Would you follow through and pay? Brady's last TD

[Peter_Spaeth]

Originally Posted by oldjudge

You can pay or spend attorney’s fees when you get sued and then pay. Sounds like either way the buyer is screwed.

My first reaction would be to consider the doctrine of impossibility/frustration of performance/purpose == Leland's cannot now deliver the item as represented due to changed circumstances. I'd have to think about it more and research. There are classic cases called the coronation cases -- people rented hotel rooms on the assumption a coronation would be on a certain date, but then the date changed. Or some similar fact pattern. Vague memory from first year contracts. Can't remember which way they came out.

[Exhibitman]

Originally Posted by Peter_Spaeth

My first reaction would be to consider the doctrine of impossibility == Leland's cannot now deliver the item as represented due to changed circumstances. I'd have to think about it more and research. There are classic cases called the coronation cases -- people rented hotel rooms on the assumption a coronation would be on a certain date, but then the date changed. Vague memory from first year contracts.

It's not really impossible; they can deliver the item. More like force majeur. The value of the item was destroyed by events beyond anyone's control or consideration.

[Peter_Spaeth]

Originally Posted by Exhibitman

It's not really impossible; they can deliver the item. More like force majeur. The value of the item was destroyed by events beyond anyone's control or consideration.

Frustration of performance/purpose then. Force majeure feels not quite right but similar notion. Do you remember the coronation cases from law school? I have to refresh my memory.

[Shoeless Moe]

Technically it is what the title says it is, and will be for the next 6 months.

Buyer has to pay

[Peter_Spaeth]

Originally Posted by Shoeless Moe

Technically it is what the title says it is, and will be for the next 6 months.

Buyer has to pay

No, it's now his latest/most recent TD, not final in the sense anyone would understand the word as it's being used in this context. The buyer is not getting what he bargained for.

[Snapolit1]

Lelands will cancel the sale and get a shit ton of free positive publicity.

[Mark17]

Originally Posted by Snapolit1

Lelands will cancel the sale and get a shit ton of free positive publicity.

I think so too. From my experiences with them, they will do the right thing.

[Tyruscobb]

Originally Posted by Peter_Spaeth

No, it's now his latest/most recent TD, not final in the sense anyone would understand the word as it's being used in this context. The buyer is not getting what he bargained for.

The written description says it’s Brady’s final career touchdown. This is currently a true statement. Brady could change his mind before the season starts and re-retire. Maybe a bus hits Brady while he is crossing the street. The description was accurate based on all available information, and it technically still is Brady final career TD.

Remember when Jim Palmer was coming out of retirement (as a HoF) until he decided to stay retired? The buyer also assumed the risk that Brady would stay retired. The buyer is not an innocent rube in the woods. There was always a chance Brady came back. Heck, maybe this exact risk is why the ball went for $500k and not $750k or $1M.

A person with $500k to spend on a football is likely an educated and sophisticated buyer. He/she got exactly what he/she bargained for and knew the risks - that Brady could un-retire - going into the auction. Assumption of the risk.

[Peter_Spaeth]

Originally Posted by Tyruscobb

The written description says it’s Brady’s final career touchdown. This is currently a true statement. Brady could change his mind before the season starts and re-retire. Maybe a bus hits Brady while he is crossing the street. The description was accurate based on all available information, and it technically still is Brady final career TD.

Remember when Jim Palmer was coming out of retirement (as a HoF) until he decided to stay retired? The buyer also assumed the risk that Brady would stay retired. The buyer is not an innocent rube in the woods. There was always a chance Brady came back. Heck, maybe this exact risk is why the ball went for $500k and not $750k or $1M.

A person with $500k to spend on a football is likely an educated and sophisticated buyer. He/she got exactly what he/she bargained for and knew the risks - that Brady could un-retire - going into the auction. Assumption of the risk.

The issue in my mind doesn't depend on Leland's being inaccurate or at fault. The notion of frustration of purpose is a fairness doctrine based on changed circumstances beyond either party's control. I don't think assumption of risk is a contract concept so much as a tort concept, but it's been a while. Anyhow, your argument is of course the one I would make if on Leland's side, and it's a great problem that would fit well someday in a law school class.

[Smarti5051]

The defense points to Exhibit A, first sentence of description: "If there is any item in the field of sports collectibles that needs no embellishment, it is this historic piece: the final touchdown ball of Tom Brady’s career."

Though represented as fact that the ball was the final touchdown of Tom Brady's career, his final touchdown in fact occurred in 2023. As such, whether intentional or innocent, the factual representation is false. This representation was material to the contract, as the plaintiff notes the football is a "historic piece" requiring no embellishment, because it was represented to be the final touchdown ball of Tom Brady's career. Moreover, whether known or unknown to the parties at the time of the auction, Tom Brady had, in fact, been in negotiations with the Tampa Bay Buccaneers to extend his career prior to the conclusion of the auction. As such, a material ambiguity concerning the consideration for defendant's promise to pay precludes a meeting of the minds as to what was being purchased, and an enforceable contract was not forged between the parties.

I would liken this to a Honus Wagner card that sells at auction for $2 million and is later deemed to be fake by a third party authenticator. At the time of the sale, the auction house and the buyer (and perhaps the seller) all believed the card was an original. The contract was premised on the card being an original, authentic Honus Wagner card. In fact, and unknown to all parties, the Honus Wagner card was not what the parties had bargained for. So, the buyer would be entitled to void the contract, even though the card that was listed could technically be provided to the buyer.

Common sense will likely rule the day on this one.

[Peter_Spaeth]

Originally Posted by Smarti5051

The defense points to Exhibit A, first sentence of description: "If there is any item in the field of sports collectibles that needs no embellishment, it is this historic piece: the final touchdown ball of Tom Brady’s career."

