Legal Advice Please!!! - Selling via email...
04 March 2005, 11:33 AM
#1
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Legal Advice Please!!! - Selling via email...
Hi there
Hope someone out there can offer some advice.
I agreed via email to sell a roof rack to someone. I said I'd pack it up and bring it down to London on the train the next time I was there on business.
I thought I'd have a go at selling it on ebay in the meantime. I got the offer I wanted on ebay and was obliged to sell it as per their rules.
I emailed the first person and apologised for mucking them about and said the sale was off.
They replied as follows:
*******
We had a legally binding contract which you have now breached.
Please note that I am perfectly well within my rights to now source
these items elsewhere and sue you for the difference. *****
What do you make of his points regarding legally binding contract? Is this the case?
Hope someone can help me!!
Thanks
Hope someone out there can offer some advice.
I agreed via email to sell a roof rack to someone. I said I'd pack it up and bring it down to London on the train the next time I was there on business.
I thought I'd have a go at selling it on ebay in the meantime. I got the offer I wanted on ebay and was obliged to sell it as per their rules.
I emailed the first person and apologised for mucking them about and said the sale was off.
They replied as follows:
*******
We had a legally binding contract which you have now breached.
Please note that I am perfectly well within my rights to now source
these items elsewhere and sue you for the difference. *****
What do you make of his points regarding legally binding contract? Is this the case?
Hope someone can help me!!
Thanks
04 March 2005, 11:39 AM
#4
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You have a contract with the original buyer - you agreed to sell to them, you went back on that contract
You are liable if they wish to sue ....... he has evidence by way of e-mails!!
Whatever their out-of-pocket expenses are to put them into the position that they would have been had you honoured your part of the contract you will have to pay
Pete
You are liable if they wish to sue ....... he has evidence by way of e-mails!!
Whatever their out-of-pocket expenses are to put them into the position that they would have been had you honoured your part of the contract you will have to pay
Pete
04 March 2005, 11:45 AM
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Hi Pete - wasn't arguing with your advice, just setting out all the facts - thanks for your posts.
Are you in the legal profession? Do you have links on the web which set this info out?
Cheers
Are you in the legal profession? Do you have links on the web which set this info out?
Cheers
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04 March 2005, 11:50 AM
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Just had a browse here
It seems you may be liable, but it doesn't look like anybody has taken a case to court yet to set the precident.
The legal position - and how this applies to buying from the Internet
The principles of offer and acceptance in a consumer contract have been established over decades of testing before the courts. More specifically the concept of an 'invitation to treat' was established as long ago as Pharmaceutical Society of Great Britain v Boots Limited [1953]1 QB 401. For a binding contract to exist, there must be the offer, a consequential acceptance, consideration for the deal and an intention to create legal relations.
Current understanding of web-based transactions is based almost solely on a collective belief in the legal profession of how such transactions should progress - it has not been legislated for by Parliament, nor tested before the courts. From recent debates on the topic, it is generally accepted, contrary to the original view expressed by Kodak, that an advert on a website of an item for sale at a certain price is the invitation to treat, and the process of filling out the order form and passing over personal details such as credit information by the customer is the offer. Following this to its logical conclusion, the next communication from the retailer is the acceptance of the offer if the terms contained therein are compatible with this position, and the retailer is therefore under a legal duty to perform. It is an unfortunate reality that automated responses are more often than not used for this purpose, and it is this practice that is causing online retailers problems which their standard terms and conditions often do not adequately legislate for.
The principles of offer and acceptance in a consumer contract have been established over decades of testing before the courts. More specifically the concept of an 'invitation to treat' was established as long ago as Pharmaceutical Society of Great Britain v Boots Limited [1953]1 QB 401. For a binding contract to exist, there must be the offer, a consequential acceptance, consideration for the deal and an intention to create legal relations.
