posted on November 9, 2000 01:05:37 PM new
melodie
Whatever anyone else tells you. You do not owe him anything. After two years, the buyer has abandoned it. There are more examples and cases in your favor than in the buyer's favor. Abandon your car for a couple months alongside the road, the highway department will take it. And you have no recourse to get it, or its worth back.
posted on November 9, 2000 01:19:05 PM newThere was no title to deliver
There is always a title to deliver. It may not be on paper.
Title passes at time of delivery. Time of delivery varies depending on whether or not seller ships the item.
This question is very related to the "buyer declines insurance" question we've analyzed in great detail.
The bottom line is, until delivery, title remains with seller. (and "delivery" very much includes buyer picking the thing up at seller's location)
If buyer agreed to pick it up in two weeks, that's relevant, and may well justify damages due to breach of the agreement. But it did not result in any transfer of title.
posted on November 9, 2000 01:25:15 PM new
The laws of abandoned property may certainly apply here. A trip to the library might easily confirm that.
I agree that under the circumstances you describe along with the fact that two years have elapsed. I doubt that you have too much to worry about.
But make no mistake, if the property is not considered abandoned, you could have some legal responsibility for anything that happened to the cooler while it was in your possession. Depending on your state laws.
posted on November 9, 2000 02:12:19 PM new
She told her husband to get rid of it...
So what did HE do with it?
If he sold it, what did he do with the money?
posted on November 9, 2000 02:24:57 PM new
mark090, you posted exactly what I had in mind. The cooler was abandoned. Try leaving your car parked at the side of the road for two years and see what happens.
If the buyer threatens to sue you, tell him you will countersue for storage charges. There was an oral agreement that he would pick up the cooler which he failed to do.
No court in this country would expect you to hold his cooler for two years. He failed to abide by the contract to pick it up. After your first reminder to him you are no longer responsible.
posted on November 9, 2000 02:26:33 PM new
May I throw a few musings out to the thread? The car story I mentioned earlier took place over 25 years ago and here are a few things that I painfully learned since then.
A sale is akin to a "contract" and for a contract to be valid a "meeting of the minds" between the parties must take place. In this case the meeting seems to be fuzzy at best, but since payment was made and accepted let's consider it valid for sake of hypothetical argument.
A Seller is obligated to exercise "reasonable care" for an item until a Buyer takes possession. Reasonable care could include "good faith" (and well documented) attempts to contact the Buyer and inform them of the status of the stored item and what could/would happen if the item wasn't picked up. {example: certified letters, recorded phone calls, e-mail copies, etc}
In general, the Seller shouldn't sell or throw away an item until they have "reasonably" exhausted their means to get the Buyer to comply.
So the Seller has a high responsiblity, BUT the Buyer MUST perform his duty to complete the deal also. The duty should be done in a "timely fashion", or at some point, the Buyer logically forfeits the item and the payment.
SO did the Seller "reasonably exhaust" her methods to notify the buyer before she sold the item? AND did the Buyer perform his duty by attempting to pick up the item in a "timely fashion"?
WHAT would YOU decide is "Just Compensation" for these two parties?
posted on November 9, 2000 03:04:59 PM new
Ok here is the thing I see.
Guy bids and wins on an auction refuses shippiment because it to exspensive.
say he will pick it up and after two comunications no he long answers the sellers request to get his Item.
Well here if I put something on layway at Walmart or any department store they give give me 60 days to pay this off even if your layaway has only $10 left to pay it off and your past that 60 day period they say sorry Item went back in to stock for resale and there is no refund on your layAway deposit or payments end of story.
Most states have a 90 day period before Items can be called Abandoned.
in fact for lost property in which the owner cant be found after reasonable attemp to find them the lost proporty becomes rightfully the persons who found it.
With Ebays rules in there TOS you have 30 day to File for refunds on nonpaying bidders and 60 days to file a fraud or insurance claim .
so according to Ebay policy all your rights to claim on frauds and refund are up after 60 days this tells me after 60 days the sale is void.
posted on November 9, 2000 03:11:58 PM new
SO did the Seller "reasonably exhaust" her methods to notify the buyer before she sold the item? AND did the Buyer perform his duty by attempting to pick up the item in a "timely fashion"?
