, or stolen.

2002 amendments (not widely adopted, see Appx. A, Introduction) replaced “written statement made,” as set out in the footnote below.

Consumer Banking and Payments Law: Section 3-401. Signature.

(a) A person is not liable on an instrument unless (i) the person signed the instrument, or (ii) the person is represented by an agent or representative who signed the instrument and the signature is binding on the represented person under Section 3-402.

(b) A signature may be made (i) manually or by means of a device or machine, and (ii) by the use of any name, including a trade or assumed name, or by a word, mark, or symbol executed or adopted by a person with present intention to authenticate a writing.

Consumer Banking and Payments Law: Section 3-403. Unauthorized Signature.

(a) Unless otherwise provided in this Article or Article 4, an unauthorized signature is ineffective except as the signature of the unauthorized signer in favor of a person who in good faith pays the instrument or takes it for value. An unauthorized signature may be ratified for all purposes of this Article.

(b) If the signature of more than one person is required to constitute the authorized signature of an organization, the signature of the organization is unauthorized if one of the required signatures is lacking.

Consumer Banking and Payments Law: Section 3-404. Impostors; Fictitious Payees.

(a) If an impostor, by use of the mails or otherwise, induces the issuer of an instrument to issue the instrument to the impostor, or to a person acting in concert with the impostor, by impersonating the payee of the instrument or a person authorized to act for the payee, an indorsement of the instrument by any person in the name of the payee is effective as the indorsement of the payee in favor of a person who, in good faith, pays the instrument or takes it for value or for collection.

Consumer Banking and Payments Law: Section 3-407. Alteration.

(a) “Alteration” means (i) an unauthorized change in an instrument that purports to modify in any respect the obligation of a party, or (ii) an unauthorized addition of words or numbers or other change to an incomplete instrument relating to the obligation of a party.

Consumer Arbitration Agreements: 4.4.1 Overview

Other than express assent, a party’s assent to a contract may be implied, as manifested through conduct that is consistent with an agreement to be bound by contractual terms. Before finding implied assent, two conditions must be satisfied. First, there must be sufficient evidence that the offer was communicated; that the party was adequately notified of the terms of the agreement. Second, the party must have taken action that is sufficient to indicate assent. The burden is on the party seeking to enforce arbitration to show that the term was communicated and accepted.

Consumer Arbitration Agreements: 4.4.2.1 General

Implied assent does not apply unless the party attempting to enforce the arbitration clause demonstrates that the other party received actual or constructive notice of the arbitration clause.128 Courts look at two factors when determining whether notice was sufficient: whether notice of the arbitration clause was delivered to the consumer or worker, and whether the nature of the notice was sufficient to make an average person aware that they would become bound by the clause through the conduct alleged to constitute assent.

Consumer Arbitration Agreements: 4.4.2.3 Proof of Notice’s Delivery

When the consumer or worker resisting arbitration alleges never having received notice of an arbitration requirement, the party seeking to enforce the arbitration agreement based on implied assent bears the burden of proving sufficient delivery of notice of the arbitration terms.141 When the facts are in dispute, the worker or consumer may be entitled to a jury trial.142

Consumer Arbitration Agreements: 4.4.2.4 Notice Must Be Conspicuous

The party seeking to enforce an arbitration clause must demonstrate not only that the notice was received, but that the form of the notice was sufficient to make an average person aware that they would become bound by the clause.158 While notice sent via email is not necessarily ineffective, courts have refused to enforce arbitration agreements imposed via email when the arbitration clause was downplayed or easy to miss.159

Consumer Arbitration Agreements: 4.4.3.1 General

Even if the party seeking to enforce arbitration can demonstrate that the offer of arbitration was received, there is no assent unless the other party signifies acceptance. The question of what type of action (or inaction) is sufficient to manifest assent must be resolved on a fact-specific basis.

Consumer Arbitration Agreements: 4.4.3.2 Continued Use of Card or Continued Employment

In some states arbitration clauses imposed unilaterally on card holders through the sending of bill stuffers are invalid as a matter of law, regardless of whether the card holder continued to use the card.172 As one federal court analyzed the situation, under the general law of contracts “an offeror has no power to cause the silence of the offeree to operate as an acceptance when the offeree does not intend it to do so.”173

Consumer Arbitration Agreements: 4.4.3.4 Contract Performance As Acceptance

Performance under the contract can manifest intent to be bound by its terms.183 Courts have enforced arbitration clauses contained in nursing home admission contracts, despite the failure of a nursing home representative to sign the admission contract, when the nursing home indicated its assent by admitting the resident and performing the contract terms.184 In a case in which this doctrine bound the business, the Alabama Supreme Court found that the business accepted an amendment sharply limitin

Consumer Arbitration Agreements: 4.5.3 Company Delivers Product But Claims Transaction Not Final

Sellers often argue that an arbitration agreement has been formed when a product is delivered to the consumer and there is a notice that the purchase is not final unless the consumer accepts the terms of the purchase included inside the product’s box. The sellers characterize the transaction as unconsummated until the buyer reviews the product and the terms of the sale, and accepts the product. The sellers argue that, if the terms are not agreeable, the consumer should return the product.

Consumer Arbitration Agreements: 4.5.4.1 Change-in-Terms Provisions Do Not Allow the Addition of an Arbitration Clause

Credit card agreements may contain a provision allowing the card issuer to change the terms of the agreement (but not to add a new term): for example, to increase the interest rate or other fees over time. Card issuers use such provisions to justify sending consumers an arbitration agreement as part of a bill stuffer, arguing that the arbitration agreement is just another change in terms.

Consumer Arbitration Agreements: 4.5.4.3 Delaware Statute Seeks to Allow Addition of New Terms

A Delaware statute attempts to make any added or changed terms found in a bill stuffer binding.214 The statute states that banks can amend their agreements “in any respect” whether the change was originally contemplated by the parties or is integral to their relationship, as long as the agreement does not otherwise provide. New terms may be added. It explicitly allows the addition of an arbitration requirement or “other matters of any kind whatsoever.”