Though represented as fact that the ball was the final touchdown of Tom Brady's career, his final touchdown in fact occurred in 2023. As such, whether intentional or innocent, the factual representation is false. This representation was material to the contract, as the plaintiff notes the football is a "historic piece" requiring no embellishment, because it was represented to be the final touchdown ball of Tom Brady's career. Moreover, whether known or unknown to the parties at the time of the auction, Tom Brady had, in fact, been in negotiations with the Tampa Bay Buccaneers to extend his career prior to the conclusion of the auction. As such, a material ambiguity concerning the consideration for defendant's promise to pay precludes a meeting of the minds as to what was being purchased, and an enforceable contract was not forged between the parties.

I would liken this to a Honus Wagner card that sells at auction for $2 million and is later deemed to be fake by a third party authenticator. At the time of the sale, the auction house and the buyer (and perhaps the seller) all believed the card was an original. The contract was premised on the card being an original, authentic Honus Wagner card. In fact, and unknown to all parties, the Honus Wagner card was not what the parties had bargained for. So, the buyer would be entitled to void the contract, even though the card that was listed could technically be provided to the buyer.

Common sense will likely rule the day on this one.

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.

[Smarti5051]

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.

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."

[BobC]

Originally Posted by Smarti5051

The defense points to Exhibit A, first sentence of description: "If there is any item in the field of sports collectibles that needs no embellishment, it is this historic piece: the final touchdown ball of Tom Brady’s career."

Though represented as fact that the ball was the final touchdown of Tom Brady's career, his final touchdown in fact occurred in 2023. As such, whether intentional or innocent, the factual representation is false. This representation was material to the contract, as the plaintiff notes the football is a "historic piece" requiring no embellishment, because it was represented to be the final touchdown ball of Tom Brady's career. Moreover, whether known or unknown to the parties at the time of the auction, Tom Brady had, in fact, been in negotiations with the Tampa Bay Buccaneers to extend his career prior to the conclusion of the auction. As such, a material ambiguity concerning the consideration for defendant's promise to pay precludes a meeting of the minds as to what was being purchased, and an enforceable contract was not forged between the parties.

I would liken this to a Honus Wagner card that sells at auction for $2 million and is later deemed to be fake by a third party authenticator. At the time of the sale, the auction house and the buyer (and perhaps the seller) all believed the card was an original. The contract was premised on the card being an original, authentic Honus Wagner card. In fact, and unknown to all parties, the Honus Wagner card was not what the parties had bargained for. So, the buyer would be entitled to void the contract, even though the card that was listed could technically be provided to the buyer.

Common sense will likely rule the day on this one.

All due respect, I don't think your Wagner card example is the same thing as what is going on here. Now if it was later found that the football turned out to NOT be the actual football Brady threw for that last TD, then I think your point has some merit.

I know we have lawyers on here who are weighing in, but they are just speculating as well. Think of it this way, under whatever state's law is applicable, when is the actual transaction considered binding? I'm assuming it is when the bid is made, accepted, and the auction officially ended. Now there may be some wording in the contracts/terms of agreement that stipulate that the transaction isn't finalized and binding on both sides tlll the payment is made, and the item is received by the buyer, or maybe something else. But I really don't think that will end up being the case.

And what would be the result if things were reversed? Assume Brady hadn't announced his retirement yet, and was fully expected to play at least one more season, and throw many more touchdowns. The football was auctioned off and won by someone thinking they had just won a Brady thrown TD football. But then the day after the auction ended and the winner was announced, but before they paid the money to Leland's, Brady shocks everyone and suddenly retires, now making that the football Brady threw for his last career TD. So the consigner immediately calls Leland's and tells them to cancel the auction and pull the football. So now what happens?

And remember, this isn't like Ebay that merely offers the platform for buyers and sellers to get together. Leland's was specifically hired by, and working for, the consigner, not the buyer/auction winner. I would think they are obligated to look out for the consigner's best interests, and fulfill their contract with them.

Quite frankly, if Leland's decides to just cancel the auction and let the auction winner off the hook for some good publicity or whatever reason, they would immediately, and permanently, be removed from my consigning anything to them, ever!

[Peter_Spaeth]

Yep. This is at least the right framework.

Closely related to impossibility, frustration of purpose applies when a change in circumstances makes one
party’s contract performance worthless to the other party. See Restatement (Second) of Contracts § 265.

The defense commonly contains three elements:
1. the party’s principal purpose in making the contract is frustrated;
2. an event occurred whose non-occurrence was a basic assumption underlying the contract; and,
3. the party invoking the defense was not at fault.

The validity of the defense often turns on the first element. The principal purpose of a contract must be
something which is so completely the basis of the contract that, without it, the transaction between the
parties would make little sense. Thus, while impossibility is primarily concerned with “the nature of the
event and its effect upon performance,” frustration is concerned with “the impact of the event upon the
failure of consideration.”

The famous “Coronation Cases” provide a royal example of frustrated purpose. In Henry v. Krell, a British
court excused a defendant from his promise to pay fifty pounds to watch the coronation parade of King
Edward VII from the plaintiff’s flat when the coronation was abruptly cancelled due to the King’s health.
Krell demonstrates that frustration is not substantial when the disadvantaged party merely stands to gain
less than the bargained-for performance. Rather, the frustration must be so total, and caused by an event
so wildly unpredictable and outside the scope of either party’s reasonable expectations, that it would be
unfair to enforce the terms of the contract. The Second Circuit, for example, limits the doctrine to “virtually
cataclysmic, wholly unforeseeable events.”