2013 Gibson ES-175 NOS

[goldenwave77]

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.

Now you're speaking out of both sides of your mouth: There is a set of federal statute books contained in every decent law library in the U.S. There is not, and never has been, an Article 2 of the U.C.C. (sales of goods) that is found in them. Further, if you go into a federal courthouse and try to file under an Art. 2 theory, you'll get bounced out of there in a hurry. So it is a very real, and literal distinction.

Quite rightly, you point out that there are additional "consumer protection" statutes within various states. These are entirely separate from the U.C.C., were enacted at separate times, and deal with a whole lot of other stuff besides Art. 2 stuff. (I can't apologize for the complexity and non-uniformity of the U.S. system, but as there are plenty of U.S. lay, as well as foreign, lay, forum members here, so I feel the need to be clear, but perhaps over scrupulous, about this.)

But we should probably leave off here....when I was a kid growing up in the U.S. we had an expression, "Don't make a federal case out of it!" which roughly means "don't make it into a big deal!" I will certainly stipulate that your understanding of U.S. law far, far surpasses my understanding of British law which is largely derived from Monty Python episodes.

[Phil in London]

Well, not sure how to understand your post.

Of course Art 2 UCC is not in itself State law, when I mentioned "implementation" I referred to the state statute that corresponds to the respective Articles of the Uniform Commercial Code. See Uniform Commercial Code Locator | LII / Legal Information Institute

This link also provides links to which State has implemented Art 2 UCC in which state statute.

As it turns out, in the State of NY, for example, the Federal UCC has been implemented by ways of a 'NY UCC', with analogous numbering, thus sales falling under Art 2 NY UCC - http://law.justia.com/codes/new-york/2010/ucc. Your statement "There is not, and never has been, an Article 2 of the U.C.C. (sales of goods) that is found in them" may thus need further consideration. See also http://www2.nycbar.org/pdf/NYLJ_NewYorksProposedUCCAmendmentsBacktotheFuture. pdf.

[2bornot2bop]

Re the Gibson ES 175 that was purchased, under a dealer's 'no return policy'.

Private guitar sellers often have the identical 'no returns' policy stated in their Ebay, Reverb, Gbase, etc ads.

Problem for those sellers, if any item arrives to the buyer not described as sold, they the seller are up the creek without a paddle, IF, the buyer does the right thing and purchases with an AmEx card or Paypal.

There is no such thing as a 'no return' policy if purchased with Amex, for Amex IS the return policy.

I bought a $1200 guitar on Reverb 8 months back that arrived "not described as is." Of course the seller refused to acknowledge selling the guitar with defects not listed anywhere in his ad.

I had the guitar inspected by a local luthier, who was kind enough to provide me with a written repair estimate. I filed a case with Amex, and was given an instant refund. Amex then spends 45 days investigating, but at the end of the day I returned a guitar purchased under a 'no return' sales policy.

I'd never buy a guitar from the 'net without putting it on Amex or paypal...too many things can go wrong.

That said, a week ago I successfully shipped a high dollar archtop to Australia, so knock on wood!

[Phil in London]

2Be, I dont think that you have read the above thread, the whole point of which was that in certain circumstances, the law provides for a statutory right to send a guitar back even if the dealer has a 'no returns policy'. Which is what buyers often do not know and they allow the seller to bully them into silence based on some store policy, even though this policy may either not have been incorporated properly into the sales contract, or trumped by a consumer protection regulation which cannot be, or has not validly been, excluded. Of course, if the seller is strictly a private individual with no regular guitar sales, the situation is different.

[goldenwave77]

Well, not sure how to understand your post.

Of course Art 2 UCC is not in itself State law, when I mentioned "implementation" I referred to the state statute that corresponds to the respective Articles of the Uniform Commercial Code. See Uniform Commercial Code Locator | LII / Legal Information Institute

This link also provides links to which State has implemented Art 2 UCC in which state statute.

As it turns out, in the State of NY, for example, the Federal UCC has been implemented by ways of a 'NY UCC', with analogous numbering, thus sales falling under Art 2 NY UCC - UCC - Uniform Commercial Code :: 2010 New York Code :: US Codes and Statutes :: US Law :: Justia. Your statement "There is not, and never has been, an Article 2 of the U.C.C. (sales of goods) that is found in them" may thus need further consideration. See also http://www2.nycbar.org/pdf/NYLJ_NewYorksProposedUCCAmendmentsBacktotheFuture. pdf.

