What Exactly is a Form 4-T?
A Form 4-T is a statutory form to be used when any one of the material terms of a contract or agreement subject to the Statute of Frauds has been removed, altered or not included in the written contract. Most likely the Form 4-T will be used when, for example, a contract in writing has been modified orally by agreement of the parties. In such cases the statute of frauds would bar enforcement of the modification unless it is documented in writing as or with a derivative of the original contract; i.e. an amendment or modification agreement. Practically, although the statute of frauds does not require particular statutory formalities of such modification or amendment, if you are not willing to have a court settle the issue in favor of whichever party brings the issue, you should reduce the oral amendment/modification to writing and file it with the court to cut off the other side’s claims .
The form is intended to notify the court clerk and staff that you are attaching an amendment (or modification) to an agreement that the court reviewed and entered an order on. The Form 4-T attaches an entirely new document to the original pleadings, whereas the Form 4-G focuses on the amended pleading itself and attaches it as an exhibit. In many courts and for many judges, particularly in larger jurisdictions, the clerks and judges have less time to know exactly what is being amended or modified; therefore the clerks do not necessarily know if the clerical duties associated with filing and retaining filed documents such as a 4-G amendment will retain all amendments made to pleadings to date. The Form 4-T is another attempt to make the process clear to the clerks to properly assign the filing fee if one is required, and to ensure that each successive pleading has incorporated every derivative of the original one.
When You Should File a Form 4-T
In some respects, it is easier to determine when to use a Form 4-T than to define all of the ways in which it may be used. When a contract needs to be modified or amended and the contract does not have its own amendment agreement fixture, the Form 4-T is available for use. It is available for use at any time. In particular, it is a good choice for modifying or amending the following:
- (1) any purchase agreement
- (2) any sale agreement,
- (3) any ground lease
- (4) any loan agreement or promissory note,
- (5) any easement agreement,
- (6) any mortgage or deed of trust,
- (7) any joint venture agreement,
- (8) any development agreement,
- (9) any property owners association agreement,
- (10) a Property Management Agreement, and
- (11) any other agreement that generally regulates the rights and duties of the parties with respect to real estate.
The Form 4-T can be used to supplement another contract, bring in a person that will be a party to the agreement and/or modify an existing agreement. Because the Form 4-T first introduces changes to the agreement before listing all the new language, it allows you more control over how the modified contract forms. It can be modified subsequent to the Form 4-T becoming effective, as many times amendment is required in various places throughout the contract. In general, if a contract or agreement is not automatically modified if it is recorded, modifying the contract is best done using the Form 4-T, unless of course, there is an attachment or addendum that modifies it.
Finally, the use of the Form 4-T, rather than drafting language into a contract, can allow for a contract to be more easily read. If too many modification or amendment events are included within one contract, it can make it hard to read, as there may be too many cross references and not enough context to analyze the agreement.
Essential Elements of a Form 4-T Amendment
The Form 4-T outline provides the requirements for a contract amendment to be valid, assuming the amendment is not signed by the parties. The contracting parties may agree to other provisions, but those provisions must reflect the parties’ intent to be bound by the agreement. If the parties use the Form 4-T face plate, the offer letter and, if necessary the General Conditions of Contract, that agreement would not need to materially differ from any modified agreement.
The first component is a description of the agreement. This serves to identify the agreement which is being modified or amended. If the agreement is an amendment to an earlier amendment, the amendment would need to describe the agreement which is the subject of the amendment. Sometimes it is helpful to describe the agreement which is being amended in the body of the amendment. Identifying the subject agreement may help avoid any confusion as to which agreement is being modified or changed.
The second component is the status of the amendment. This identifies that the amendment actually modifies the subject agreement and describes whether the original agreement remains in full force and effect or whether the amended agreement now is the entire agreement between the parties.
The third component is the recitation of the amendment or change to the original agreement. In some cases, such as with construction contracts, copies of plans or drawings may attach to the amendment. The amendment should describe the exhibits which attach to the amendment.
The fourth and final component is describing the Order of Precedence. This may also be described in the General Conditions of Contract. The Order of Precedence may state that the Order of Precedence is determined by this hierarchy: primary contract, prime agreement, job order, approved proposal, Certificate of Insurance, or such other documents that the parties intend to be binding on them.