Current understanding of web-based transactions is based almost solely on a collective belief in the legal profession of how such transactions should progress - it has not been legislated for by Parliament, nor tested before the courts. From recent debates on the topic, it is generally accepted, contrary to the original view expressed by Kodak, that an advert on a website of an item for sale at a certain price is the invitation to treat, and the process of filling out the order form and passing over personal details such as credit information by the customer is the offer. Following this to its logical conclusion, the next communication from the retailer is the acceptance of the offer if the terms contained therein are compatible with this position, and the retailer is therefore under a legal duty to perform. It is an unfortunate reality that automated responses are more often than not used for this purpose, and it is this practice that is causing online retailers problems which their standard terms and conditions often do not adequately legislate for.
04 March 2005, 11:50 AM
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I'm not actually sure there is a binding contract until some sort of "consideration" has taken place, like payment!
It's still rather dishonourable of you to go back on your word though!
It's still rather dishonourable of you to go back on your word though!
04 March 2005, 11:52 AM
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Originally Posted by ajm
I'm not actually sure there is a binding contract until some sort of "consideration" has taken place, like payment!
It's still rather dishonourable of you to go back on your word though!
It's still rather dishonourable of you to go back on your word though!
04 March 2005, 11:53 AM
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Originally Posted by pslewis
You still had a contract and thats all that matters, sorry!
Pete
Pete
In English law for any contract to be legal and binding (land is different) there has to be 3 elements:
1. An offer
2. An acceptance
3. Consideration
Your 'contract' with the e-mail buyer contains 1 & 2 but as no money (or a deposit, usually £1) was exchanged there was no number 3, consideration.
Therefore although there was the makings of a contract there it didn't quite reach the binding stage!
I can site case histories and judicial rulings if you like!
Don't worry about it. Ignore him and he'll go away.
Paul
04 March 2005, 11:55 AM
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No contract due to no exchange of consideration. Unless you took a deposit ?
Hardly a pleasant way to sell something, hope someone turns you over in the same manner.
D
Hardly a pleasant way to sell something, hope someone turns you over in the same manner.
D
04 March 2005, 11:56 AM
#13
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Originally Posted by ajm
I'm not actually sure there is a binding contract until some sort of "consideration" has taken place, like payment
It can be a Verbal Contract, even!!
This contract is via e-mail and therefore can been shown ..... its documented!
Now, I doubt that the buyer would go to court ...... but they could, and they WOULD win!
Pete
04 March 2005, 12:01 PM
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Originally Posted by Dunk
No contract due to no exchange of consideration. Unless you took a deposit ?
Hardly a pleasant way to sell something, hope someone turns you over in the same manner.
D
Hardly a pleasant way to sell something, hope someone turns you over in the same manner.
D
No money, not even a deposit, was exchanged.
I've had this happen to me before - no money had exchanged hands, and I remember feeling miffed, but just put it down to back luck. I wasn't furious or anything, as I'd not lost any money,
04 March 2005, 12:02 PM
#15
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Vipa, you are way out .......
"Contracts with Customers and Suppliers:-
Although in law a simple telephone call can constitute a contract, and therefore would be binding, you would be foolish to rely on unrecorded and unsigned agreements, even to vary the terms of your standard contract"
In this case an e-mail is the contract, the BINDING contract.
Like I said, they are not likely to take it to court.
Pete
"Contracts with Customers and Suppliers:-
Although in law a simple telephone call can constitute a contract, and therefore would be binding, you would be foolish to rely on unrecorded and unsigned agreements, even to vary the terms of your standard contract"
In this case an e-mail is the contract, the BINDING contract.
Like I said, they are not likely to take it to court.
Pete
04 March 2005, 12:11 PM
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Originally Posted by OllyK
Just had a browse here
It seems you may be liable, but it doesn't look like anybody has taken a case to court yet to set the precident.
It seems you may be liable, but it doesn't look like anybody has taken a case to court yet to set the precident.
Invitation to treat is best explained by using consumers misunderstanding as an example.
A person goes into an electrical retailer and an Iron is on the shelf at £10. Person goes to counter and says "I'll have that at £10," the retailer says "sorry we must have put the wrong ticket on, that iron is £50!"
The customer says "but you advertised it wrong therefore you have to honour the price!"
