"Yes, Dionne!!! At long last, I finally know the way!!!!!!!!!!!!"

Attachment 652631

As a lawyer who has negotiated multimillion dollar deals and is pretty well versed in contract law, I have to disagree with some of the posts on this thread. If a post is made (such as the one made here) that advertises specific cards for sale and that post includes the material terms of the sale, which besides a description of the item for sale, typically includes the sale price including shipping and handling, and the method of payment, then that is the offer, and the first to accept those terms is the rightful buyer and has, in layman’s terms, “first dibs.” Absent a good reason, an individual cannot simply choose whom to sell to.

Greg

In a BST post, who is the offeree? For an offer to be binding upon acceptance, you need an offeree, as I understand it. Otherwise, like an advertisement, it's an invitation to treat/invitation to bargain. The specificity of the post is not the point.

I'll post the case law when I get a chance. I'm going to need to see your citations, because that is most definitely not the general principle of contract law. Only if there is a specific local statute that modifies the common law will that be the case, or if there is a specific term in the listing stating an intent to sell to the first taker. There is no "meeting of the minds" in your example that is required for a contract. Posting a listing to a broad, general audience does not put the seller in privity of contract with everyone who reads it. The buyer must express their intent to contract, and the seller must agree to contract with that specific person. In your example, the seller has never entered into contract with that buyer, and no contract was formed.

So how does this work then?????
 

"eBay sellers have control over who can bid on and buy their items. You can block individual buyers or set buyer requirements based on specific criteria.

If you’ve had an issue with a buyer and don’t want them to purchase or bid on your items, you can add them to your Blocked buyers list. They'll be unable to place bids or buy from you until you remove them from the list."

OK, OK, OK, but what if you were an Orangutan that really liked mangoes, but the Mars probe finds evidence of water ice somewhere other than the polar caps after I ran a red light, what then???

Here's some of the landmark cases:

Fisher v. Bell (1961) and Partridge v. Crittenden (1968) set forth the longstanding principle that posting or advertising an item for sale is an "invitation to treat" and not an "offer to sell."

The cases you are referring to are Carlill v Carbolic Smoke Ball Co (1893) and All Phases of Services Ltd v Johnson (2014). They suggest that what is usually an invitation to treat can become an offer to sell IF the advertisment clearly indicates and intent to be bound, and the intentions of both parties are clear and agreed upon, demonstrated through the conduct of the parties involved.

So as I said, posting a card for sale, with a price, is a invitation to treat and not an offer UNLESS the listing clearly states that the first person to accept will get the card.

thx phil...the bst used to be an incredible place back in the day!!!

Well, I don't know law and am not a lawyer, but that is not what this private forum's rules are. First dibs is almost always the case, but not always. Sellers here can sell to whomever they want to, or don't want to. They can even back out of a deal they said ok to. (as long as they don't make it a habit). Pretty simple.
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I have been on both sides of this dilemna on the bst. There have been atleast 2-3 occasions where I underpriced cards significantly and they sold quickly...and I honored the prices as it was MY FAULT.

Additionally I recall a time where I won an autographed pete rose kahns weiner card on the auction page here...at a bargain price. The seller attempted to reneg as he was not happy with the selling price. The net54 goonsquad backed me up and the seller was "encouraged" to honor the deal.

50 shades of grey?

This post is contrary to the Uniform Commercial Code and its distinction between a binding sales contract and an "invitation to offer."

Good. An auction is completely different. If anyone backs out of a sale of an auction item here they, at least, won't be able to use the BST areas any longer, if not banned altogether.

Hmm,
Seems like there's little to no reason for listing something on B/S/T with a "listening to offers" request when you can easily put whatever number you want and then just change your mind or delay to see if something better comes along. Then again I guess you can do that anyway, even if you start with a defined price. Makes me wonder what is meant by the term etiquette as applied to the net54 "marketplace".

As a lawyer, I stand by my post 100%. As a collector, I stand by Leon 100%.

Leon:

Can buyers also back out of a deal they agreed to?

