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A great summation of how things work over there across the pond. But, if you go back to the first 2 or 3 paragraphs, your explanation did cite quite a few general ambiguities, which were somewhat consistent with what I said in the first place i.e .. whether or not such obligations exist, misrepresentations of product description and so on. The 5 bullet points you listed are normally accurate. But, there's no indication that any of these 5 point were not adhered to in the sale. In fact, it seems that they were all met. The issue centers around the alleged assurances made by the seller, during the course of a telephone conversation between the seller and the OP . . as well as the interpretations of those assurances by the OP. That's why the documentation (paper trail) is critical.
Originally Posted by Phil in London
@ Patrick2 - I regret the rather pathetic posing and swearing coming back; in any case, here are some hints from a less emotional perspective:
- in contract law, "a verbal contract??" counts as much as a contract that is documented by deed. And, believe it or not, oral misrepresentations that were made when a contract is concluded can form the basis for claims under misrepresentation laws, unless e.g. an exclusion clause or parole evidence rule operates to the contrary.
- 'He said, she said' can be an issue of evidence; but enforcement is to be differentiated both under common law and in civil law jurisdictions from whether or not an obligation exists. Evidence may be extractable in various ways, who knows if there was a witness to the oral statements, or maybe there is a transcript of the conversation by the buyer, hints of the conversation can be found in emails, etc. Modern media has become the nightmare of fraudsters who rely on denying what they stated based on lack of evidence. And again, all this is independent of whether an obligation exists or not.
- Quite tailored to avoid complicated evidence procedures, consumer protection laws here in Europe go indeed rather far in terms of protecting people in so called 'distance contracts' (see section 6 of http://ec.europa.eu/justice/consumer...uidance_en.pdf). If the seller runs an online business, then a consumer can send back the received goods within a specified period of time, even if they are fully in accordance with all representations made. All credit card companies follow the distance selling regulations in Europe, and so getting a refund if the goods are in fact sent back is the easiest thing in the world. It is therefore true that in the UK a comparable case would be 'cut and dry' (albeit not for reasons of the oral misrepresentation, since the right to rescind the contract exists under EU law irrespective of whether a misrepresentation was actually made or not).
- Finally, even if consumer protection in the US does not go as far as in Europe, there seems to be an implied warranty of merchantability, which would prevent that a seller which sells a guitar as new (or as "from 2013 with plastic protection still on") can deliver a faulty wrack. While I am not trained in US law, I believe such implied warranty is provided by Art 2 UCC, which prescribes that goods sold must conform to the following legal requirements, irrespective of oral assurances made:
@ The goods must conform to the standards of the trade as applicable to the contract for sale.
@ They must be fit for the purposes such goods are ordinarily used, even if the buyer ordered them for use otherwise.
@ They must be uniform as to quality and quantity, within tolerances of the contract for sale.
@ They must be packed and labeled per the contract for sale.
@ They must meet the specifications on the package labels, even if not so specified by the contract for sale.
If that is right, then what we have here is not a question of evidence of oral statements made, as you assumed, but of conformance of delivered goods with the UCC, which is an entirely different issue.
- I take your comment of "the country that enabled you and the rest of your family to continue on with a free life style" and your apparent aggressive (narcissistic?) behaviour when it comes to 'national issues' as a further proof of my theory that US fundamentalism is in fact quite comparable to Taliban fundamentalism. While the irrational believe focusses on another dogma, the pattern appears to be very similar
The norm for the sale of goods here in the US, is that all sales are final unless otherwise stated, and if stated, there needs to be clarity in the return process and limitations. Some retail shops will not post anything, then refuse a refund or exchange. That's been challenged and often times the decision favored the buyer. So, retail shops that will not accept returns now are encouraged to openly post that. Other shops will only accept returns for store credit. Other retail stores, such as the very large department stores are extremely liberal. They will take anything back in an effort to demonstrate a sense of customer intimacy that will encourage loyalty to their business. That's the way we let the markets decide. There are indeed laws and regulations to protect the consumer. But, they are also there to protect to seller as well. One of the people posting here said he'd never buy from EDDIE'S based upon what the OP is going through. Stores like Wildwood Guitars have people who won't buy anywhere else . . because of the customer courtesies and intimacies extended to them by the store. That's the way we let the markets decide. We do have laws, as I said . . but, we also have a system that says the burdon of proof is incumbent upon and the responsibility of those who bring the charges . . not those who defend themselves from them. Over here, it's innocent until proven guilty . . even in such slight charges as misprepresentation of goods sold.
There needs to be a paper trail. Otherwise, the OP could have falsely claimed that he was told if he found minor faults with the guitar, the shop owner said he could keep the guitar and he would be refunded 50% of his purchase price. The buyer would be free to make any claim he could make up.
Go back to post #32, where the OP indicated that he was aware of the store's no refund policy. That's indisputable in any court of law . . on this side of the pond. "Let the buyer beware"
Then, go on to post #33 where Flyin Brian also mentioned the absolute need for a paper trail of some sort.