=============
If I had been the seller, I would have gotten the contact information from eBay way back in the beginning, when the buyer stopped responding to my emails. I would have made a phone call or two to try and resolve the issue, and then I would have written a letter summarizing the situation and what we had vergally agreed to do about it.
If the buyer still didn't either pick up the item or arrange for it to be delivered according to our agreement, I would have written a second letter (not an email) stating exactly what I planned to do: sell it again, or charge $X a month in storage, or whatever. I think I would have sent this by certified mail.
If I STILL had no response, I would have considered that I had done my best to make it right, and would have felt free to proceed with disposing of the item.
I think the seller did less than she could have done, especially considering that this was a $450 deal. I also believe the buyer was wrong to not follow through on his end of things, and especially to not respond to repeated attempts to contact him by email.
If I were a judge, I think I'd grant the seller a nominal fee for storage...maybe $10 per month. With that in mind, then, the most the buyer could recover would be about $200. And even that amount would be questionable, given the length of time this transaction remained uncompleted.
posted on November 9, 2000 04:16:14 PM newA sale is akin to a "contract" and for a contract to be valid a "meeting of the minds" between the parties must take place. In this case the meeting seems to be fuzzy at best, but since payment was made and accepted let's consider it valid for sake of hypothetical argument.
Well and good.
A Seller is obligated to exercise "reasonable care" for an item until a Buyer takes possession.
This might seem intuitive, but it's not the way the law works. Seller is obligated to deliver the cooler to buyer, at which time title passes from seller to buyer. Before such delivery, seller has not fulfilled seller's obligation under the contract.
Again, buyer may well be in breach of the agreement by not picking the thing up in the two weeks promised, and damages may well exceed the value of any refund.
Bottom line for any sales contract: seller is obligated to deliver the stuff to buyer in the condition it was described in. Buyer is obligated to deliver payment to seller in the amount agreed.
posted on November 9, 2000 04:24:05 PM new
Id like to find a place to store a bulky item for only 10 bucks a month. Cheapest place around here is 59.00 per month.
posted on November 9, 2000 04:39:37 PM new
Maybe title doesn't pass to the buyer until it reaches it place of delivery as some may say. But remember, it was at its delivery-to-the-buyer point as the buyer made absolutely clear. The buyer said he would pick it up there, therefore, it had been delivered, end of story.
posted on November 9, 2000 04:45:08 PM new
Unfortunately, I went through a similar situation, although mine lasted for 11 years.
My husband restores furniture for a living. Client calls and wants an old Stromberg Carlson crap cabinet converted into a TV cabinet. Husband picks up cabinet, but Customer hasn't bought TV yet, so not sure what size to make for the cabinet & tells Husband he will call him. Husband gets $150 deposit to begin work, which consists of ripping out the guts inside this piece of junk.
After several telephone calls in a three year period of time, moving it around in my husband's restoration shop (mind you, dust, paint, lacquer, etc.), moving from one shop to the other, we decided to have my mother in law use it in her home (she had an oriental motif) as a tv cabinet. The understanding was that if the customer ever called for it, it must go back (we are no at about 5 years of storage here). Still no return phone calls and the one time we finally get through, client tells us "he will get around to it, when he feels like it.".
Lo and behold 11 years later, client calls and advises he wants cabinet. At this point, mother in law moved to the west coast (we were on the east coast) and we assumed after 10 years, it was abandoned and let her take it. We certainly didn't want it.
After we initially tell him we don't have it anymore, it becomes the most valuable item he has ever owned - $10,000 according to him. Of course, if it was worth that much money, would YOU leave it somewhere for 11 years.
Long story short - he sues us to return the cabinet at our cost ($500) - We counter sue for storage fees and make a claim that he abandoned the property. Here is the justice system for you:
1. We did not have a contract with the client that said we could charge for storage. In my counter, I used .50 per day as storage fees.