Wrong...... This is called invitation to treat. Most people (quite understandably) view an item at a specific price on a shelf as 'an offer' so if they 'accept' that offer and assume contract is formed and the retailer must 'perform' where in reality it is the consumer making the 'offer' to purchase the item at the advertised price and the retailer is quite within his rights to reject that offer. Also again there is no consideration so no contract exists anyway.
Off topic slightly I know but it meant I could avoid doing any real work for 5 mins.....
04 March 2005, 12:17 PM
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Originally Posted by pslewis
Vipa, you are way out .......
"Contracts with Customers and Suppliers:-
Although in law a simple telephone call can constitute a contract, and therefore would be binding, you would be foolish to rely on unrecorded and unsigned agreements, even to vary the terms of your standard contract"
In this case an e-mail is the contract, the BINDING contract.
Like I said, they are not likely to take it to court.
Pete
"Contracts with Customers and Suppliers:-
Although in law a simple telephone call can constitute a contract, and therefore would be binding, you would be foolish to rely on unrecorded and unsigned agreements, even to vary the terms of your standard contract"
In this case an e-mail is the contract, the BINDING contract.
Like I said, they are not likely to take it to court.
Pete
I'm in a profession which fringes (understatement) on the legal side of land and property purchase so obviously have 'contacts'
Just put the phone down from a local collegue/friend/SOLICITOR and....... she agrees with me.... even when and grabbed some books and confirmed it in there.
"either party to a contract can withdraw from that contract without prejudice or obligation up to the point where payment is ether given or received in full or part thereof"
Think about it logically.... I am having a laugh on here and someone says "tell you what Paul I'll buy your Scooby off you for a tenner!" I jokingly say "Yeah... ok"!!!!! Now you have as far as you are concerned written evidence of a contract so I have hand my Scoob over for a tenner!
Without consideration the contract is unenforcable and for the exact reason as above!
I rest my case M'lud and would ask that you get your little black hanky out to put on top of your wig!
Paul
Last edited by Vipa; 04 March 2005 at 12:21 PM.
04 March 2005, 12:17 PM
#18
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If you say to the shopowner, "I want to buy that item at the advertised price, will you sell it to me?"
The shopowner says, "Yes, you have a deal, I will also deliver it for you"
Buyer, "OK, thank you - I will pay on delivery"
Shopowner, "Agreed"
Thats a BINDING contract!
If the Shopkowner then sells to someone else who doesn't want delivery, as its easier, makes the shopowner liable for the costs involved in placing the buyer into the position they would have been in had the contract been honoured.
I hope you are NOT in the legal profession Vipa?????
Pete
The shopowner says, "Yes, you have a deal, I will also deliver it for you"
Buyer, "OK, thank you - I will pay on delivery"
Shopowner, "Agreed"
Thats a BINDING contract!
If the Shopkowner then sells to someone else who doesn't want delivery, as its easier, makes the shopowner liable for the costs involved in placing the buyer into the position they would have been in had the contract been honoured.
I hope you are NOT in the legal profession Vipa?????
Pete
Last edited by pslewis; 04 March 2005 at 12:21 PM.
04 March 2005, 12:21 PM
#19
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Originally Posted by Vipa
Pete
"either party to a contract can withdraw from that contract without prejudice or obligation up to the point where payment is ether given or received in full or part thereof"
"either party to a contract can withdraw from that contract without prejudice or obligation up to the point where payment is ether given or received in full or part thereof"
You are talking COMPLETE and UTTER BOLLOX!!!
They CAN withdraw ...... mutually!
They CAN withdraw ...... but, still be liable!
My mate reckons you're a jumped-up clerk?
Pete
04 March 2005, 12:23 PM
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Originally Posted by pslewis
If you say to the shopowner, "I want to buy that item at the advertised price, will you sell it to me?"
The shopowner says, "Yes, you have a deal, I will also deliver it for you"
Buyer, "OK, thank you - I will pay on delivery"
Shopowner, "Agreed"
Thats a BINDING contract!
The shopowner says, "Yes, you have a deal, I will also deliver it for you"
Buyer, "OK, thank you - I will pay on delivery"
Shopowner, "Agreed"
Thats a BINDING contract!