With regard to my harsh response to Archtop's uncalled for pejorative swipe and the USA, it's not the first, or the secon, or the third. I highly doubt it will be that last. Frankly, I'm sick of it. I have a great deal of respect and admiration for the UK . . and well as a great fondness for it. Even though I don't agree with all of its policies and its philosophical approach to governance . . I've never said a single disparraging thing about the UK . . because I recognize the the UK is one of The United States of America's greatest friends and one of our strongest allies. I'd never even think of shitting on such a relationship and such loyalties . . and it pisses me off to no end that I don't . . that we the USA citizens here on this forum don't get equally considerate treatment from thr likes of Archtop and from you. If Archtop doesn't like the way the owner of a pub there in the UK chooses to run their establishment, he's fee to go and have a pint elsewhere. But, he's not free to go about trashing the pub and it's owner in an open venue.
As regarding you comment equating what you call "US fundamentalism" to Taliban fundamentalism . . that's just such an utterly stupid and insulting statement I won't even respond to it beyond calling it out as such . . and saying it might be expected from archtop . . but, my perseption of your character and intellect was a little higher than it is of Archtop's. I'm disappointed in myself for that poor judgement.
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01-22-2015 04:31 PM
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See Patrick, there are two issues here. One of them is what I would call proportionality. Quite frankly, there is almost nothing in the world that could lead me to let out such personal insults as you did in your post relating to Archtop. Maybe in entirely extreme situations of social stress, connected with fear and risk of personal destruction, who knows. But a comment like from Archtop in a forum where we discuss silly little issues like buying guitars, or making claims if there are quality issues - how on Earth could that trigger such a reaction and foul language from anybody who holds self-esteem and considers himself a respectable person? Quite frankly, it degrades you personally, this lack of control and flaring anger, using expressions which on a highschool yard would already be seen as uncool. An entirely disproportional response to a post which simply made a few statements on what the law would provide here in Europe, maybe some erroneous assumptions as to US law, and maybe spiked with a bit of teasing relating to the more blunt 'buyer beware' culture in the US. A person who loses control that profoundly for such little things cannot be taken seriously in my world.
The other issue is your sensitivity as to issues like 'the USA', its 'friends and allies', etc. You might not realise it, but I have never spoken of any such issues. You do not represent 'the USA' for me. Nor do US fundamentalists, to which I referred to. To explain my comparison: In my experience, a typical response pattern of fundamentalist people is that when they perceive something as an insult to their highest-all, their believe in god, their 'country' or whatever thing they consider as holy, then the result can be uncontrolled anger, triggering a very disproportionate reaction. The nationalist is not different to the religious fanatic in this aspect; when 'the flag', the 'citizens', 'us Americans', are deemed to be 'insulted', then the response might even be physical violence with the types of yours. In that sense, I maintain that there is similarity in your reaction as to how a religious fanatic reacts when they think somebody has insulted their religious values. And the ironic thing in this context is very often that nobody even considers to insult 'the USA', 'all Americans', or 'Allah', or whatever the holy something might be. Its all in the mind of the overly tense person, driven by cliches and a sensitivity which is difficult to understand for the innocent bystander, when the uncontrolled rage flames up.
Patrick, quite clearly there is no balance between trigger and response in your behaviour. Thats what makes this forum unpleasant, its as simple as that.
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From a legal perspective, with the caveat that I dont know much about US law, I still doubt that what you say is correct. Art 2-314 UCC states that, unless (expressly) excluded or modified, there is a warranty implied by operation of law that goods shall be merchantable (if the seller is a merchant). Merchantability includes that goods must 'pass without objection in the trade under the contract description'. To be 'merchantable', goods must therefore, so the interpretation of Art 2 UCC, "reasonably conform to an ordinary buyer's expectation". There are numerous examples of court cases in commentaries at hand, where quality issues quite similar to the ones discussed here gave reason to judgements against the seller - in the US.
You may reject the thought, but Art 2 UCC applies even if there is no paper trail at all, and even if there is no oral representation. This is because it is the law that proposes the standard, not the intention of the parties. As a result, if somebody sells a 2 years old, apparently unused guitar ("plastic still on scratchplate"), then seller automatically makes certain representations as to quality, irrespective of paper trail, oral negotiations etc. It is of course a question of valuation by knowledgeable people of trade if it is reasonable or not to expect an unused Gibson ES 175 from 2013, under the implied warranty, not to have faults as where described by the OP. This is where your expert knowledge would doubtlessly be of interest, should this discussion return to a more normal conversation.
As to 'all sales are final', this again misses the point. US law, like any other law known to me, provides as a remedy for breach of contract the possibility to terminate or cancel the agreement. In England, we call this 'acceptance of repudiation', which is what Archtop may have had in mind. The issue in this context is not whether the parties have contractually agreed upon the option to send goods back. Rather, buyer can maintain that the contract has been terminated by seller's breach in that seller delivered goods which did not conform to the implied warranty of reasonable quality (if one agrees that a breach has occurred, see above). The question under specific selling regulations will of course often be if a breach has occurred which is severe enough that it can justify such result, and depending on the jurisdiction and applicable law, buyer may often only be entitled to claim damages.Last edited by Phil in London; 01-22-2015 at 06:18 PM.