2. Even after 11 years, the Judge still decided he HAD NOT abandoned this piece of crap.
Final Judgment against us, which stated we had to return the deposit he paid us, but which stated he had to pick up and pay for the return of the "VALUABLE" item.
6 Months later, HE STILL did not pick up the item - had to force the Judge to make him pick it up.
If you have already sold this piece, I believe you are obligated to return his money. If you have not, send him a certified letter indicating that you no longer will store the piece for him after a certain date and that storage fees of "x" amount will apply thereafter. I know it really stinks, but those are the facts.
What frosted my butt was that I still had this piece after 11 years - You think this guy would have at least acknowledged his negligence in forgetting about the piece and thank me for not putting it out to the curb as it truly deserved.
www.xenavalloneantiques.com
posted on November 9, 2000 04:52:42 PM newThe buyer said he would pick it up there, therefore, it had been delivered, end of story.
By this theory, a buyer who did show up could be advised of the unfortunate theft of his stuff, "sorry 'bout that, but, you know, it's not our problem".
It doesn't work that way.
In an FOB transaction, delivery is made to buyer when buyer picks the thing up.
posted on November 9, 2000 04:53:38 PM new
Maui, I know we live near each other. I'm paying about $20 a month for outdoor secure storage for an old RV. I more or less based my nominal fee on that, considering that a coke cooler is a lot smaller.
The key issue, for me, is that I think both parties dropped the ball in the beginning, and I was trying to figure out a fair way to settle the issue two years later. It would be perfectly fair, IMO, for seller to provide a storage figure backed up with some "comparables" from her area. If it's $20 a month, or $50, or whatever...that would be reasonable for her to charge.
posted on November 9, 2000 05:31:06 PM new
sg52
Good point about "delivery". But my generalization was more from the perspective of a Small Claims Court or Common Law view. U.C.C. merchant to merchant; or merchant to consumer is clearer, but will it apply?What about Buyer refusing to inspect goods?
"UCC § 2-503. Manner of Seller's Tender of Delivery.
(1) Tender of delivery requires that the seller put and hold conforming goods at the buyer's disposition and give the buyer any notification reasonably necessary to enable him to take delivery. The manner, time and place for tender are determined by the agreement and this Article, and in particular
(a) tender must be at a reasonable hour, and if it is of goods they must be kept available for the period reasonably necessary to enable the buyer to take possession; but
(b) unless otherwise agreed the buyer must furnish facilities reasonably suited to the receipt of the goods......etc... etc..."
Anyway this is a can of worms all Buyers and Sellers should try their best to AVOID by using good business practice and STAYING IN TOUCH WITH EACH OTHER, and WORK together to make the deal complete.
posted on November 9, 2000 06:17:59 PM new
As much as it can be debated, about abandoned property, there's one thing that everyone seeems to be missing......... the owner (buyer) was not notified, that the property was in 'jeopardy' at any time. If I'm not mistaken, property can not be considered abandoned, unless proper notification has been made to the rightful owner, and the owner has a specific amount of time to claim the property. This was not done.
The seller did not, take appropriate steps to ensure that owner was notified. The seller did not send certified/register mail. Sorry, email doesn't count. I can easily assume that the seller DID have the buyers mailing/shipping address.. since payment was received.
The buyer is far from innocent in this matter, and as much as I hate to, I would have to side with the buyer. Without proper notification, the seller had no right to get rid of the item & and keep the money.
BTW, how exactly was the item gotten rid of? Was it donated? Was it sold to someone else? Was it taken to the dump? If it's the first two, then you've been 'paid' twice for this item.
posted on November 9, 2000 06:52:11 PM newWhat about Buyer refusing to inspect goods?
I think the intent of your question is "what about buyer refusing to accept delivery"?
Such a buyer would be in breach of the contract, and responsible for the damages which might follow.
However, such a buyer would not have accepted title to the stuff.
Consider the situation directly anticipated by the UCC clause cited:
unless otherwise agreed the buyer must furnish facilities reasonably suited to the receipt of the goods......
