Opinions on a transaction issue

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Posted By: Todd Schultz

Hope everything works out well in the end.

Adam, I must disagree with your evidence analysis. Fundamentally, the trier of fact is free to disregard whatever the seller says--they may conclude he is a liar. If they do, they have evidence that the card was never mailed. They also have inferences-- from the buyer's testimony that the card never arrived, and from the fact that the seller relisted the card later, that it was never sent. This is all admissible. Because buyer needs only prove that he performed (paid) and seller did not (card never received), he has met his burden of establishing a prima facie case (leaving aside the uniqueness and irreparable harm elements required for specific perfomance and/or injunctive relief).

To embrace your analysis, a seller would have a hard time ever being in the wrong--he could just testify that he performed (mailed the card) and the buyer would not be able to prove otherwise. I disagree that the law places the parties in those positions as a matter of evidence.