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Phil: I don't believe in proportionality in response, when I feel that me or my country are being attacked. If I get hit, I hit back twice as hard. There are people here who know that . . yet, they choose to hit. Therefore, I strike back with the intent of hitting them harder.
To your comment of . . . "A post which simply made a few statements on the law . . . . " Really Phil?? Did you miss the opening snide remark?? Just incase you did, here it is;
No he didn't.
Unless the U:S is a lawless place were business and corporations have completel legal control to screw the consumer (oh wait erm..) Are you really oblivious to what the (oh wait erm .. ) implied??
"Foul language not used in a highschool yard"?? Are you referring to my telling him to stop talking like a childish ass-hole?? If so, what the heck kind of a highschool yard did you play in?? I once told my priest that he was acting like an ass-hole. He just laughed . . and we're still best bud's.
You seem to readily jump in on such dust ups between myself and Archtop, and in the past Jabberwocky. Kinda like a big brother stepping in defending to ill behaved little brothers. You always seem very ready to chide me for what you interpret as overly harsh responses to them. Yet, I don't ever hear you scolding your little brothers for making the posts leading to the harsh responses. Why is that? Also, I've not asked to be "taken seriously in your world" . . what ever the hell that means.
Then, you go on to cite uncontrolled rage. Now, that's funny. I consider my response to Archtop to be nothing more than a verbal slap down. You, in your air of self righteous pomposity attempt to paint it as uncontrolled rage. My response was addressed to Archtop's snide remark in his post. You could have quite easily stayed out of it and minded your own business.
A response post from you clarifying the applicable law in the UK, as it realtes to incidents such as the OP is experiencing . . . that would have been a very welcomed and informative post. But, I'll not be dressed down by you for comments in a post that wasn't even aimed at you. Regarding my role in what you have hereby declared this forum to be, "unpleasant" . . you need to go back and review some of the posts made by your little brothers . . which they've repeatedly come out and apologized for. So, which is it that makes this place "unpleasant" in your eyes? The posts that purposely elicit a visceral response? Or the visceral response?
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Again . . there was an implied breach of contract . . not a proven breach of contract. There was no formal record of any language in any implied contract of sale. I'm saying that the seller could deny any and all of what the buyer is claiming the seller said and couldn't be proven wrong. The burden of proof is on the accuser, not the defendant. There really wasn't even any evidence of a formal contract of sale. There was verbal agreement. There was a stated selling price. It was agreed upon. The buyer paid the stated selling price. The seller sent him the guitar at the agreed upon price. That's all that can be stated as factual. All the rest is implied, but not proven. I fully believe that the OP did get the assurances he claims to have gotten. But, it can't be proven. The buyer as making claims against the seller that he has not way of proving. Why is this such a difficult thing to understand. Originally Posted by Phil in London
regarding to article 2 in UCC . . that the item "reasonably conforms to an ordinary buyer's expectation" where is there any proof of what the buyer's expectation actually is? It's a completely gray area and of course, open to a judges interpretation to the entire matter. But, any judge is going to take the seller position into consideration every bit as much as he would the buyer's. Having a paper trail of the agreed upon terms and conditions of the transaction is necessary, required and prudent.
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Just to close the loop from my side and to clarify - my reaction to this thread is not because I want to protect Archtop in the manner of a big brother or something like that. In fact I dont even know him, never met him etc. He quite likely is in no need of protection anyway. The reason I am writing all this is because your use of foul language is offensive. If not to the addressee, then at least to me. And yes, I have trouble to follow the transition from 'erm..' to 'you stupidly speak out of your ass'.
As to your legal considerations - it seems quite clear from what you say that the concept of a term implied by law into a sales contract is foreign to you. There was no talk of 'implied breach of contract', but of an implied _term_, which became part of the contract by operation of law. If you sell a guitar as a merchant, then this is a sales contract, and it does not matter what is documented in writing. And of course Art 2 UCC applies also to agreements which were made orally only. It sets the quality standard for seller's obligation to deliver the goods, and thus seller's discharge under the contract. The sentence 'all the rest is implied but not proven' is an example for that you constantly mix up matters of law with the question of factual proof, which is what people tend to do who are not familiar with legal concepts. On the same page, 'buyers actual expectation' is irrelevant, as is its proof, since Art 2 UCC implies an objective standard, which is benchmarked against a (presumed) reasonable buyer, not the actual buyer. Finally, the concept of 'innocent until proven guilty' stems from criminal law, and has little place in a discussion of civil law obligations. Yes, there is ultimately a question of proof whether the quality of what was delivered was in accordance with the standard set by Art 2 UCC. But this will usually be assessed by an independent factual expert of trade, and so the burden of proof is more a procedural aspect in this matter rather than anything else (should something like this ever go to court).
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To avoid further discussions on the legal issue, please read this: Commercial Law: Express and Implied Warranties Under the Uniform Commercial Code
To quote the writer: "The implied warranties created by the U.C.C. ended the old rule of caveat emptor-"Let the buyer beware." Implied warranties allows buyers to purchase goods and be confident that they meet certain minimum standards. The two implied warranties the U.C.C. creates are the warranty of "merchantability" of the goods being sold, and the warranty that the goods are "fit for a particular purpose."
