free goods problem

[Ben789]

For Minnesota,

A guy advertises goods in the newspaper for free if picked up and hauled away. I contact him and he agrees on the phone that I may have it all. I agree to take it at a later date. He agrees. I call him back a few days later and now he says he decided to keep it. I think some one else offered him money for it and it just trying to get rid of me. Either way is this an enforceable contract?

 

[HomeGuru]

No.

 

[Ben789]

free goods promise

What if his promise was tape recorded?

It is legal in my state to record phone conversations with one party consent.

 

[I AM ALWAYS LIABLE]

For Minnesota,

A guy advertises goods in the newspaper for free if picked up and hauled away. I contact him and he agrees on the phone that I may have it all. I agree to take it at a later date. He agrees. I call him back a few days later and now he says he decided to keep it. I think some one else offered him money for it and it just trying to get rid of me. Either way is this an enforceable contract?

My response:

You see, the problem here is that there was never a contract. The basic elements of a contract are:

1. An offer (the advertisement);

2. An acceptance ("Okay, I'll take the stuff")

3. Consideration (Something of value changing hands in exchange for "the stuff")

You see, you're missing element number 3. Therefore, he was making a gift of "the stuff" to you; however, the "gifting" was never consumated - - e.g., delivery of "the stuff" into your possession, custody or control never occurred.

Therefore, and since there was never any contract, he was free to keep, sell or destroy "the stuff" at his own discretion.

Minnesota - Recording Telephone Conversations:

Minn. Stat. § 626A.02 (1999): It is legal for a person to record a wire, oral or electronic communication if that person is a party to the communication, or if one of the parties has consented to the recording -- so long as no criminal or tortious intent accompanies the recording. Unlawful recordings, or disclosure of their contents if there is knowledge or reason to know of the illegal acquisition, carry maximum penalties of imprisonment for five years and fines of $20,000. In addition, civil liability for violations statutorily can include three times the amount of actual damages, as well as punitive damages, litigation costs and attorney fees. Minn. Stat. § 626A.13 (1999).

Good luck to you.

IAAL

 

[Ben789]

free goods problem continued

With regard to the consideration.

The goods is something that had little value to most anyone else. So this man most likely would have had to pay thousands of dollars to get rid of it. But due to my proximity, I could take it without much expense to me. The consideration then would be the fact that he has no expense to get rid of it whereas he would have otherwise. Is this adequate consideration?

 

[I AM ALWAYS LIABLE]

Re: free goods problem continued

With regard to the consideration.

The goods is something that had little value to most anyone else. So this man most likely would have had to pay thousands of dollars to get rid of it. But due to my proximity, I could take it without much expense to me. The consideration then would be the fact that he has no expense to get rid of it whereas he would have otherwise. Is this adequate consideration?

My response:

No. Your ability "to get rid" of the stuff innures to you - - not him. He already had "the stuff" in his possession. Any consideration must innure to him in exchange for the stuff. Your ability does not innure to him, and therefore, he can get rid of the stuff by giving it to someone else, keeping it, selling it to someone else or burying the stuff if he wanted to.

In other words, there was no adequate consideration passing to him in exchange for the stuff.

If, however, he said to you, "You know, I'll just give the stuff to you (despite your abilities to remove the stuff)" and you said, "No, I'll take the stuff, but only if I give you $1.00", and he says, "Okay, you give me the Buck, and I'll give you the stuff".

That would have been a valid contract.

Sorry amigo.

By the way, what was "the stuff"?

IAAL

 

[Ben789]

free goods continued

It was crushed rock.

I am not throughly understanding consideration however since many contracts are done daily without any money paid up front.

Take for example a painting contractor agrees to paint a guys house for $1000.00. There is or is not a written contract but no money is paid down by the homeowner. Can the homeowner just refuse to pay since he paid nothing down?

 

[I AM ALWAYS LIABLE]

Re: free goods continued

It was crushed rock.

I am not throughly understanding consideration however since many contracts are done daily without any money paid up front.

Take for example a painting contractor agrees to paint a guys house for $1000.00. There is or is not a written contract but no money is paid down by the homeowner. Can the homeowner just refuse to pay since he paid nothing down?

My response:

Now you're getting into the "finer" points of contracts. In this latest scenario, you have a contingent contract - - "I'll paint your house and when I'm done, you pay me $1,000.00". The consideration is the "promise" of payment; i.e., something of "value" will be passing between the parties (labor for money), and the passing is "contingent" upon completion of the work. As long as there is a "promise" of payment, the contract is valid.

In your case, he promised you the rocks, but you made no promise to give him anything in return. No contract. It is, in reality, a "gift". But, delivery or possession into your hands would have completed the gift of the rocks to you. Since delivery or possession never occurred, he can withdraw the offer of a gift of the rocks at any time. Which he did.

IAAL

 

[Ben789]

free goods consideration

Well it seems to me that the consideration is as follows:

This is a typical situation in building construction where someone needs to get rid of something (rocks or fill) before they can build on there site. Typically they have to get bids from contractors to remove it and pay the bill.

This guy thought he would be smart and advertise it for free hoping somebody nearby would take it away. Since I am nearby I offered to take it.

The consideration is that I am ridding him of something he would otherwise have to pay to get rid of and now he can carry on with his project.

As part of my business I do haul away bulding materials. For this man I agreed to do it for free, since I was only taking it a short distance.

Am I correct here?

 

[I AM ALWAYS LIABLE]

My response:

No.

We've already covered this ground in my response to you, above, that asked "What was the stuff?". Same answer.

It's quite obvious to me that this issue is very important to you. I'm sure that you believe that "one man's garbage is another man's treasure" and that you stood to gain a profit from this arrangement.

However, there should have been some form of acknowledgment in writing from you to him to confirm your telephonic discussion and agreement. Which brings me to my final point.

Let's assume that there was a contract. Since this whole matter is based upon an oral discussion, all he'd have to do is deny that any agreement was ever entered with you; either that the discussion had never taken place or, if he acknowledges the discussion, that his conversation with you comprised of nothing more than your inquiries and his answers to you about the rocks. Nothing more.

You, as the plaintiff in front of a judge, have the "burden of proof" to show that such a conversation took place, and if that is proved, that any agreement was consumated. I don't believe, from what you've said so far, that you would be able to carry your burden of proof - - and would, thus, lose your case.

It's time to move on, and next time, send a confirmation letter if you decide to use oral agreements in the future.

Good luck to you.

IAAL

 

[Ben789]

free goods continued

Remember however that I have his promises on a recorded tape.

 

[I AM ALWAYS LIABLE]

My response:

Ben, darling, sweetheart. I don't mean to keep playing devil's advocate with you, and I understand, more than ever, how important this issue is for you.

However, you're just not understanding the dynamics of "gift" versus "contract". It doesn't matter that you have his "promises" on tape. That doesn't change the character of the agreement. The agreement was giving you a "gift" - - there was no "consideration" passing to him at all in exchange for the rocks. Until the "gift" actually is delivered to you, or taken by you, or transferred to you, the rocks, plain and simple, are not yours.

Ever heard of an "Indian Giver"? Okay, the guy is a sleaze, and his word is not his "bond". But that doesn't a contract make !

And then, on top of that, you're the one that will need to prove "damages", e.g., the value of the rocks, by using independent information from an expert willing to testify on your behalf - - not merely a written statement either, or your own testimony. If you can't prove damages, you can't win.

I tell you what. Sue the guy, and have a judge tell you. Let me know what happens (although, I already know).

IAAL