Yes, at Net54baseball they can do it 1 time, as stated above. In over 20 yrs I don't remember it happening more than maybe a few times in many thousands of transactions (that I know about). So, it's sort of moot but yeah, as I said above, I think everyone gets 1 grace situation where they get buyers or sellers remorse. BUT, I am not a lawyer and this only pertains to the rules on this forum. If there is some law that overrides this, then I guess anyone can sue anyone in the US...I think almost all of us wish, at one time or another, we didn't do a deal we just did. I think it's nice to know you can make a mistake and not be banned. I would like to know about it and think I hear about most of that kind of stuff. A few members have been banned for not following through in situations but those were one-offs.
IF it hasn't happened, consider yourself lucky. And I don't think it's the worst thing in the world to call off a deal. It's not good but not the end of the world.

That said, I keep my word on all of my deals, but I do remember a situation where someone bought something off of my website. It hadn't been updated in a long time and 1 card was way, way off. So yeah, I called that one off as I wasn't going to eat about $7000....

As a lawyer, I stand by mine 100%. There is no court that will find a post of a card for sale with a price and how payment is accepted, that doesn't express an intent to be bound to the first to accept the offer, constitutes a binding offer on the part of the seller. I provided you the most significant cases on the issue, including those that support the proposition that an invitation to treat can become an offer under the right circumstances. And none of them support your claim. Like I said, provide a case that provides otherwise. Those cases are very fact specific. And these aren't those facts.

I have zero desire to spend any more time on this issue. However, as a final statement, if anyone deviates from what I have stated above, they are inviting a lawsuit, particularly when high dollar value cards are involved.

Habeas corpus
 

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The real lesson is to just not trade or sell cards to lawyers :D

Who told you to put the balm on? Do you even know what a balm is?

Bravo Greg.:D

Anyone with a 50 dollar filing fee can file a lawsuit. There is zero percent chance a court will find in their favor under the facts presented here. You are simply wrong on the law. Wouldn't be the first lawyer I've encountered who is wrong and can't support their position by anything other than a "because I said so" argument. :rolleyes:

On the other hand, I provided the relevant case law, quoted the standards, and showed how they don't apply at all to this situation.

Well given the nature of this forum I would effectively be receiving both offers at the same time. Moreover given the inefficiencies introduced by living my life and other people living theirs, there can be no rational expectation that everyone sees my offer at the instant I post it. Therefore I would choose the player's son instead of the known flipper. Quite simply, I'd have the very good reason:

But I would make my decision immediately at the time choosing from among the PM's I'd received.

:)

Good to know it isn't quite as cold in Canada as I thought.

Why is it then, that thousands upon thousands of real estate transactions settle at amounts greater than the listing price? I'm sure many of them include the material terms of sale (as-is, up-front deposit, balance at close, buyer pays normal buying fees, title transfer, etc.)

Some real estate transactions involve millions of dollars. Why don't we hear of widespread lawsuits, and why would the transaction price ever be higher than the list price? According to you, first buyer to offer full ask gets it, period. No need for him to go above that figure, and futile for a subsequent offer.

Or does the law trteat real estate as a separate animal (and if so, why?)

Because he doesn't understand the difference between including terms of sale in your ad and including terms clearly evidencing an intent to be bound by the sales listing. Those are vastly different things.

For a multitude of reasons, one cannot compare the contractual process, including the legal rights and duties, of selling a home to selling a baseball card. Obviously, a home and any sale of a home are much more complex transactions. Hence, an MLS listing is generally not an offer but information about a home that is treated as an invitation to make an offer.

Look, you guys can do whatever you like. I’m simply offering my legal opinion that you can accept or not. LoL.

Interesting how different your legal opinion is from another lawyer also posting in this thread.

And how his hasn't been supported by any statutes or case law.

Another reason I think your position might have more validity than his is the concept of time. For instance, let's say someone offers a Dick Allen rookie card at a certain price. It goes unsold for a few days, then he's elected to the Hall of Fame, and suddenly several offers come in. Would the seller be compelled to sell at his listed (pre HOF) price?