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Originally Posted by Phil in London
Well this could indeed go to a small claims court. Then as I indicated, it's all really up to the judge to interpret any *implied* or *alleged* assurances the seller may or may not have given to the buyer. That's what this is all about. All that I and others are saying here, is an exchange of emails clearly stating the condition of the guitar and the mechanics of the transaction would be construed and accepted as a binding contract of sale beyond any contesting by either party. It's the business prudent thing to do.
Now, the one thing I did overlook, is . . how was the guitar actually advertised? If EDDIE'S advertised the guitar as being in brand new and un altered or undamaged condition, then I do believe the OP has a valid claim .. and one which a credit card company would defend him in. If the guitar was advertised as new, unused, unplayed . . and it arrived with the exceptions that the OP stated, all he'd need to do would be to provide a copy of the ad, and photos of the exceptions. Case closed. The ad would represent the paper trail.
Further, if a merchant sells a guitar to a customer, I see it as a sales transaction, an exchange of money and goods . . not a sales contract. There can't be a breach of contract, unless there is a contract. That's my position on the matter based upon an extensive history of business dealings. However, from a legal aspect, you've really peaked my interest in reasearching it further. I'll definitely do some research on it.
The annology of innocent until proven guilty was just that. An annology.
Regarding your being so highly offended by "you speak stupidly out of your ass", would you be less offended if I said "arse" or . . a** . . as some others do? Does the reference here on the forum to someone as being an ass-hat offend you any less that the term ass-hole?? C'mon man . . this ain't the gangsta rap kind of offensive foul language. It's pretty much mild street slang.
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Here's what glares out at me in the link you provided; Originally Posted by Phil in London
"When people use the word "warranty," they are typically referring to a specific kind of warranty that the U.C.C. calls an "express warranty." Express warranties are affirmative promises about the quality and features of the goods being sold.Claiming a watch is "waterproof to 250 feet," that a car gets "35 mpg on the highway," or that a brand of concrete "cures rock-hard in 5 minutes, no matter what the weather" are all examples of express warranties."
My entire point is, we have no idea what claim was made bythe seller to the buyer. Neither would any judge deciding this matter in a small claims court. Therefore, how could any express warranty apply?
The guitar was definitely delived to the buyer as both merchantable and fit for a particular purpose. If the guitars as advertised as perfectly flawless, and showed damage due to a dried out fret board causing the fret tangs to sprout, that's defititley a deceptive advertising matter and the buyer would be entitled to remedy.
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Well then, here we are again with cultural differences. I did not grow up with a silver spoon in my hand, so much for sure. But what you say is a bit like as if somebody urinates on the track in a public train station, and tells bystanders to either mind their own business or not to be too pussy-hearted about it.
As to the legal side - your assertion "Further, if a merchant sells a guitar to a customer, I see it as a sales transaction, an exchange of money and goods . . not a sales contract. There can't be a breach of contract, unless there is a contract" shows a complete ignorance to any legal concept of contract law. A 'sales transaction' is the equivalent of a 'sales contract', since the exchange of money and goods is based on an agreement between seller and buyer, and this agreement is called a contract. Title and property rights can also only pass from one to another if based on a contract. You dont need to take my word for this, no problem. But you will find out that any person with the most basic legal education will inform you that what you said is similar to "all we have is that the wind blows and the the sun sometimes shines, but there is no weather here".
PS: Here is a most basic introduction as to what is a contract: http://www.law.cornell.edu/wex/contract. You will see that any consensual agreement between two persons of legal capacity to provide each other with a benefit (e.g. 'Offeror: I give you the guitar if you give me 2.000$ - Acceptor: Agreed!') creates what is called 'a contract' in law.Last edited by Phil in London; 01-22-2015 at 08:35 PM.
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Patrick, now you are selling yourself short. The quote you make relates to EXPRESS warranties under the UCC. Go down further 3 paragraphs, and the article will enlighten you as to IMPLIED warranties under the UCC, which is what the whole argument here is all about. The IMPLIED warranty operates irrespective of what parties have expressly agreed upon. So there is no issue of proof what was agreed. As stated many times now, and also confirmed in the article, the IMPLIED warranty sets a minimum standard of quality that goods need to fulfil under a sales contract (or 'transaction'). The concrete standard will differ from case to case, as it is (inter alia) derived from the circumstances of the sale (e.g. advertising, description provided on website etc). The key question is: What can a reasonable consumer expect to receive, if a professional merchant sells a 2013 unused Gibson ES 175 with 'the plastic still on the pickguard'. Whatever the circumstances were in detail, it is, and that is my whole point, under this standard at least debatable that seller might be in breach of the IMPLIED warranty if "binding is cracked in half at every fret on the neck. Cutaway is checked and the truss rod is maxed out tight". Originally Posted by Patrick2
Is it a slam dunk case for the buyer that seller did not conform with the requirements of the IMPLIED term under Art 2 UCC? Certainly not. Is it a matter of proof what was agreed upon, with a 'sales transaction' not being a sales contract, and no standards applicable other than 'what can be proved to be explicitly agreed by the parties'? Certainly not either.Last edited by Phil in London; 01-22-2015 at 08:45 PM.
