Sometimes, examples are needed to help explain the law.
I bought a 10,000 card collection a few years back that included cards from different sports cards from the 60s thru the 80s. Most of the cards were in fair to good condition except that the 80s were all near mint. One card was the 84 fleer Don Mattingly RC, which although not rare or pricy, is one of my favorite 80s cards. I was ecstatic to see that the card’s corners were razor sharp and the centering was perfect. However, upon close inspection, I saw a very small indentation that looked like the card had been stabbed by a ball point pen. Fortunately, the indentation was not very deep.
Well, I instantly thought that if I applied a tiny bit of water to the hole and then some pressure, I could push out the indentation. Sure enough, it worked. Using a 10x loop, I looked at the area where the hole had been. There was no evidence a hole had been there.
So was this act a “alteration?” I think the answer is yes. However, if I sold that card, should I have to disclose what I did? That’s a harder question. Under the UCC, I must be honest in fact, so my statements to a potential buyer must be true. Next, I must use good faith. That means beside honesty, I must be fair and reasonable, and have a genuine belief that I am acting in good faith.
In the case of the Mattingly card, I do not feel that I must disclose what I did to the card. First, the UCC has no duty to disclose in this case. Second, as long as I believe that I am acting fairly and reasonably under the circumstances, there is no harm.
In my opinion, I am acting fairly and reasonably even if I don’t disclose the previous indentation. There is no evidence that the indentation was ever there. It was extremely small to begin with. Also, if a very small dent (on an expensive car) is pulled / pushed out, I’m not sure the seller would feel a need to disclose that. Finally, what would be the industry standard for a situation like this? I’m not sure, but I would bet many hobbyists do this at some point, and as long as the card’s value is not impacted, I’m not sure anyone would care.
So this is an example where my subjective belief would be examined, and I don’t think anyone could find that I acted in bad faith here. However, I understand that these issues are not black and white, so I’m sure some would disagree with me.
The key is that I can make a decent subjective argument for why I believe I have acted in good faith, and since subjective intent typically is a low bar, I believe I have met it here.
Every situation / legal issue is fact intensive, and that’s why lawyers must hear all the facts before drawing any conclusions.
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