You Are Guilty
Senior Member
Let's cut to the chase. The OP walks into your office and provides the details of this post. You taking the case? (More importantly, you taking it on contingency?)
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eBay seller unhappy about winning bid: won't sell.
- Thread starter LEE CARDHOLDER
- Start date
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Okay, let's throw out some givens in order for me to answer: (1) The seller breached the contract; (2) the items in question cost the buyer $3k more than the contract price when he bought them elsewhere, and would have cost him $3k more no matter where he bought them (i.e. the fact that he paid $3k more was reasonable).Let's cut to the chase. The OP walks into your office and provides the details of this post. You taking the case? (More importantly, you taking it on contingency?)
I'd advise the OP that he has a very strong case for $3k in damages, and that I'd take the case on an hourly basis. I would not take the case on a contingency fee basis (not because I would not be confident in the OP's case, but because my share of the winnings would only be about $1k). I'd further advise the OP that he should sue in small claims court because he'd end up paying more for my fee than the damages are worth.
Whether I would agree to represent the OP has nothing to do with the law and the likely outcome of the case, however.
You Are Guilty
Senior Member
While I'm not commenting on the underlying merits (or lack thereof, depending on who you side with in this one), this statement left me a little bewildered. Unless you are independently wealthy, or have seriously low rates, why wouldn't you select your cases based on their "likely outcomes"?
Like it or not, there is a correlation between how much "lawyer interest" there is in a claim and the claim's merits (or at least, the chances of "winning" a suit). It might not be the strongest correlation, or the most accurate, but it definitely exists.
Sorry, there is a miscommunication. I see that the sentence you quoted from me is ambiguous.
That sentence was meant to convey this: The legal method for determing the OP's damages is not affected by whether his case is attractive to lawyers.
You Are Guilty
Senior Member
Quite a different meaning. We now return to our regularly scheduled debate, already in progress.
What? You mean you're not going to ignore my clarification and then claim that I don't have the balls to admit that I was wrong? You're not going to attempt to 1-up me?
We now return to our regularly scheduled debate, already in progress.
Dude, don't you know forum etiquette?
Seriously, I wonder how many arguments/debates in here are due to nothing more than simple miscommunications.
You Are Guilty
Senior Member
You clearly didn't read Forum Rule 292-cc(b)(2) sub 1., in which it states you're only allowed one such reply per week, unless you're having a particularly bad day at the office, (in which case sub. 2 permits you up to three such replies).What? You mean you're not going to ignore my clarification and then claim that I don't have the balls to admit that I was wrong? You're not going to attempt to 1-up me?
Dude, don't you know forum etiquette?
Seriously, I wonder how many arguments/debates in here are due to nothing more than simple miscommunications.
Besides, while I have a wide range of interests in my life, I'm afraid your balls are not one of them.
PS: Since you're clearly referring to something here, a link would be nice so that you might look, you know, less crazy?
Oh, it's not worth digging through various threads trying to find the examples, but let's just say that some members here claim to know what certain posts mean better than the posts' author.
After thinking about this thread a bit, it seems that some members are confusing the principle behind negligence damages with the principle behind contract damages.
In negligence cases, damages are supposed to make the plaintiff whole, as if the tort never took place.
The early responses to this thread indicate a belief that in contract cases, damages are supposed to make the plaintiff whole, as if the contract never took place. That is not true, however. Damages in contract cases are supposed to make the plaintiff whole, as if the contract was never breached.
In negligence cases, damages are supposed to make the plaintiff whole, as if the tort never took place.
The early responses to this thread indicate a belief that in contract cases, damages are supposed to make the plaintiff whole, as if the contract never took place. That is not true, however. Damages in contract cases are supposed to make the plaintiff whole, as if the contract was never breached.
You Are Guilty
Senior Member
To throw some more gas on the fire, you have the issue of whether an online, ebay-like auction forms a binding contract. (Ignoring all the interstate problems of a small claims-level suit). What if the buyer, an extremely un-computer savvy user hits the wrong key thinking they would get more info on the product only to see the auction closed and find themselves the "winner"? Or reverse the roles where you have a seller who fails to click the correct check-box and now has an auction for a $3k item that has no protection against selling for $3 (although they intended to have such). Intent is still fuzzy.
(More importantly, even if it isn't at the time of the auction, it will be by the time it gets into a courtroom.
)The ebay cases I've seen have gone both ways on this issue, even in the same areas, so you're really taking your chances on filing a case like this since you have no real way to gauge which way the court will go (at least as a lawyer). For a pro se, it might not be such a big deal.
I've never seen a case that was thrown out because a court decided that online auctions in general do not form contracts. Can you share one?To throw some more gas on the fire, you have the issue of whether an online, ebay-like auction forms a binding contract. (Ignoring all the interstate problems of a small claims-level suit). What if the buyer, an extremely un-computer savvy user hits the wrong key thinking they would get more info on the product only to see the auction closed and find themselves the "winner"? Or reverse the roles where you have a seller who fails to click the correct check-box and now has an auction for a $3k item that has no protection against selling for $3 (although they intended to have such). Intent is still fuzzy.
(More importantly, even if it isn't at the time of the auction, it will be by the time it gets into a courtroom.
The ebay cases I've seen have gone both ways on this issue, even in the same areas, so you're really taking your chances on filing a case like this since you have no real way to gauge which way the court will go (at least as a lawyer). For a pro se, it might not be such a big deal.