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Phil:
Firstly, I owe you a debt of gratitude. I absolutely love learning. Our *civil* argumemet over the merits of a verbal agreement absent of any proof of the spoken conditions of the sale, caused me to research it quite a bit. That helped me to understand the law much better, as opposed to how I interpretted it based upon it being loosly applied in the business world. It really was a fun bit of research.
I learned quite a bit. Some of which confirms much of what you state. But, some of which also confirm my uderstanding of the burden of proof being on the buyer, to show where he/she might have been misled. Here's a cut and past of a larger article on the matter. But, this is the portion of it which speaks to my understanding of needing the proof of what was guaranteed. I'll also link to the entire article.
Are Oral Contracts Enforceable?
By Stephanie Rabiner, Esq. on October 18, 2011 5:44 AM
Despite popular belief, oral contracts are enforceable. They usually are not in your best interests, and end in a "he said, she said" battle. But as long as there is enough evidence, a court will enforce an oral agreement.
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This is pretty much what I've been arguing all along
Here's the link;
http://blogs.findlaw.com/law_and_life/2011/10/are-oral-contracts-enforceable.html
Are Oral Contracts Enforceable?
By Stephanie Rabiner, Esq. on October 18, 2011 5:44 AM
Despite popular belief, oral contracts are enforceable. They usually are not in your best interests, and end in a "he said, she said" battle. But as long as there is enough evidence, a court will enforce an oral agreement.
However, there is one particular exception to this rule, and it's called the Statute of Frauds.
The centuries-old law is designed to prevent deceitful conduct when contracts have high stakes or long durations.
As adopted in most states, the Statute requires a written contract in the following situations:
- Real estate sales
- Real estate leases lasting longer than one year
- Transfers of property at the owner's death
- Agreements to pay another's debt
- Contracts that necessarily take longer than one year to complete
- Contracts that last longer than a party's life
- Contracts for over a certain amount of money (differs by state)
A court generally will not enforce oral contracts if they fall into one of these categories. There must be some sort of writing signed by both parties.
As expected, there are also exceptions to the Statute of Frauds. Even if an oral contract falls within its terms, it will still be enforced if:
- One party partially complied with its terms; or
- The plaintiff relied on the defendant's promise and suffered some detriment as a result.
Again, a plaintiff bears the burden of providing such evidence.
Contract law clearly doesn't favor oral contracts. They're difficult to prove, and often form the basis of fraud. So the next time you make an agreement, get it in writing.
Related Resources:
- Are there any advantages to putting a contract in writing? (FindLaw)
- Do All Construction Contracts Have to Be in Writing? (FindLaw)
- Oprah Pal Gayle King Sued by Orly the Matchmaker Over Free Dates (FindLaw's Celebrity Justice)
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Now, here's an even more interesting and educational read. But, I never really made it through th the end. Too long and irrelavent for me to maintain focus;
commercial transaction | economics :: Elements of the law of commercial transactions | Encyclopedia Britannica
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Pat, thanks for the links. Let me just add so much:
In law one differentiates between analysis of the existence of obligations, and their enforcement (with the latter often involving aspects of proof and evidence). Those two issues may be practically connected (see the blog you quote), but legally they are not. An obligation exists based on the contract made, and if it can't be proved, it still does exist. Which, for example, means that the debtor of the obligation can fulfil (eg pay) it, without having to follow gift rules, etc.
Maybe a reference to criminal law helps - if somebody deliberately cuts the throat of another person in a dark alley without having a valid defence and it can't be proven, he is still guilty of a crime, a murderer. And who knows, maybe tech helps to prove the facts decades later. The legal assessment of the facts under substantive criminal law is independent of this question of proof, he has always been a murderer, only the proof of it took longer. Equally, if somebody makes a promise against consideration, this creates an obligation under contract law. Whether it can be proven or not is another matter. Eg maybe somebody has overheard the conversation by chance, and one only finds this person at a later stage. His/her witness statement does not create an obligation of the committed party, it just provides evidence to an obligation established by contract earlier.
However, of course in practice oral contracts do create issues of proof, because parties are not interested in legal theory, but in being able to enforce obligations. This is why the law may step in and imply legal standards into contracts. Otherwise we would potentially need a 10 page contract signed each time we buy a pack of cigarettes. What I was trying to explain with respect to Art 2 UCC is that the implied term of warranty operates between seller and buyer even if only the bare existence of a 'sales transaction' can be 'proved'. Assume the parties say only: 'I sell you this guitar for 1000', 'agreed'. Then seller, if a merchant, owes, according to sec 2-314 UCC, a quality that is judged under the objective standard of what a reasonable customer can expect given the circumstances. And this even if neither of the two parties have ever heard of Art 2 UCC. The clause operates in law, so to say 'automatically', when a sales contract of under 5,000$ is concluded. No proof whatsoever required other than that the most basic guitar sales took place, with no paper trail etc.