Consider a buyer who does not satisfy this clause. Say a buyer whose warehouse burns down between buying something and when it comes via shipment, and buyer can't be found for a while. Not radically different from the cooler case, except that we're not accusing this buyer of being a flake.
The legal status of the stuff is that title remains with seller; if the stuff were to be absurdly delivered to the burnt down warehouse and be destroyed, seller would be responsible.
Buyer would be responsible for seller's damages, including the cost of the futile delivery attempt.
posted on November 9, 2000 07:13:11 PM new
I don't have any "legal" advice (of course not!) or any opinion on the legalities of the situation.
I did, however, have a similar situation resulting from online auctions, albeit for a much smaller dollar amount.
Acquaintance (online only) buys a dress from me on a small auction site geared toward moms and babies. We "know" each other from an email list we are both on (to this day!). She sends payment in form of a check, I deposit and hold check, check clears, I ship dress Priority Mail as usual. I never hear from her as to whether or not she got the dress though I did email her to tell her it was on its way (as usual). Dress comes back in the mail a month later, stamped with red ink "Recipient did not claim" or something along those lines... so I of course check and re-check the address she gave me for shipping. It was as it should be.
I email her, tell her what happened, ask her where she wants me to send this thing (and again verify the address I was asked to mail it to).. her response is a one line "Well gee, I really don't know why this happened!" So I email her again, ask AGAIN for another address or further instructions. No response. This goes on for about six weeks, me emailing her repeatedly and her not responding. Thinking perhaps there was some problem with my email getting to her, I have others send her email from different email addresses (other moms on this list we're on) and they report back that they got no response either. Finally I post a desperate "ATTENTION, XXXX, PLEASE EMAIL ME ASAP!" type of post to the list we are on together, because oddly enough she'd been actively posting there the entire time. No response!! I do it again. No response. One person emails me privately to say that they are having trouble getting through to her as well but in their case the woma that bought my dress had *sold* them an item on the same auction site and had not sent it nor had she responded to emails and it had been months.
So, about 2 months after the dress was returned to me (3 months after the sale) I write her a "final notice", telling her I'm going to dispose of the dress/re-sell it if I don't hear from her within 48 hours. Now, keep in mind this is a smaller site with an auction section as just a tiny part of the site, and there was at that time no contact info given like on ebay, so ALL I had was her email address and the bad snail mail address she'd given me. No way to send the dress again, no way to send her her money back.
She never responds! I hold onto this dress for another 4 months, thinking she'll contact me, then I sell the dress (again) for about the same amount. To this day she never wrote and never responded. I figure the $30 she sent me didn't really even begin to cover my "time" spent chasing after her to get her to retrieve her freakin' dress.
Very odd, that's for sure. You just don't know about some people. I can't imagine having over $400 to burn by letting some purchase sit for 2 years unclaimed.... I can't even imagine spending $30 on a dress then not caring enough about getting it to respond to several emails. I don't know what would have happened legally if this had escalated, and I imagine had it been for a higher dollar amount I would have tried harder to get the item to the buyer (though I tried awfully hard as it was!), and had I had a phone number I would have used it. Anyway, that's my story.
Oh, and dman, I don't know if Wal-Mart's policies are different from store to store, but I have let lay-away items 'go' several times (making a few payments, then not being able to finish paying) and have even waited past the 60 days they give you, and while they return the merchandise to the floor, they've ALWAYS given me my money and deposit back.
Sheri
[email protected]
[ edited by BlackCoffeeBlues on Nov 9, 2000 07:16 PM ]
posted on November 10, 2000 07:33:21 AM new
Here's something similar I went through. Hope it helps.
I sold a heart surgeon who owns his own medical clinic two computers back in 1983. A few years later, he purchased a complete network system from another company and moved my computers into his kitchen area. He put them on a rickety table along with a microwave. Then he called me to complain they didnt work. I went out to look at them and told him you cant put a computer next to a microwave and I saw how many people banged into the table on their way into the room. Those of you who remember the "good old days" there was a time when your hard drive would crash if you bumped the table while it was running (not that it's a good idea to do that even now). Anyway, he insisted that I take the computers to my office and repair them. I had to replace some chips fried by the microwae and both hard drives. The bill was somewhere around $600. I mailed him a bill and called him repeatedly but he refused to respond. After over a year, I sold the machines, getting just about what he owed me. A year later, I get a lawyer's letter demanding $8000 (the cost of the machines back in 1983, plus the printers and other peripherals he still had, plus what he had paid me for consulting and training, plus penalties for his "lost time".