When I was a kid, I got a coin collector magazine. One of the ads offered silver Franklin half dollars at a certain price. I ordered 10 of them, but had my check returned with a note saying the price had gone up. Again, that scenario seems to fit with your position rather than that of the other lawyer.

Something can be offered for sale at a stated price, but it isn't a contract until both parties agree it's a mutually agreed upon deal.

Did anybody see the orangutan drink the polar cap water and run the red?

There are of course countless issues where courts have reached different conclusions, or different jurisdictions have different rules, but this isn't one of them, it's pretty much Contracts 101.

FACTS

A member posted that he had “a few pre-war cards available for sale. Prices are listed below, PayPal (F&F preferred) or Venmo accepted.” This person then provided a description of each card, the sale price, and a photo of each card.

LAW

“An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.”Restatement Second of Contracts § 24

“An invitation to treat is an expression of willingness to negotiate. A person making an invitation to treat does not intend to be bound as soon as it is accepted by the person to whom the statement is addressed.”
Burrows, A. (2009) [2007]. "Offer and Acceptance". A Casebook on Contract (2nd ed.). Portland, Oregon: Hart Publishing. p. 5.

ANALYSIS

In this case, the net54 member who initiated the sale of several cards showed a willingness to enter into a bargain (I.e. an agreement) when he stated he had some cards for sale and then provided essential terms such that any other member who decided to purchase them would believe that his assent (i.e. acceptance) to that bargain would close the deal (i.e. bind the two parties) in the sale of certain card or cards. Hence, the member who initiated the sale with his B/S/T post made an offer that was accepted by another party. A third member believed that the offeror (I.e. the seller) had engaged in some type of bias against him, but the seller explained that he had sold the cards to the first party who assented to the offer. This scenario outlines basic contracts 101, and once another party assented to the offer, the deal was closed such that the two parties were bound in contract and hence no third party who manifested their assent later could also accept because there can only be one acceptance per the second restatement.

My initial post on this matter was mainly in response to two statements I had read regarding this situation. First, it was said that the seller could choose who to sell to. However, as I have shown, the second restatement does not allow that. Once there has been a valid offer and a valid acceptance (as was the case here), the sale was binding. Next, it was stated that the seller had not made an offer and instead had made an “invitation to treat,” which is an invitation to enter negotiations (on the essential terms of the sale.). In my opinion, the seller here did not intend to enter negotiations. Rather, he wanted another party to assent to the deal (I.e. accept the essential terms) without any further negotiations on essential terms.

Anyway, this is my position from a legal perspective. If Leon has other rules or sees it different, than that’s his prerogative.

EDIT: others may disagree with this opinion, and that’s fine. I don’t take it personally. The law is complex.

Kind of like
 

This whole thing reminds me of those 1950s Sci Fi movies where the giant creatures kick the hell out of each other while people hide in the bushes.... let me know when I can come out safely LOL

It's literally the first day of contracts class in year 1 of law school. Those sections you quoted are taught, and then the professor proposes the scenario where a seller advertises an item for a specific price with terms of sale. The professor then asks a student if a contract is made when the buyer agrees to buy it for that price. Of course, the student takes your position, and the professor quickly says they are wrong and introduces the cases I cited. Every law student's mind is blown, and those of us who paid attention never forget it. Happens this way in every law school.

The case law simply makes it clear that the common understanding of offer isn't applied the way you are reading the restatement when it comes to advertisement for sale. It takes extraordinary circumstances and CLEAR statements of intent to be bound by the advertisement to overcome the seller's right to choose whether to enter into contract with a specific person.

I get that lawyers try to advise people to be on the safe side. But this is an area of law that is clear and well-settled. Your interpretation of the law on this point is simply not how it plays out in the courts. For very good reason. We can't have sellers bound to contracts with any sheister who respinds to their ad when the seller has never even communicated with the buyer prior to entering into contract. That causes terrible results for sellers and would stifle the free flow of goods in the market.