Go to the very cite in your post from the Legal Information Insti. and click on, and read about the Uniform Laws Projects. I will paraphrase, in plain-spoken American English: In 1892, a bunch of white-haired rich windbags got together because they felt it would be nice if the U.S. had uniform laws. They had no official power, or sanction, or mandate. They only had the "power" to make recommendations to various state legislatures: IN other words, they were fartin' in the wind. Now, some of these state legislators felt uniform laws were a good idea but many did not...some of them felt certain uniform laws would be a fine idea, but others were not a good idea...some of the uniform laws got enacted...many did not and many were laughed right out of the various leg. bodies. Mostly, the commercial uniform laws fared better (Art. 2) but even there, there are notable examples of non-uniformity, e.g. Art. 4 Letters of Credit, was rejected by New York, the premier financial jurisdiction, because it said in effect...."we know letters of credit, very well, thank you...go peddle your uniformity provisions to the yokels in the provinces who might need them, but we certainly don't".

The Uniform Commissioners are a bunch of non-official, private citizens. Some believe them God-like...others thought they were the equivalent of The Wizard of Oz....and Americans have a certain, healthy distrust of centralized authority...most of all...when it comes from a bunch of unelected, unrepresentative establishment types who were formed in 1892...on the eve of the 1893 U.S. financial panic which persisted for years....distrust of establishment types was still rampant in many parts of this country, esp. in the South and the West. Look, you have the same thing in England: If I mistook a Yorkshireman for a Kentish gentleman or a Bloomsbury intellectual, probably all three of them would take offense.

I'm sorry sir, your contention that Art. 2 is federal law is just wrong, and dead...you may wish to say "Nay, sirrah...it is not so", but frankly it is like the former parrot in the Monty Python sketch....dead and not "merely resting".

[goldenwave77]

2Be, I dont think that you have read the above thread, the whole point of which was that in certain circumstances, the law provides for a statutory right to send a guitar back even if the dealer has a 'no returns policy'. Which is what buyers often do not know and they allow the seller to bully them into silence based on some store policy, even though this policy may either not have been incorporated properly into the sales contract, or trumped by a consumer protection regulation which cannot be, or has not validly been, excluded. Of course, if the seller is strictly a private individual with no regular guitar sales, the situation is different.

Excellent points here....the fact that the merchant would like, and prefer it, to be otherwise...does not change the fact that most of the time the merchant will not have done the proper and needed things to overcome the implied statutory duties of performance, imposed upon him....whether he likes it...whether he knew about it, etc. Art. 2 will apply to a sale of goods irrespective of intention, as was made clear in one of Phil' earlier posts.

[Phil in London]

Go to the very cite in your post from the Legal Information Insti. and click on, and read about the Uniform Laws Projects. etc... etc... .

As I said above and in my more recent posts - it all depends on how State law implements the respective Articles of the UCC. As regards Art 2, one might summarise that such departures are, to the most part, insignificant (see e.g. LexisNexis(R) InfoPro - Zimmerman's Research Guide - Uniform Commercial Code), but if one intends to resort to the rules of the UCC in a concrete case, further investigation into the applicable state laws is necessary.

And finally - I rest my case by pointing out that the UCC, according to the case of US v Kimbell Foods, seems not only to have a life within the implementing State law statutes, but also seems to be slowly creeping into federal law - See http://ir.lawnet.fordham.edu/cgi/vie...58&context=ulj. But I do admit that the subtleties of US constitutional debates are beyond me - and, quite frankly, not even the point here.

[goldenwave77]

Lawyerly quibbles aside---what the lay person should take away from the UCC discussion


Phil in London, and I, have been back and forth in series of posts re: whether UCC-2 is properly "federal" or not. This is essentially a debate between lawyers, and a debate about legal niceties, which, in essence...matters not to the substance contained in the earlier posts, i.e.:

-UCC-2 will almost certainly govern, and will impose in virtually all cases implicit duties on a selling merchant, which often will not have been effectively disclaimed. The Ucc as enacted in a particular state, and in effect in a particular state, provides the legal framework for analysis.

-As Phil's earlier posts note, other consumer laws may apply, in a particular state, and may offer additional protections.

Aside from these essentially legal, theoretical concerns are the real basis for unwinding transactions--namely credit card companies being willing to go to bat for buyers, assuming some requisite documentation.