At first, I panicked. Then a lawyer friend suggested a response. I called the lawyer and told him what happened. I reduced the $8,000 to $3200, the cost of the two machines back in 1983. I told him he couldn't claim lost time because I had been waiting for him to respond. I told him that I would be happy to return his client's machines as soon as he paid the $600 due, plus two years of interest and storage at $10 a day. They decided to drop the issue.
I'm not an expert but after watching court TV for a long time including Judge Judy and Judge Mills, the judge can tell you this: Are you a deposit house? Where did you come with this idea of charging? Did you tell/warn the buyer that you will be charging for deposit? Did he accept any of these conditions? etc. etc. So please guys to try to be so nice with her and stick with the reality. Now, what I recommend you is, try to charge him a lit bit for the all the inconveniences, but not for the entire item, otherwise he'll decide to get his entire money back plus interests, and since you are not a deposit house (with a license) you can't claim for any $. So the best way to work this out is, by trying to get the mo$t you can get from him, but stay away of any legal dispute. After all he seems to be a very busy man, so I bet that he know all his rights and I bet that he has lawyers for free because he's a businessman, so he doesn't even have to appear in court, due his position.
posted on November 10, 2000 08:15:50 AM new
My wife just told me that yesterday on a TV court show, they had almost this exact situation. A customer paid for an item and left it there for over a year then showed up wanting the item. The store was claiming that after a certain period, they are no longer responsible for the item.
The judge told the customer that if the item was abandoned, they have no right to it and if it wasn't abandoned, they would owe the store for storage which would be as much if not more as the item costs. In any case, the ruling was in favor of the store.
posted on November 10, 2000 09:23:10 AM new
Do not do anything. The buyer can, if he wants, take you to court. He will hire a lawyer, pay court costs just to get a refund. And he will more than likely lose. Even if he wins, he loses. You are only responsible for the purchase price. He can not sue you for court costs and lawyer's fees and there being no "injured party", no punitive damages.
posted on November 10, 2000 10:39:19 AM newa deposit house (with a license)
I don't know where you are, poton, but I do not know of any such "deposit houses" in the U.S., nor any requirement for licensing if they do exist under some other name. Are you by chance referring to pawnshops or storage facilities? I can't see that either situation would apply.
BlackCoffeeBlues, if your "buyer" was like mine (BTDT), she was probably trying to force a refund by refusing the package, expecting you to be in the same quandary as our thread initiator.
I think mark0990 has the best advice outside a law office: Make THEM take the next step. You don't have to act now; if push comes to shove you could always agree to reimburse (minus costs) AFTER they've filed suit - at which point you should definitely get yourself a lawyer.
[ edited by HartCottageQuilts on Nov 10, 2000 10:42 AM ]
posted on November 10, 2000 10:42:02 AM new
From what I saw above, I have a comment to make re: the UCC and the laws that govern sales AT AUCTION.
sg52 - you are not correct when you talk about the passing of title as far as sales at auction are concerned. For sales AT AUCTION...title passes to the Buyer when the Auctioneer cries SOLD, or in the case of on line, when the offering ends the auction ends at x:xx time. THAT is when the goods become the property & responsibility of the Buyer.
I do believe that you are making the error when looking at sales OTHER than sales AT AUCTION. For 'other sales' there are different issues of the passing of title, which may contain the issue of title passing when delivery is taken.
As to the issue of taking delivery....in the absence of specific terms that would spell it out [like in many many live auctions that will specify immediate removal], in this case it is MHO that the Seller needed to send a certified or registered letter to the buyer with notice and a deadline for taking delivery and a specific consequence for not following thru. If the buyer did not follow thru by the deadline, then the Seller would be within their rights to do with the property as they outline in the certified Communication. Email would not do the trick.