I'm sorry, normally there is room for debate on legal issues. On this, there is none. Putting terms of sale is an ad is NOT akin to making a clear statement you intend to be contractually bound to the first to agree to those terms. It just isn't.

Edit to add: Every contracts professor also teaches to never cite to the restatement if there are cases on point. The restatement is the most broad brush definitions and never takes specific facts into account. Whereas the cases will provide the law on fact patterns. And the cases on fact patterns like this one, an internet ad containing terms of sale of an item sold by a private seller, follow the "invitation to treat" rule every time.

I do find it interesting that you cited to Restatement 24, but conveniently did not post Restatement 26. It starts off by saying "The rule stated in this Section is a special application of the definition in § 24." Then goes on to say "Advertisements of goods by display, sign, handbill, newspaper, radio or television are not ordinarily intended or understood as offers to sell. The same is true of catalogues, price lists and circulars, even though the terms of suggested bargains may be stated in some detail. It is of course possible to make an offer by an advertisement directed to the general public (see § 29), but there must ordinarily be some language of commitment or some invitation to take action without further communication." Illustration 1 demonstrates this point by saying "A, a clothing merchant, advertises overcoats of a certain kind for sale at $50. This is not an offer, but an invitation to the public to come and purchase. The addition of the words “Out they go Saturday; First Come First Served” might make the advertisement an offer." THIS is the type of language required to make an advertisement listing an offer. If the post doesn't say "First come, first served" or something to that effect that demonstrates an intent to be bound by an offer to whomever is first, no offer is made.

I wonder why you didn't cite that section. Hmm.

Bst
 

Lets take it to a higher court

Agreed. I just don't get what his deal is. This very issue is pounded into every law student's head from day one. I mean, the professors use examples exactly like this one to make the point. This is an unambiguous issue. Pretending like extreme exceptions where a contract is found are the rule is just bad practice.

It's already been in the highest court. I cited those cases. He chooses to ignore them.

I'm looking for an invitation to trick or treat.

Mr October

Time for a card? Old Judge King Kelly! (Not mine, just a a quip based on discussion direction of this thread).

I've been looking for an excuse to post this bad boy!

Whoa, nice one!

Time for another Judge's ruling on this case

I have laid out my reasons for why it is my opinion that the seller here was making an offer to sell and not an invitation to treat (I.e. invitation to enter negotiations that could lead to a future sale). I will let the reader decide which position is correct, but in my mind, it is clear that the seller was making an offer that could be accepted by anyone who simply said “I will take it,” or something to that effect.

So the seller was making an offer here and not an invitation to treat. We do not need to read any cases from England to know that.

But you could maybe point to a single case to support your point. :rolleyes:

And interstingly, the "reasons" you laid out didn't address any of the actual legal authority I laid out for why your opinion is wrong. You conveniently ignore it, and post the completely wrong section of the Restatement on Contracts to support your position. All we got from you was "Trust me, I have negotiated multi-million dollar contracts." (Which if it matters, I work on multi-million dollar contracts on a daily basis myself). That appeal to authority is comical, because it doesn't show you know more about this situation. It shows you are out of touch with how courts deal with informal agreements made over the internet, because you spend your time dealing with contracts that tend to have significantly more formalities involved.

Apologies if this scenario was raised. If a guy has a card stickered on a table at a card show, and I walk up and say I'll take it, do we have a binding contract? Uh.... no.

I read some of the case law. It completely reinforced my prior understanding. It seems clear that absent unusual language or circumstances, an "offer" to the public not made to a specific individual -- such as an advertisement, display, catalog, price list, etc. -- is uniformly considered an invitation to treat, not a binding offer. The cases matter a GREAT deal.

I’ve won many cases in court without citing to case law. It’s not necessary when the rules are clear, and here the restatement supports my position. Also those cases you cited in support of your position are not on point AND they are from ENGLAND. Can you cite any U.S. cases that are on point? Doubtful. The reason is that this area of the law is not difficult.

What constitutes an “offer” in contracts is not one of the more difficult concepts to learn, but you seem to be struggling with it counselor.

Are you a lawyer?