[Snapolit1]

I guess that's the drawback of being a tort lawyer for 35 years. Also explains my B- in Contracts as a 1L.

Originally Posted by Smarti5051

Focusing on questions of "fraud" or "negligence" are misplaced. Those are typically used in the context of a tort. Contracts is a completely different animal and treated differently. You can have two parties acting reasonably, competently and honestly and the result can be that no contract was formed.

So, it comes down to what were the parties contracting for? Leland will argue that the contract was for a football. It described the football with enough specificity for all parties to know what it was and where it came from. Any subsequent facts that could impact the value of that football are irrelevant, as they simply have to deliver the football pictured and described in their listing. The argument will continue that the bidder knew exactly what he was bidding on, and will get exactly what he bid on. What he underestimated was the possibility that a subsequent event could diminish the value of his purchase, but that is a common risk of buying a collectable.

The auction buyer will argue that it was not just buying the football described in the auction. It was buying the express representation of the seller that the item it was buying was the "historic final touchdown of Tom Brady's career." Leland said it was the "last ball," and the price reflected it was the "last ball." Now, circumstances prevent the "last ball," as represented, from being delivered. Thus, what was specifically agreed to does not exist and no contract exists.

On this board, there definitely seems to be a split. My sense is a judge will side with the buyer. For the AH to prevail, the judge would need to accept that it was reasonable for the parties to anticipate a reasonable likelihood a 45 year old retired football player would un-retire and return to the NFL. While there have been instances of players who retired fairly young and returned to various professional leagues, the number of 45 year-old athletes who have retired and come back to the NFL as a player prior to March 10, 2022 might very well be zero. Based on this fact, was it reasonable for the contracting parties to operate with the understanding Tom Brady was and would remain retired? I believe a judge would say yes. If that was the operating belief of all parties and that belief was the underlying basis for their agreement, and that belief was ultimately wrong, then I don't think there was an enforceable agreement entered into between the parties.