Pete Im an IFA, have been for 15 years also studied contract law as part of my 1st class hons!
Paul
04 March 2005, 12:26 PM
#23
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Originally Posted by Vipa
Contract is not fullfilled until the cash is handed over upon delivery.
Pete Im an IFA, have been for 15 years also studied contract law as part of my 1st class hons!
Paul
Pete Im an IFA, have been for 15 years also studied contract law as part of my 1st class hons!
Paul
I am surprised you have got it sooooo wrong?
My mate is a qualified Solicitor, not an IFA Clerk thingy
Go back to college!
Pete
04 March 2005, 12:36 PM
#24
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Just got this for the thread:-
"Much of today's business is conducted over email, and it's possible to bind yourself to a contract through email, either deliberately or inadvertently.
If an email or chain of emails clearly states an offer for entering into a deal with all of the material terms, and the other side responds by email accepting the terms, then there's a good chance that a valid contract has been formed — even though no signatures have been exchanged. So be careful. If all you intend is to negotiate the issues leading to a formal written and signed contract accepted by both parties, make sure you say that in your emails.
The law allows businesses to send copies of signed documents electronically and to store archived copies of these documents in electronic form. Although there are certain exceptions, many routine commercial transactions are covered. The law even allows for the electronic notarization of legal documents.
The most important consequence is the fact that consumers can now "sign" contracts over the Web by simply pushing a button, clicking a link, or completing some other simple action. This means that two parties can negotiate, sign, and exchange copies of a contract without ever meeting face to face, signing a physical document, or producing a hard copy of an agreement. And, as far as the law is concerned, such an agreement can be just as valid as a written agreement using actual signatures.
The law specifies a list of documents that cannot be signed electronically, including wills, trusts and estates; marriage, divorce, adoption, and other family agreements; court documents and filings; utility service terminations; eviction, foreclosure, and repossession notices; health and life insurance termination notices; and documents referring to the handling or transportation of hazardous materials"
A BINDING Contract is made WITHOUT 'consideration' being made
Pete
"Much of today's business is conducted over email, and it's possible to bind yourself to a contract through email, either deliberately or inadvertently.
If an email or chain of emails clearly states an offer for entering into a deal with all of the material terms, and the other side responds by email accepting the terms, then there's a good chance that a valid contract has been formed — even though no signatures have been exchanged. So be careful. If all you intend is to negotiate the issues leading to a formal written and signed contract accepted by both parties, make sure you say that in your emails.
The law allows businesses to send copies of signed documents electronically and to store archived copies of these documents in electronic form. Although there are certain exceptions, many routine commercial transactions are covered. The law even allows for the electronic notarization of legal documents.
The most important consequence is the fact that consumers can now "sign" contracts over the Web by simply pushing a button, clicking a link, or completing some other simple action. This means that two parties can negotiate, sign, and exchange copies of a contract without ever meeting face to face, signing a physical document, or producing a hard copy of an agreement. And, as far as the law is concerned, such an agreement can be just as valid as a written agreement using actual signatures.
The law specifies a list of documents that cannot be signed electronically, including wills, trusts and estates; marriage, divorce, adoption, and other family agreements; court documents and filings; utility service terminations; eviction, foreclosure, and repossession notices; health and life insurance termination notices; and documents referring to the handling or transportation of hazardous materials"
A BINDING Contract is made WITHOUT 'consideration' being made
Pete
04 March 2005, 12:46 PM
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Originally Posted by pslewis
We are NOT talking FULLFILLED contract!! That means CONCLUDED!!
I am surprised you have got it sooooo wrong?
My mate is a qualified Solicitor, not an IFA Clerk thingy
Go back to college!
Pete
I am surprised you have got it sooooo wrong?
My mate is a qualified Solicitor, not an IFA Clerk thingy
Go back to college!
Pete
Just for a second... 1 second.... take a deap breath, calm down and think about what you are saying... in fact let's imagine you are buying a house in England, slightly different in Scotland but it's only the timing and sequence of events that really differs (using this as it IS my area of expertese)
You put an offer on that house and the vendor accepts the offer... The ball starts rolling, surveys are carried out, your conveyancer/solicitor does thier bit and starts preparing draught contracts, organising searches etc... all costing money....