What that means in a dispute (in practice): The court will usually ask a knowledgeable trade person who operates as amicus curiae for an opinion - at least that's the way it works with similar rules in jurisdictions in which I practiced. After inspecting what happened, a guy with your industry experience (but better manners ;-) will thus write an opinion stating 'in my expert judgement, a reasonable buyer who purchases a 2y old Gibson ES 175, which was indicated to never have been used, in a reputable guitar shop like Eddies, can reasonably expect under common industry practice that the guitar shall be free of material faults such as...' Or to the contrary, whatever the reasonable assessment may be.
Given the implication of the warranty by operation of law, in our case it is not relevant if the term I referred to can be proved by the parties, neither for the existence of it, nor for enforcement. The term is known and operates for the court by opening the relevant page of Art 2 UCC. What needs to be proven is whether the legal standard of the implied warranty has been complied with by seller or not. The question of burden of proof in such issues is more a procedural topic (meaning who has to pay the court's amicus); what matters is the personal assessment of the industry expert as to what common industry quality standards say about reasonably to be expected quality and flaws, and courts will in most cases follow such assessment.
Such, if the expert comes to the opinion that standards were breached materially (eg because the truss rod is broken, or the guitar's pickups have zero magnetism etc), then the contract will be judged as terminated by repudiation of seller, and the customer can send back the guitar and get his full purchase price (plus, potentially, damages), irrespective of what the shop's policy on returns may be.
Btw - A way to escape the operation of the implied warranty would be to expressly agree on an exclusion clause (eg "no warranty for common use or reasonable quality, buyer buys all instruments on an 'as is' basis"), but such clauses need to be brought to the express attention of the buyer - something which, believe it or not, seller has to prove :-)Last edited by Phil in London; 01-23-2015 at 05:09 AM.
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Well Phil, it now appears that I owe you second debt of gratitude. I'm grateful that you didn't tell me that your comments on this matter were based upon your understanding of law, as a practicing attorney. Had you done that, I'd have genuflected to your grater understanding of it than my own. Then, I would have never done all of the research I did to learn more about it. If you did mention somewhere in the past here on JGF that you are/were a practicing attorney, I missed it. If I was aware, I'd have never challenged you on it. But, I'm now better educated on it than I was previously . . and the research was fun. I also feel a bit silly that I hastily assumed you were expressing only opinions based upon business dealings, as I was doing. Apologies.
But, that aside, in my future dealings with sellers of guitars, or anything else for that matter, I will still insist on "having it in writing". :-)
Now, for a third matter . . for which I would be appreciative, I would prefer not being address as *Pat*. My preference is Patrick. It may seem trivial . . but, it's just a personal quirk for me. Thanks!
On another note, I would . . and I'm assuming that others would as well . . welcome further legal input from you, should the opportunity to do so present itself. Cheers!
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Uhhhhhh huhhhhh. Originally Posted by Phil in London
Don't understand, explain it to me like I am a 10 year old.
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Well, not a problem, Patrick; commercial sales law is far from being my specialty, my focus since decades is on regulation of financial markets, tax law and law related to financial transactions, with some insights in the differences between civil law and common law jurisdictions. But anyway, I dont want to bore you guys here, Broyale, let me know if you are blinking your left eye, so that I understand that you are making fun of me... (which would be more than reasonable)...
Last edited by Phil in London; 01-23-2015 at 07:53 PM.
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Not making fun of you, Phil. I really wanted you to explain that to me as a 10 year old. Originally Posted by Phil in London
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I doubt that Broyale was making fun of you. But, I'll let him speak for himself. But, suffice to say . . you can just imagine his and my eyes just develope a sort of glaze over . . as we read through your post. I had to read it through three times, before I was sure I understood what you were saying. Then, I read it a forth time .. just to be sure that I was sure of what I thought I was sure of. ??What?? Originally Posted by Phil in London
Last edited by Patrick2; 01-23-2015 at 11:21 PM.
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ok then, let me try like this:
If two people make a simple transaction, such as 'A sells guitar to B in exchange for B pays 1000 to A', then, from a legal perspective, there are actually quite a few things left open. When does delivery take place? Where? Who pays freight, cost of insurance? What happens if the goods are faulty? Under which conditions can a sale be undone? ... up to little things, such as 'which type of communication between buyer and seller has legal relevance'... etc... you get the picture. To bring this into a wider perspective, those questions are also relevant when you buy cigarettes or sports shoes, but of course with smaller sums of money and simpler goods involved.
So how do we specify the detailed obligations, when all that happens is that A says 'I offer this guitar for 1000' and B says 'ok'? One alternative is that a company prepares a document with 'general terms and conditions of contract', which will deal with all of those questions. And indeed thats how many companies work. E.g., when you purchase a train ticket, you will (often unconsciously) submit yourself to the T&Cs of the train company. Those T&Cs become part of the transportation contract between you and this company, if they are incorporated by agreement of the parties.