How to Fill Out a Form 4-T
Completing Form 4-T is relatively simple when you break it down. This Section will describe how to fill out Form 4-T, and it will give you the tools to avoid the primary traps for the unwary.
Step 1 – Fill in information about the contract
By information about the contract, I mean the title to the contract that the form applies to. This will presumably be indicated in the subject line of the approval from the Board. If the contract number was provided in the subject line, enter that number.
Step 2 – Provide the revised language that you would like to amend into the contract
The easiest way to accomplish this step is to cut and paste from the text of the contract . I strongly recommend that you consult the Board’s order to determine whether or not you need to restate any sections of the contract.
Step 3 – Fill out the signatory blocks at the bottom of the form.
Section II – I won’t go much in into detail for the members’ section. This is the section that the member will use to agree to the changes in the contract. But if there is more than one member taking over, and that is rare, then you will need to add extra signature pages.
Section III – If there is a signatory page for each company taking over the contract, then you will also need to add additional pages to show the corporate affiliations of the operator(s).
Impact and Implications of a Form 4-T
Employers should be aware of the potential legal implications and pitfalls in amending contracts using the Form 4-T. In particular, it is important that the amended contract, if implemented, does not result in any detriment to the employee for which the employer no longer has a legitimate business need. If an employer believes that a revised contract may legitimately be in the employer’s interests, then the employer may write up the new contact. However, the latter should not be done if it introduces a potential legal liability for the employer. It is possibly in the interest of an employer to have a "right to assign" clause in a contract so that the company can deploy an employee or give effect to an intra-group transfer. In some jurisdictions it may be beneficial to have the employee explicitly agree to such assignment as part of their conditions of employment, rather than rely on any statutory power of assignment.
Form 4-T modifies an existing contract and cannot be used to make a contract "where none exists". Therefore, if an employee’s employment has been terminated, or they have resigned, at the time the form is signed, the Form 4-T cannot be used. The status of whether a contract can be varied or not depends on what law applies to the contract. This is particularly relevant if the Form 4-T is being used to modify an existing overseas contract, entered into before the Act was in force. If the relevant overseas law prohibits variation of such contract, without the employee’s consent, then the Form 4-T may be unenforceable; this may apply to a contract of employment or a contract to perform other services.
Employers should consider having a legal review of any contract which has been varied or to which the Form 4-T applies.
In a situation where employers do not agree with an employee on the terms of the Form 4-T, the employer can terminate the employee’s services under the old contract and offer to re-engage them on the new terms. In practice, employers often find this difficult to do as employees tend to object to working on different terms for the same job. Accordingly, this approach should only be considered if absolutely necessary and only after obtaining legal advice.
The main areas of dispute with Form 4-T contracts and amendments are on minimum notice periods, the application of the Employment Act and statutory minimums contained in it, entitlements upon termination, leave, and redemption/reimbursement clauses.
Common Form 4-T Questions and Answers
When do I have to file the Form 4-T?
The requirement to file the Form 4-T arises when you file a Product Registration application for contracts that were executed on or after December 1, 2006, and that contain greater than a 1-year term. You may voluntarily file the Form 4-T for contracts that do not otherwise trigger the requirement.
Where do I file the Form 4-T?
You may file the Form 4-T on Connecticut Secretary of the State’s online licensing application portal, at: http://sots.ct.gov/sots/LicensesandPermits/OnlineLicensing.aspx. The form is called "Notice of Amendment to a Contract Appreciably Increasing Any Direct Assessment or Total Assessment Charges."
Are the filing fees the same as for a Product Registration application?
No. The filing fees for the Form 4-T are: $225 for a non-dealer and $125 for a dealer; however , if you file both the Form 4-T and the Product Registration application at the same time, only one fee for both applications will be assessed.
Does filing the Form 4-T require an opinion of the chief legal officer of the issuer, as required for the Product Registration application?
No. An opinion is not required unless it is also filed with the Product Registration application.
Is the Form 4-T form self-explanatory?
Yes. The form contains additional instructions for completing the form.
Will the Federal Trade Commission ("FTC") guidelines be considered when reviewing the filing?
No. The Insurance Commissioner does not look to the FTC guidelines to determine whether a contract is "substantially similar."