Hear Ye! Hear Ye! I am inquiring for TheHeadPro

[BarryMCokiner]

we are in Flori-Duh and he bought a car....

in Missouri off of eBay for a significant amount of moolah. When he took receipt of the car it didn't run, THP (TheHeadPro) changed the battery, the next day the car again would not start. The passenger side door handle was missing. I suggested he call the BetterBusinessBureau and he finally did after much prodding by me. Basically the car dealers held him hostage and then to take the car back they charged him $2K.

I am well aware of the "caveat emptor" part of eBay but the vehicle was advertised as "excellent, working order" Once the dealership was aware of the BBB getting involved they agreed to refund THP his money but part of the deal was for THP to call BBB back and pretty much say he "jumped the gun" and made the report due to being upset. The call to BBB was after a call to the local area's Sheriffs Office.

Today I read a FAX from the company again stating that no income will be coming his (THP)s way until the BBB is notified and is told the original 2 reports now were fictitious. So now THP has to call the BBB again to say he "jumped the gun" prior to the car company releasing THP's money yet again.

For your edification. THP is a real nice guy who does not have a mean streak in what this issue would take to get resolved. I am a retired police officer and had the Sheriff's Office ready to pounce on the auto dealer but THP didn't want to risk getting them in trouble and he also thought if the cops were involved he would never get his money back.

He has given me the okay to offer a full 3-day weekend of FREE Golf along w/a cart for a 4some in order for this case be solved and THP is helped in getting his money back. So whom ever the barrister is that handles these calls please keep the FREE Golf and CART for you and 3 of your friends for the help. I can see that this has been a big stressor on THP and he won't let me offer my help in the way I would.

We are in Citrus County, Florida about 1.10 hours from both Tampa and Orlando (Northeast and Northwest respectively) So please send me a PM so we as a collective can help THP because once you get to know him you'll really like him. Me? I am an a-hole no holds barred, straight forward guy. Just give me a PM and I'll provide you THP's cell number and a number to the CountryClub. Here we play in 3 hours and that is in the winter which is our busy season. Yesterday it was 84º and today 87º so hopefully you are in the Northeast and are tiring of shoveling snow and you will be able to lend a hand.

Many thanks

[arkstorm]

Let me see if I got the facts straight:

 

- Buyer purchased a car on eBay from an out-of-state seller.

- Car was delivered, but not in the condition described by Seller in the online auction.

- Buyer wants to return the car for the purchase price but Seller wants $2k for his trouble.

- Buyer reports seller to the BBB.

- Seller offers to return Buyer's purchase $$$ only if he recants his report to the BBB.

 

The short answer is Buyer is in the right. Here's the analysis:

 

Chapter I. Contract Law

 

An eBay auction is a contract (a legally enforceable promise). Upon close of the auction, if certain conditions are met (e.g. reserve price met) a (bilateral) contract exists in which the seller promises to sell the item and the winning bidder promises to buy. Thus, contract law should be applied to determine the outcome of this matter.

 

However, there is a competing body of law called Sales Law which sometimes interacts poorly with contract law, as this case will demonstrate. The law of sales controls issues such as implied warranties and risk of loss.

 

The auction closed, with a high enough bid to complete the transition from auction to contract. When the hammer falls, both parties have made binding promises, which if breached may be enforceable by law. Assumingly, Buyer made sufficient payment. hence his duty to perform has been completed. Also, Seller made delivery, thus his duty to perform has been completed.

 

But not so fast. The seller's duty to perform entails delivery of conforming goods. “Conforming goods”, in this case, means a car in excellent condition. Failure to furnish the buyer with said conforming goods constitutes a breach.

 

Let's not get caught up in the fact that "excellent" is a subjective value because if the door handles are missing and the engine won't run, it is unlikely that by any measure of reasonableness, the car was excellent.

 

Thus, by failing to tender conforming goods the seller committed a breach of contract.

 

However, under contract law, Buyer may not immediately recover damages for a breach of contract without giving the seller an opportunity to "cure" the defect in the tendered goods. (unless, of course, time is of the essence to the contract, after which time elapses, breach is immediately actionable.)

 

Also, the breach must be "material" in its nature.

 

Delivering an "excellent" car sans running engine and door handle would most likely constitute a material breach. But since this is not a time is of the essence type transaction, Buyer should allow Seller a reasonable amount of time to cure the defect, i.e. repair the jalopy.

 

From your description, it seems clear that the seller opted not to cure the defect, but to return the buyer’s purchase $$$ less $2k.

 

Not good enough.

 

Since remedies of contract law attempt to place parties in as good a position as if the contract had been performed, a loss of $2k is unacceptable.

 

However, the down side of the coin is that, under contract law, the aggrieved party does have a duty to mitigate the damages. Luckily, the downside here is that mitigation of damages would merely entail the buyer purchasing a similar car in excellent condition at the best price possible.

 

The true measure of recovery should be the full purchase amount, in addition to the difference between the mitigation price and the contract price (only if the mitigation price is greater).

 

Thus, under contract theory, our Buyer is entitled to all of his money back.

 

Chapter II. The Law of Sales

 

Just when our hero is about to slam the (contracts) book on this sleazy seller, Seller has one more trick up his sleeve. The Chimera to contract law’s Bellerophon is the law of sales.