And that's where the problem comes in. Quite often, merchants do not understand, from a contract law perspective, what they need to do so that those T&Cs actually become part of the contract. They assume that if only they have T&Cs, then they are fine. Which, from a lawyer's perspective, is rather naive. Under UK law, in order to incorporate T&Cs into a contract with the customer, the company needs to make sure that the customer understands that T&Cs exist, knows where they can be found, and that the company expects to deal only based on their T&Cs, BEFORE the transaction is concluded. There are some rather complex details to this, which stem from various well known court judgements in the common law world, but the bottom line is: when you walk into a guitar store and take a guitar from the shelf, pay it and walk away with the guitar and a payment slip, without having been in their shop before, it can be rather questionable that the company has successfully incorporated their T&Cs into the sales contract that was just concluded. The same is of course true for the tobacco store, which in general will not even have any T&Cs prepared at all, given the simple nature of their transactions.
So what happens in cases where T&Cs do not operate? And what if the T&Cs of a company are grossly unfair and biased in the interest of the company? This is where the UCC comes in. The UCC provides standard rules for certain types of transactions, such as sales, leases, bank deposits, payments etc. If, for such contract types, the parties to the contract (A and B, buyer and seller, bank and customer, etc) have not agreed upon a framework of contract rules for all the various things that can happen in life, then the UCC provides for such rules.
However, the UCC goes a step further. In order to protect the consumer from unfair terms, it provides that some terms of the UCC are applicable in contracts, unless the parties have explicitly ruled out that they should do so. And, whats more, the UCC also prescribes that such ruling out only works if the exclusion clause has been properly brought to the consumers attention by seller. Some countries intend to restrict the freedom of contract even further, and provide mandatory requirements for certain types of contracts that cannot be amended, whatever the parties agree upon. Europe is specifically loaded with consumer protection requirements that are mandatorily applicable in sales transactions, irrespective of the parties intentions.
In the US, a provision that serves to protect the consumer in the above sense is Art 2-314 UCC, which provides an 'implied warranty' as to the quality of goods sold. 'Implied warranty' means that the law puts this clause 'automatically' into the contract between 2 parties, even if they have never heard of the existence of the UCC. The UCC requires in this context that if a thing with value under 5k$ is sold in the US, then the seller has to provide buyer with goods which are 'merchantable'. The adequacy of quality will be judged under accepted industry standards, depending on what you buy, where, and from whom, with the relevant standard being derived from what a reasonable buyer can reasonably expect to receive as merchantable product under the sales contract. According to Art 2-316 UCC, this rule can only be excluded from the contract if seller points out that this should be the case. However, it can be excluded, it is not a mandatory provision, as is often the case in Europe.
Lets check out what this means in practice, when one buys through the internet from a large guitar shop:
@ If you buy from a large guitar store, they will usually have T&Cs prepared that govern their dealings with buyers.
@ If you are an internet buyer, it may well be reasonably expected that you make yourself familiar with the T&Cs of the company, before buying a guitar. In most cases, the website will make sure that it is clear that the company only deals based on their T&Cs, and the T&Cs will be easily accessible to buyers in a special 'terms of trade' section.
@ Assume the T&Cs do not contain specific rules as to quality of goods (or, alternatively, there are no T&Cs available, or the T&Cs have not been properly incorporated into the contract): Then, under Art 2-314 UCC, the company 'automatically' owes a guitar of adequate quality (see above). This is so even if nothing has been mentioned between the parties on quality of the guitar, or what has been said was not documented. As a consequence, if e.g. a guitar with broken truss rod is delivered, then that would quite surely not comply and you can send the guitar back, even if the company has a 'no returns policy', and to the least you can require betterment, if not cancellation. On the other hand, if the guitar has a minimal scratch on the headstock, which can hardly be seen, that this would supposedly be judged by industry experts as 'normal course of trade', therefore no breach, no return or betterment.
@ Assume, alternatively, that the T&Cs are incorporated into the contract AND that they provide that all guitars are sold 'as is'. Such clause aims at the exclusion of the implied warranty of Art 2-314, and if the clause would work, then seller could send you a guitar with broken truss rod and it would be your problem ('buyer beware'). However, according to Art 2-316 UCC, such clause only has effect if it is 'conspicuous', in other words - if it has been brought to the specific attention of the customer before the sale. One example would be that there is a bottom line in every internet offering that states 'attention: all guitars are sold as is', which one can sometimes see in offerings of used guitars. If that is the case, then the broken truss rod indeed is your problem (unless the State in which you live does not allow 'as is' offerings). Alternatively, if no such explicit communication has happened, and the clause is hidden somewhere in a 100 page document of general T&Cs, then it will not operate. Meaning that in this case, the consumer can rely on the implied warranty of Art 2-314 UCC that the guitar will accord to what is considered by reasonable industry people as 'normal industry standard of merchantability'. And then you could send the guitar with the broken truss rod back, in the same sense as above.
@ Needless to add that any express reps and warranties provided bind the seller in addition to and irrespective of the above. And, buyer can't complain if a flaw has been explicitly described before the sale. These express dealings are valid also if only made orally. However, if the latter, then there may be issues of proof in a dispute, as Patrick has pointed out.