Your hypos would be dealt with in the same manner as other unilateral mistakes in contract law. I don't see that as much of an issue.
You Are Guilty
Senior Member
In rereading the one I had in mind, it was a "conditions precedent" case, not a formation issue. Don't have time to do more research, but luckily, we're getting way off topic so I don't feel too bad about it.
To get back on topic, here's an interesting discussion on market value in contract/breach cases:
The measure of damages for the seller's nondelivery or repudiation is the difference between the market price when the buyer learned of the breach and the contract price, together with any incidental or consequential damages. Comm. Code §2713(1). In estimating damages, the value of property is deemed to be the price at which the buyer might have bought an equivalent thing in the market nearest to the place where under the contract he should have been put into possession. Civ. Code §3354; see Comm. Code §2713(2) (market price determined at place of tender); comm. 2 (market price is price for the same goods and the same branch of trade). If the evidence of a price prevailing at a time or place is not readily available, the price prevailing within any reasonable time before or after the time described or at any other place that in commercial judgment would serve as a reasonable substitute may be used, making any proper allowance for the cost of transporting the goods to or from the other place. Comm. Code §2723(2).
The fact that these are used goods, with a small market, makes proof difficult. Generally, the plaintiff must show that the market for the goods existed or show comparative prices for comparable goods. See Harbor Hill Lithographing Corp. v. Dittler Bros. (Sup. 1973) 76 Misc.2d 145, 348 N.Y.S.2d 922. Where no market price is available, the plaintiff can use evidence of spot sales--similar, smaller transactions. Comm. Code §2713, comm. 3; see ibid. (no evidence that spot sales reflected the market price); Kirkwood Agri-Trade v. Frosty Land Foods International Corp. (5th Cir. 1981) 650 F.2d 602, 605 (applying Alabama law). Of course, in this case, any evidence of spot sales would be of limited use. If the transaction was in one of each type of equipment, rather than of several of each type of good, then any lesser sales would likely be different sales altogether.
Other means of proving market price are through the plaintiff's own testimony (cf. Willametz v. Goldfield (1976) 171 Conn. 622, 370 A.2d 1089, 1092 (testimony not credited for unstated reasons)); or with experts (see Harbor Hill Lithographing, supra, 348 N.Y.S.2d at 922). In California, the amount recoverable under §2713 cannot exceed the amount the plaintiff expected to obtain under the contract. See Allied Canners & Packers, Inc. v. Victor Packing Co. (1984) 162 Cal.App.3d 905, 915 (limiting damages to the $4,000 plaintiff would have gained had defendant performed rather than the $150,000 damages under §2713). Proving a difference in market values requires showing that the plaintiff took advantage of the defendant by buying the equipment for a price significantly under its market value. With proof of lost profits, the necessity of proving market value disappears.
Consequential damages under §2713 include any "loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise." Comm. Code §2715(2)(a). These damages include lost profits. Sun-Maid Raisin Growers v. Victor Packing Co. (1983) 146 Cal.App.3d 787, 791. Before recovering lost profits, the plaintiff must show three things: (1) that the lost profits were within the parties' contemplation at the time of making the contract, (2) that the plaintiff could not have mitigated damages, and (3) that, with sufficient certainty, the damages occurred.
The fact that these are used goods, with a small market, makes proof difficult. Generally, the plaintiff must show that the market for the goods existed or show comparative prices for comparable goods. See Harbor Hill Lithographing Corp. v. Dittler Bros. (Sup. 1973) 76 Misc.2d 145, 348 N.Y.S.2d 922. Where no market price is available, the plaintiff can use evidence of spot sales--similar, smaller transactions. Comm. Code §2713, comm. 3; see ibid. (no evidence that spot sales reflected the market price); Kirkwood Agri-Trade v. Frosty Land Foods International Corp. (5th Cir. 1981) 650 F.2d 602, 605 (applying Alabama law). Of course, in this case, any evidence of spot sales would be of limited use. If the transaction was in one of each type of equipment, rather than of several of each type of good, then any lesser sales would likely be different sales altogether.
Other means of proving market price are through the plaintiff's own testimony (cf. Willametz v. Goldfield (1976) 171 Conn. 622, 370 A.2d 1089, 1092 (testimony not credited for unstated reasons)); or with experts (see Harbor Hill Lithographing, supra, 348 N.Y.S.2d at 922). In California, the amount recoverable under §2713 cannot exceed the amount the plaintiff expected to obtain under the contract. See Allied Canners & Packers, Inc. v. Victor Packing Co. (1984) 162 Cal.App.3d 905, 915 (limiting damages to the $4,000 plaintiff would have gained had defendant performed rather than the $150,000 damages under §2713). Proving a difference in market values requires showing that the plaintiff took advantage of the defendant by buying the equipment for a price significantly under its market value. With proof of lost profits, the necessity of proving market value disappears.
Consequential damages under §2713 include any "loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise." Comm. Code §2715(2)(a). These damages include lost profits. Sun-Maid Raisin Growers v. Victor Packing Co. (1983) 146 Cal.App.3d 787, 791. Before recovering lost profits, the plaintiff must show three things: (1) that the lost profits were within the parties' contemplation at the time of making the contract, (2) that the plaintiff could not have mitigated damages, and (3) that, with sufficient certainty, the damages occurred.
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