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Customer declines initialing contract where required
November 1 2022
Customer declines initialing contract where required
          We use the K&K Residential All in One.  That contract calls for the customer to sign at the end but also initial in several places.  Our customer didn’t initial, and instead wrote “no-decline”. How do you think we should handle this?
          There are several paragraphs that call for the customer to initial that the provision was read.  While you would expect that a signature at the end of the document [or on front with appropriate language to read the other pages] would be sufficient to establish that the customer read the entire agreement, that’s not always the case.  It’s not the case when there is a specific statute that requires a separate acknowledgement by initial or signature, or when a statute calls for a provision to be “conspicuous” without detailing exactly what is entailed, such as different size font, capitalization, color or placement. 
          The Kirschenbaum Contracts™ are drafted after careful research in each state to determine contract requirements.  These requirements involve consumer contracts as well as commercial contracts; they involve security contracts, fire alarm contracts and al the other contracts K&K offers on its website
          If there is a statute that requires the initial or separate signature then you need to comply and insist on your customer’s compliance.  If K&K uses the initial or signature requirement to satisfy the “conspicuous” standard then failure to obtain the acknowledgement by initial or signature is not fatal to the enforcing the provision. 
          However in your scenario the customer did more than simply forget or decline to initial the provisions.  By writing “no-decline” in the place calling for an initial I think your customer could argue, successfully, that he essentially crossed out the provision.  In other words, the customer was not just refusing the acknowledge the provision, the customer was signifying that the provision was not acceptable. 
          Since the provisions calling for an acknowledgement by initial or signature are essential provisions, provisions that you should find or will find most important in the contract, you should not proceed with the customer.  You should consider the entire provisions deleted, and that clearly is not something you should be prepared to accept. 
          Join the Concierge Program and get one free half hour each month which you can use to have me chat with the customer, before you walk away. 

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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301