Here is a good summary as to how implied and express warranties and their exclusion works: http://www.mlmlaw.com/library/guides...s/undrstnd.htm
I hope this makes the matter clearer. Any questions - just let me know.
PS: Should any US attorney read these lines and see something that is incorrect, please make sure we all know. I am not an expert in US law, and the above is based on the assumption that what is standard contract practice in the UK on T&Cs is valid also in the US (which is a reasonable assumption, given that the contract law systems of both countries emerge from the UK common law, but - who knows).Last edited by Phil in London; 01-24-2015 at 08:09 AM.
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Thanks, Phil, for the explanation.
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So . . that's the short and simple version? Now you're really starting to sound like a "Philadelphia Lawyer".
If your typing skills are anything at all like mine . . then that took you a hell of a long time. Thank you for taking the time and making the effort to post that.
If this thread has done anything at all, after it was derailed . . it has served, and might continue to do so, as a guiding light for those who do the buy and sell thing over the inter net. It's a scary thing to put your faith in a guy or a business entity that you're not face to face with. I've got several medium-high end guitars that I'm looking to sell. But I won't list them on eBay . . and I won't do the pay pal thing . . unless it's the gift option. I just always believe that erring on the side of business prudence, even at the expense of losing a sale, is a wise practice. I know for sure how honorable, and honest I am. But, I'm always skeptical about those whom I don't know so well. Unfair double standard? Yeah . . probably. But, I'm cool with that.
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Just to add one point - the UCC is federal legislation. Implementation is being taken care of by State law. Which means that every buyer must do his/her own research about the laws where he/she lives. Alas, it does not get simpler through that, such is life.
And finally - relying on how the State takes care of one's rights if one has been careless can only be the last resort of one's activities. I fully agree with Patrick that a prudent buyer will, especially in distance selling transactions, always make enquiries as to the key points (frets, scratches, truss rod etc - we all know them). Before I buy, seller will get an email such as 'I would like to summarise the representations you gave with respect to guitar xyz: a) the truss rod is in good working order; b) frets have no signs of wear;... (etc, whatever it was that has been said).... Please confirm that these are your representations in selling xyz... '
So, before I buy, I expect seller to confirm his reps in writing, and also to confirm that the person I am dealing with has authority to make such reps. It's a bit formal, but keeps me feeling good, and also makes sure that I dont forget to ask something important.
A seller who refuses to follow this process is off my list, whatever nice guitar he has to sell.Last edited by Phil in London; 02-08-2015 at 06:11 AM.
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One slight correction
Phil has provided a very good, IMO, discussion of UCC, Article 2 "sales of goods" law but there is one slight correction needed. The Uniform Commercial Code, Art. 2, has been generally enacted in virtually every state of the Union (i.e the U.S., we're talking here). It is, however, technically, "state law" and not "federal law". So, for e.g. the New York State legislature took the report of the Uniform Commissioners on sales of goods, and probably enacted it without any significant variation. (States are, free to vary terms, but most do not do so, and in practice, a UCC Article 2 sales case decided in say, Oklahoma, may be cited, and followed in another jurisdiction, like New York.) There are standard compendiums of cases cited under various code provisions, and as noted, most are followed by other jurisdictions---otherwise, Eddie's of St. Louis might need to become expert in the law of New York, Californ., Illinois, etc. etc, the need for which would undermine certainty and uniformity. (Louisiana, with its system of law derived from the Code Napoleon, is a noteworthy exception on many legal matters, and it used to be the case that it was the prime e.g. of a non-Uniform Code jurisdiction.)
As a practical matter, maybe not much substantive difference...it does matter, that one doesn't automatically have recourse to a federal ct., absent some other ground of jurisdiction. One would have to proceed in a state ct., which most observers think, have less skilled and less smart, judges for most matters.
The U.S., unlike England, does not have a"unitary" system of gvt., which means that we have no concept of "parliamentary supremacy", but instead a system of divided powers of gvt., between states and local gvt. IN general, in the U.S., there are vastly more areas reserved to the various state goverments, and some observers have cited this as the states being a "laboratory for social policy"---commonly regarded as beneficial.
(Like Phil, I'm not a sales attorney specialist, or litigator, but the foregoing is a brief summary of some of what we learned as 1st yr. students at Harvard Law School, thirty yrs. ago. The whole development of the European Union and Britain's entry into alters, in a significant way, what was traditional English concepts of law in a whole menu of area, by making it less specifically "English" is my guess...and my further guess is that as a trade and commercial lawyer, Phil, probably spends a good bit of time puzzling these through.)
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GW, thanks. If you look at the post preceding yours, I had pointed out that there are State law differences. On Westlaw, there are some very useful tables as to how Art 2 has been altered by the various US States, with the most obvious example being the State of Louisiana, which has not implemented Art 2 at all. For the other States, the differences are less dramatic. The more relevant differences resort from additional consumer protection laws, which are enacted on a State by State basis. Those, however, tend to upgrade consumer protection rights rather than to dilute them.
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