 

Assuming our Seller included the terms “AS-IS” or “With All Faults” in his listing, as so many purveyors of used cars are automatically programmed to do, Seller is going to claim an absence of warranty of merchantability as a defense to our hero’s contract claim.

 

But let me spoil the ending—Seller will lose.

 

The terms quoted above are commonly used by sellers to disclaim the warranty of merchantability, a/k/a warranty of fitness for an ordinary purpose.

 

You see this stuff at car dealerships all the time and you probable don’t even know what it means. So here goes: disclaiming said warranty is a way for a seller to ensure that if the goods do not function properly, you will not pursue him for liability as to such.

 

This is not always insidious. For example, I just sold a car through a private party sale, and I made my buyer sign a disclaimer of warranty form because, hey, I’m not in the business of fixing cars. I owned this car, but now he does, and if it goes bad on him I don’t want him looking to me to repair it just because I was the previous owner.

 

My duty, however, is to not make any false representations. E.g. If I told my buyer that the car runs great, but I managed to affirmatively hide a known flaw from his discovery, I may still be held liable if upon reasonable inspection the known flaw would not be found. Thus, a seller has a duty to disclose and a buyer has a duty to inspect.

 

So back to our story as to Seller’s duty to disclose, it seems likely he failed in that duty. As stated above, a car that doesn’t run and is missing a door handle is unlikely to be considered “excellent” by any reasonable observer. Seller failed to disclose some defects that were either known to him, or should have been known to him.

 

Buyer, however, cannot be said to have failed in his duty to inspect, because he conducted an inspection at the earliest practicable point in the transaction, I.e. upon delivery.

 

Thus, any potential defense by Seller based on sales law is a loser.

 

Chapter III. Extortion

 

But now there’s the problem with this demand that Buyer recant his claim to the BBB. Interestingly enough, even if Buyer did promise to do so, Seller cannot enforce that promise as a contract in exchange for return of Buyer’s money. Reason being, for a valid contract to exist, there must be a bargained for exchange, I.e. a promise in exchange for valuable consideration.

 

As the analysis above demonstrates, Seller has a pre-existing duty to return Buyer’s money due to his material breach of contract. Thus, in exchange for his promise to recant the story to the BBB, Buyer really is merely receiving what’s already legally owed to him. Seller is thus not offering anything of valuable consideration.

 

Thus, Buyer’s promise to recant is not enforceable by Seller. Seller must still return Buyer’s money and may not extort the recantation by withholding Buyer’s refund.

 

Now, the law is clear. But recovering on this claim is another story. Since you are dealing with two non-contiguous jurisdictions it may be tough to drag this seller into a Florida court. Tough but not impossible.

 

Best thing is to get a lawyer to handle this matter for you.

 

Okay, now that I feel like I just sat for the bar exam again, I wish you the best of luck.

 

Ooh, and one more thing...as for your offer of free golf in exchange for anyone who will help you with this...That's called a "unilateral contract", and that's a whole other story. But I require no reward for sharing my thoughts. I just do this for Karma. Maybe if I live right, one day it will be 85 in March in Philly too and I'll also get to golf. Common Karma, hook me up, I've been so good.

 

Regards,

[tpariff]

You did all that for Karma? Is your name Earl? :) :) :D

[BJL]

in Missouri off of eBay for a significant amount of moolah. When he took receipt of the car it didn't run, THP (TheHeadPro) changed the battery, the next day the car again would not start. The passenger side door handle was missing. I suggested he call the BetterBusinessBureau and he finally did after much prodding by me. Basically the car dealers held him hostage and then to take the car back they charged him $2K.

 

I am well aware of the "caveat emptor" part of eBay but the vehicle was advertised as "excellent, working order" Once the dealership was aware of the BBB getting involved they agreed to refund THP his money but part of the deal was for THP to call BBB back and pretty much say he "jumped the gun" and made the report due to being upset. The call to BBB was after a call to the local area's Sheriffs Office.

 

Today I read a FAX from the company again stating that no income will be coming his (THP)s way until the BBB is notified and is told the original 2 reports now were fictitious. So now THP has to call the BBB again to say he "jumped the gun" prior to the car company releasing THP's money yet again.

 

For your edification. THP is a real nice guy who does not have a mean streak in what this issue would take to get resolved. I am a retired police officer and had the Sheriff's Office ready to pounce on the auto dealer but THP didn't want to risk getting them in trouble and he also thought if the cops were involved he would never get his money back.

 

He has given me the okay to offer a full 3-day weekend of FREE Golf along w/a cart for a 4some in order for this case be solved and THP is helped in getting his money back. So whom ever the barrister is that handles these calls please keep the FREE Golf and CART for you and 3 of your friends for the help. I can see that this has been a big stressor on THP and he won't let me offer my help in the way I would.

 

We are in Citrus County, Florida about 1.10 hours from both Tampa and Orlando (Northeast and Northwest respectively) So please send me a PM so we as a collective can help THP because once you get to know him you'll really like him. Me? I am an a-hole no holds barred, straight forward guy. Just give me a PM and I'll provide you THP's cell number and a number to the CountryClub. Here we play in 3 hours and that is in the winter which is our busy season. Yesterday it was 84º and today 87º so hopefully you are in the Northeast and are tiring of shoveling snow and you will be able to lend a hand.

 

Many thanks

 

 

 

Did the car dealer refund all of THP's $$$??? If not, send me a PM.

 

BJL