Storage fees would be allowable if the imposition of such fees was part of the consequence contained in the Certified communication and if they were spelled out in that notice and the buyer failed to act as notified.
As o this situation, put the buyer on notice and let them take action if they want. I doubt that they will.
posted on November 10, 2000 11:14:50 AM new
No offense, but many of these answers are WAY OFF BASE.
1 - The UCC has nothing to do with contract Law. Sales contracts are governed by Statutory law.
2 - An agreement was made to sell, and the buyer paid. The buyer owns the cooler.
3 - In the absence of a storage payment agreement, the seller must hold the item indefinitely. They have no right to charge rent.
4 - The seller had NO RIGHT to re-sell a cooler that did not belong to them.
5 - The buyer has a right to the cooler, not a refund. I have seen cases where the judge ordered the seller to buy the item back and return it to the rightful owner.
You can blather all you want about TV court, but this is basic contract law.
posted on November 10, 2000 11:18:21 AM newTV court show, ...A customer paid for an item and left it there for over a year then showed up wanting the item....the ruling was in favor of the store.
Two things.
1. If you go to a store and pay for something and they hand it to you, and you ask if you can leave it there for a while, you have accepted delivery. That's not the current situation.
2. Court TV show judges, at their best, sometimes predict the outcome of the case should both parties have their interests fully represtented, including an imaginary countersuit by the party labled "defendant".
posted on November 10, 2000 11:38:23 AM newFor sales AT AUCTION...title passes to the Buyer when the Auctioneer cries SOLD, or in the case of on line, when the offering ends the auction ends at x:xx time. THAT is when the goods become the property & responsibility of the Buyer.
1. Ever had the auction house not be able to find something you bought? Now imagine that they told you that you had taken title when the auctioneer cried SOLD, and, sorry, not our problem, you gotta pay anyway.
2. Auctions are not some alice in wonderland of legal principles where the UCC is overridden. State laws covering auctions tend to say more about auctioneers than buyers, and when they do say something about buyers, it's never (that I've seen) at odds with the UCC. Rather, the law may clarify what it means, legally, to bid, a topic not specifically addressed by the UCC. That's why while surely I've not seen every auction law in existence, the notion that the item is legally delivered to buyer at SOLD time, even while the auction house keeps it until it is paid for, cannot be true.
3. It's not at all clear that eBay auctions are auctions under the laws of any state. This question remains to be truly settled, but a likely result is that they are not auctions at all, but rather a series of weak agreements resulting in a final agreement between a mail order merchant and a consumer, or possibly between two consumers if neither is experienced.
posted on November 10, 2000 12:26:35 PM new
the reason that I am making these posts is that I have been schooled in auction law by a very well respected auction school.
sg52 - Well lets see, Your #1: "Ever had the auction house not be able to find something you bought? Now imagine that they told you that you had taken title when the auctioneer cried SOLD, and, sorry, not our problem, you gotta pay anyway. ". If they undertook for you the placing of the item in a holding area, then they would be responisble. But, if said item is handed to you, or YOU put it aside someplace, or,in the case of furniture or a large item and it gets stolen or damaged, you are on the hook. the responsibility of the goods as well as the title passes to you.
your #2: Not correct. I did not say that the UCC is overidden. It does have seperate section that deals with sales via the Auction Method. If you do get the chance to understand the UCC as it applys to sales at auction, then you will see that yes, it does mean that title is passed at the Fall of the Hammer.
#3: well I can agree that it has not been tested at law....but as the format is the same: "auctionem" a sale by an increase of bids. Mail auctions have been conducted for many many years, in the abscence of fraud, I cannot see why the offering at Ebay would not be or could not be considered sales at auction.
Perhaps an easy way for one to see what all I am referring to is to examine [if you have access to maybe one is on line] a copy of a Sotheby's or Christies Terms of Sale in a catalogue. In it will be all of the points addressed above [and a whole lot more]. These T&C, in the main, have been used for many years, do not contradict the UCC and have been tested more than a few times in courts over the years.
.