3-4 weeks go by and you are about to exchange contracts and pay your deposit (the consideration, 10% of the purchase price of the property)..... the estate agent calls....... the vendor has decided not to sell!!!!!
Where does that leave you and what recourse is available to you?
It leaves you nowhere and with no recourse as the contract did not progress to the point where there was any consideration.. You have no claim for anything!
If the deposit had been paid and the contracts exchanged then the party who breaks the contract is liable for the 10% plus any costs incurred by the other party/ies.
A land transaction is just a more complex example of any contract, the elements are the same and the proces is 'largely' the same.
If contracts could be enforceable with no 'consideration' it would be very very easy to get someone to agree to sell you something for a rediculous price by e-mail or on a forum such as this in 'jest' or down the pub after you'd had a skin full..... "I'll buy you another beer if you let me have your 52" plasma screen for a fiver?" shewwwww.... yerrrr... alllrrrrigghht.... hic!!" (please say with a very drunken slur) a week later comes a knock on the door... " come to collect me telly!"
Pete.... I believe you are... or were in education........ Both my parents were teachers, my mum a head and by being brought up in that environment I grew up with a knowledge of education both practical and theoretical..... But I would never dream of arguing with an educator about education.... a little knowledge can be a dangerous thing!!!
Paul
04 March 2005, 12:54 PM
#26
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Lets not talk about house buying as you are aware it is governed by its own rules ...
You are playing with words in a clerky type way .....
Lets talk about the ISSUE here:-
Seller offers a Roof Rack for sale
Buyer agrees to buy Roof Rack via an e-mail
Seller agrees to sell Roof Rack and a price is agreed via an e-mail
Is that, or is that not, a BINDING contract?
The very highly qualified advice I have is that it IS!
Pete
You are playing with words in a clerky type way .....
Lets talk about the ISSUE here:-
Seller offers a Roof Rack for sale
Buyer agrees to buy Roof Rack via an e-mail
Seller agrees to sell Roof Rack and a price is agreed via an e-mail
Is that, or is that not, a BINDING contract?
The very highly qualified advice I have is that it IS!
Pete
04 March 2005, 12:56 PM
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Pete you're way off.
Consider for a moment you decide to sell your car. I make you a reasonable offer, say £50 for a wagon (), and you accept it. Say it's done on here, with 5,000 witnesses. Say you then find out your mx-5 has rotted away over the winter and you need the Scooby still. I might whinge about it but there's nothing I could do.
Consider for a moment you decide to sell your car. I make you a reasonable offer, say £50 for a wagon (
), and you accept it. Say it's done on here, with 5,000 witnesses. Say you then find out your mx-5 has rotted away over the winter and you need the Scooby still. I might whinge about it but there's nothing I could do.
04 March 2005, 01:01 PM
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Originally Posted by Jap2Scrap
Pete you're way off.
Consider for a moment you decide to sell your car. I make you a reasonable offer, say £50 for a wagon (), and you accept it. Say it's done on here, with 5,000 witnesses. Say you then find out your mx-5 has rotted away over the winter and you need the Scooby still. I might whinge about it but there's nothing I could do.
Consider for a moment you decide to sell your car. I make you a reasonable offer, say £50 for a wagon (
), and you accept it. Say it's done on here, with 5,000 witnesses. Say you then find out your mx-5 has rotted away over the winter and you need the Scooby still. I might whinge about it but there's nothing I could do. Without consideration a contract whilst formed is not enforceable.Thanks J2S for condensing an essay into a short paragraph
Paul
04 March 2005, 01:01 PM
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Pete/Paul - thanks for your comments, although I'm still no better off than when I started!! i.e. I don't know which of you is correct.
Anyone else out there in the legal profession who could abritrate?? Pete's summary in his recent post is correct, although I'm not sure on the conclusion of course, which was the point of my post.
Thanks again.
Anyone else out there in the legal profession who could abritrate?? Pete's summary in his recent post is correct, although I'm not sure on the conclusion of course, which was the point of my post.
Thanks again.