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

[drcy]

One thing for consideration. At the time of the sale, both the seller and the buyer thought it was the last touchdown pass. Possibly every bidder and watcher thought it was. And it is not a case where the seller lied or hid information. Both the seller and the buyer (and all the bidders) had the same information.

Sellers should be expected to use critical thinking and logic. However, one thing sellers should be expected to be be able to perfectly predict the future.

It's also worth noting that Tom Brady did announce his retirement on February 1.

[darkhorse9]

This ball may reach the infamy level of the Banksy painting that started shredding the moment the winning bid was announced.

The winner of that painting decided to keep it and now it's worth far more than it was at the time of the auction because of the story.

[Snapolit1]

The big word thrown around in every auction, and oft mocked here, is "extant". Which means surviving or still in existence. If someone represents that this is the highest graded copy extant, or the oldest signed contract extant, and a better one one if discovered tomorrow, have they made a misrepresentation? I don't think so. Not fraud, and I don't even seeing it possibly constitute negligence.

Originally Posted by drcy

One thing for consideration. At the time of the sale, both the seller and the buyer thought it was the last touchdown pass. Possibly every bidder and watcher thought it was. And it is not a case where the seller lied or hid information. Both the seller and the buyer (and all the bidders) had the same information.

Sellers should be expected to use critical thinking and logic. However, one thing sellers should be expected to be be able to perfectly predict the future.

It's also worth noting that Tom Brady did announce his retirement on February 1.

[nat]

Assuming he throws another TD, the copy was false when it was written. It's just that no one knew that at the time. (It didn't say "last TD pass so far".)

[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.

[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.

[Yoda]

Funny timing on this whole mess. Just a coincidence, I suppose.

[Deertick]

The only winner in all of this is the 1st underbidder.

[BobC]

Originally Posted by Deertick

The only winner in all of this is the 1st underbidder.

Don't forget the attorneys!

[Peter_Spaeth]

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.

An n of 1, but the judge on the Board sided with the seller.

[Snapolit1]

Originally Posted by Peter_Spaeth

An n of 1, but the judge on the Board sided with the seller.

The reason why many high profile contract claims become tort claims of course is that aggrieved parties frequently want to add a threat of punitive damages, which are ordinarily not recoverable in a contract case.

[BobC]

Originally Posted by Peter_Spaeth

An n of 1, but the judge on the Board sided with the seller.

Peter,

What does that mean, "An n of 1"?

Also, what judge are talking about?

[Peter_Spaeth]

Originally Posted by BobC

Peter,

What does that mean, "An n of 1"?

Also, what judge are talking about?

It means it's not a statistically significant sample, just one example.

The one I called Judge Frank in my post of course, Fank Wakefield.

[BobC]

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.

A judge, or a jury? I would think this more likely would end up a jury trial. In which case, talking to and trying to convince a panel of jurors your position is correct would be much different than trying to sway the opinion of a single judge who is thinking much more about all the legal nuances and specific laws than a juror ever would. Were I the seller/AH, if the question came up about the description and how the AH should have mentioned the possibility of Brady un-retiring, I wouldn't hesitate to look the jury in the eye and ask if any of them didn't whole-heartedly also believe he had retired for good as well, when he made his retirement announcement.

Also, the third sentence of your fourth paragraph, didn't you mean to say a judge would have to find it "unreasonable", not "reasonable", to expect a 45-year-old quarterback to suddenly un-retire if the AH/seller were to have a chance to prevail? That way it isn't as easy to argue the AH description was misleading and inaccurate, and therefore the buyer should be let off the hook for completing the transaction they entered into, via what I'm guessing will otherwise be considered a binding contract under applicable state laws.

Once again, I think the issue would ultimately come down to when, under the applicable state laws, is the auction/sale to be considered finalized and binding/enforceable under the contract terms, and the liability and risk of the football pass to the auction winner.

Also, go back to paragraph two of my Post #112, and tell me if you still think a judge would side with the buyer and allow them to get their money back in that particular case. Based on what you're saying above, you seem to feel it doesn't matter when the change in the historical significance of the football occurs. Just that if it eventually occurs the original auction description is now wrong, and therefore the auction winner should be entitled to back out of the deal.

[Snapolit1]

Originally Posted by nat

Assuming he throws another TD, the copy was false when it was written. It's just that no one knew that at the time. (It didn't say "last TD pass so far".)

It was 100% accurate when written. And it's 100% true today.