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Originally Posted by Peter_Spaeth
I see this as a frustration of purpose case, not a misrepresentation case or meeting of the minds case. The problem here is something that happened AFTER formation. The issue is whether performance is now excused.
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Assuming Tom Brady does throw another touchdown in the NFL, is the statement that the football is the "last touchdown of Tom Brady's career" true of false? It is false. Maybe not intentionally, but it is false. Had Leland not made that written claim in the listing, and simply said the football was "the last touchdown of the 2022 season before Tom Brady announced his retirement," then everything Leland said would have been factual and uncontradicted. But, in this case, Leland affirmatively stated it was the last touchdown of Tom Brady's career. Was the statement material to the sale? Clearly. So, if the entire contract is premised on this football being the last touchdown pass of Brady's career, and Leland represented it as such in the listing, the fact that it is not the last touchdown of Tom Brady's career precludes Leland from delivering the exact consideration represented.
A good lawyer for Leland would have put an asterisk after "career" and included a note at the bottom to the effect of: "Leland does not control nor make any claim as to the possibility that Tom Brady may some day return to play in the NFL and the representations in this listing are limited to past events and Tom Brady's representation at the conclusion of the 2021-2022 season that he has retired from the NFL. Any bidder on this item acknowledges and agrees that any future action by Tom Brady, including but not limited to returning to the NFL, will not void or alter the obligation to pay for this item."