deposit on car 4 sale by individual

[a fairchild]

ohio
my husband put a $300 deposit on a used car for sale by an individual, but i did'nt know about it. when i found out i told him we couldn't get it. he sent the payment via mail on tuesday, he called on saturday to let the seller know he changed his mind. now the seller won't return the deposit. we even offered to pay the advertising expenses. he still has the car for sale. is this considered a verbal contract? is it binding? can we get our money back? if he sels the car, wouldn't he be breaking the deal also and have to pay us back?
thank you for your time!

 

[lawrat]

Acceptance is effective upon dispatch when mailed. If he decided to reject on Saturday, two things happened: his rejection was not effective because they already received his deposit and the seller was entitled to keep the 300 if that is a liquidated damage. Your husband isn't made to take the car by law but he is supposed to pay: the contract price minus the market price plus advertising and other such items or the $300, I think whichever is lesser.

The $300 can be construed as holding it for you (option contract) but he gets to keep it if you cancel.
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I am a law school graduate. What I offer is mere information, not to be construed as forming an attorney client relationship.

 

[JETX]

In a nutshell, here are your options as I see them (all are assuming no agreement to the contrary):

1) Since you have paid the deposit for the car (assuming there was not a 'pickup deadline'), you might still be able to pay the sales balance and take possession of the car. That way you will be 'protecting' your $300 and can keep or sell the car yourselves. However, if there was a 'take possession' agreement ("Here is $300, hold the car until X) and that deadline has passed, you would need the sellers approval to extend the deadline and take possession.

2) You could consider taking legal action (Small Claims) to recover the $300. However, this approach has a LOT of potential problems and your success or failure would depend entirely on the circumstances between the seller and your husband. For example, if the sale was 'conditional' ("Here is $300 to hold the car until I can check with my wife and if she says NO, I get it back"), you can possibly prevail. But you need to consider ALL the issues and what credible proof both sides might have.

3) You certainly have the option of considering this another of "lifes little lessons" and learn the risks of entering a contract and breach of same.

Now, one of the final arbitrators of justice... what would YOU do if the positions were swapped and YOU are the seller and 'Bob' was the buyer who gave you the $300. Would you willingly return "Bob's" money???