B/S/T Etiquette

[OhioLawyerF5]

Originally Posted by gregndodgers

FACTS

A member posted that he had “a few pre-war cards available for sale. Prices are listed below, PayPal (F&F preferred) or Venmo accepted.” This person then provided a description of each card, the sale price, and a photo of each card.

LAW

“An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.”Restatement Second of Contracts § 24

“An invitation to treat is an expression of willingness to negotiate. A person making an invitation to treat does not intend to be bound as soon as it is accepted by the person to whom the statement is addressed.”
Burrows, A. (2009) [2007]. "Offer and Acceptance". A Casebook on Contract (2nd ed.). Portland, Oregon: Hart Publishing. p. 5.

ANALYSIS

In this case, the net54 member who initiated the sale of several cards showed a willingness to enter into a bargain (I.e. an agreement) when he stated he had some cards for sale and then provided essential terms such that any other member who decided to purchase them would believe that his assent (i.e. acceptance) to that bargain would close the deal (i.e. bind the two parties) in the sale of certain card or cards. Hence, the member who initiated the sale with his B/S/T post made an offer that was accepted by another party. A third member believed that the offeror (I.e. the seller) had engaged in some type of bias against him, but the seller explained that he had sold the cards to the first party who assented to the offer. This scenario outlines basic contracts 101, and once another party assented to the offer, the deal was closed such that the two parties were bound in contract and hence no third party who manifested their assent later could also accept because there can only be one acceptance per the second restatement.

My initial post on this matter was mainly in response to two statements I had read regarding this situation. First, it was said that the seller could choose who to sell to. However, as I have shown, the second restatement does not allow that. Once there has been a valid offer and a valid acceptance (as was the case here), the sale was binding. Next, it was stated that the seller had not made an offer and instead had made an “invitation to treat,” which is an invitation to enter negotiations (on the essential terms of the sale.). In my opinion, the seller here did not intend to enter negotiations. Rather, he wanted another party to assent to the deal (I.e. accept the essential terms) without any further negotiations on essential terms.

Anyway, this is my position from a legal perspective. If Leon has other rules or sees it different, than that’s his prerogative.

EDIT: others may disagree with this opinion, and that’s fine. I don’t take it personally. The law is complex.

It's literally the first day of contracts class in year 1 of law school. Those sections you quoted are taught, and then the professor proposes the scenario where a seller advertises an item for a specific price with terms of sale. The professor then asks a student if a contract is made when the buyer agrees to buy it for that price. Of course, the student takes your position, and the professor quickly says they are wrong and introduces the cases I cited. Every law student's mind is blown, and those of us who paid attention never forget it. Happens this way in every law school.

The case law simply makes it clear that the common understanding of offer isn't applied the way you are reading the restatement when it comes to advertisement for sale. It takes extraordinary circumstances and CLEAR statements of intent to be bound by the advertisement to overcome the seller's right to choose whether to enter into contract with a specific person.

I get that lawyers try to advise people to be on the safe side. But this is an area of law that is clear and well-settled. Your interpretation of the law on this point is simply not how it plays out in the courts. For very good reason. We can't have sellers bound to contracts with any sheister who respinds to their ad when the seller has never even communicated with the buyer prior to entering into contract. That causes terrible results for sellers and would stifle the free flow of goods in the market.

I'm sorry, normally there is room for debate on legal issues. On this, there is none. Putting terms of sale is an ad is NOT akin to making a clear statement you intend to be contractually bound to the first to agree to those terms. It just isn't.

Edit to add: Every contracts professor also teaches to never cite to the restatement if there are cases on point. The restatement is the most broad brush definitions and never takes specific facts into account. Whereas the cases will provide the law on fact patterns. And the cases on fact patterns like this one, an internet ad containing terms of sale of an item sold by a private seller, follow the "invitation to treat" rule every time.

I do find it interesting that you cited to Restatement 24, but conveniently did not post Restatement 26. It starts off by saying "The rule stated in this Section is a special application of the definition in § 24." Then goes on to say "Advertisements of goods by display, sign, handbill, newspaper, radio or television are not ordinarily intended or understood as offers to sell. The same is true of catalogues, price lists and circulars, even though the terms of suggested bargains may be stated in some detail. It is of course possible to make an offer by an advertisement directed to the general public (see § 29), but there must ordinarily be some language of commitment or some invitation to take action without further communication." Illustration 1 demonstrates this point by saying "A, a clothing merchant, advertises overcoats of a certain kind for sale at $50. This is not an offer, but an invitation to the public to come and purchase. The addition of the words “Out they go Saturday; First Come First Served” might make the advertisement an offer." THIS is the type of language required to make an advertisement listing an offer. If the post doesn't say "First come, first served" or something to that effect that demonstrates an intent to be bound by an offer to whomever is first, no offer is made.

I wonder why you didn't cite that section. Hmm.