Seller claimed Womb Chair was a particular brand and it wasn't; it's a knockoff; small claims court?

[mahstmacat]

And just to explain: I delete ads when I've sold something, but I don't bother deleting message threads. He took that trouble...he could try to say that he does that all the time but when I specifically said I needed to hear from him by Tuesday morning and that this was my 'bona fide' effort to resolve amicably, deleting the thread instead of replying is not the mark of an innocent person.

 

[quincy]

Stick to facts in court and let these facts speak for themselves. You can have your suspicions but these won't help you.

 

[mahstmacat]

Yes, for sure. The facts do speak for themselves.

On a related topic: the relevant statutes seem to be re breach of contract, not fraud - fraud seems to refer back to the breach of contract statutes. Is that usual?

Here's one part...does this relate?
72.7110 Buyer’s remedies in general; buyer’s security interest in rejected goods. (1) Where the seller fails to make delivery or repudiates or the buyer rightfully rejects or justifiably revokes acceptance then with respect to any goods involved, and with respect to the whole if the breach goes to the whole contract as provided in ORS 72.6120, the buyer may cancel and whether or not the buyer has done so may in addition to recovering so much of the price as has been paid:
(a) “Cover” and have damages under ORS 72.7120 as to all the goods affected whether or not they have been identified to the contract; or
(b) Recover damages for nondelivery as provided in ORS 72.7130.
(2) Where the seller fails to deliver or repudiates the buyer may also:
(a) If the goods have been identified recover them as provided in ORS 72.5020; or
(b) In a proper case obtain specific performance or replevy the goods as provided in ORS 72.7160.
(3) On rightful rejection or justifiable revocation of acceptance a buyer has a security interest in goods in the possession or control of the buyer for any payments made on their price and any expenses reasonably incurred in their inspection, receipt, transportation, care and custody and may hold such goods and resell them in like manner as an aggrieved seller as provided in ORS 72.7060. [1961 c.726 §72.7110]

Here's another that may relate?
72.7140 Buyer’s damages for breach in regard to accepted goods. (1) Where the buyer has accepted goods and given notification as provided in ORS 72.6070 (3) the buyer may recover as damages for any nonconformity of tender the loss resulting in the ordinary course of events from the seller’s breach as determined in any manner which is reasonable.
(2) The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.
(3) In a proper case any incidental and consequential damages under ORS 72.7150 may also be recovered. [1961 c.726 §72.7140]

https://www.oregonlegislature.gov/bills_laws/ors/ors072.html
Am I on the right track? BTW the seller msg'd me today and claimed that since we liked the chair, he considered it a final sale and said "no matter what someone may have told you afterwards, my description was accurate". I asked him to clarify that he'd be standing by his representation that he bought the chair at DWR, and haven't heard back...my next step is to file. No more communication.

Isn't a scam a scam even if someone initially falls for the misrepresentation and realizes the truth afterwards? I mean, Trump University? (not to get political - it's just a factual situation) Or someone who represents a cubic zirconia as a diamond? Even if the zirconia buyer 'liked' the stone and paid for it, the buyer would be justified in getting a refund once the truth comes out, yes? Where is a precedent I can quote, or how do I need to make this argument?

I am really trying to learn this as fast as I can and so greatly appreciate your thoughts...and fwiw, I am more used to sharing my expertise (not law, obviously--writing, editing, dramaturgy, believe it or not--advanced degrees) with others whenever possible, so it's odd to be on the receiving end

 

[quincy]

Yes, for sure. The facts do speak for themselves.

On a related topic: the relevant statutes seem to be re breach of contract, not fraud - fraud seems to refer back to the breach of contract statutes.

You can claim breach of contract.

 

[mahstmacat]

Oops, didn't see your reply before I wrote my long one! Thanks.

 

[quincy]

You agreed to purchase the chair because it was represented by the seller as a DWR/Knoll Womb Chair. Your agreement with the seller was to pay $900 and he would sell you the Womb Chair.

What was sold and what you purchased instead, however, was a used chair that was not an authentic DWR/Knoll Womb Chair.

Should you have investigated the chair's authenticity prior to purchase? Yes. That is what all buyers should do prior to buying any item, new or used. When buying a used item from a private seller is it generally "buyer beware" and "sold as is" and "all sales final." Yes.

And the seller is apt to argue all of this.

But you relied on the advertisement and the words of the seller. It is the false advertising and the misrepresentation by the seller that should allow you to get a refund.

Good luck.

 

[mahstmacat]

Thanks, Quincy. I'm so glad I saved the messages and the ad. And your help has been invaluable.

 

[mahstmacat]

Hi again Quincy and y'all,

We're preparing to file the Small Claims suit and I'd like to run the claim statement by you...does it give away too much? Am I too repetitive? Does it say enough? Is it irritating in any way to the court officials? This style of writing and this audience are completely new to me. *Thanks in advance* for any thoughts...

---------------------------------

In August 2019, we saw an advertisement on facebook marketplace (saved by screenshot) listed by the defendant. It stated that a “modern midcentury womb chair” he was selling was “Brand: DWR” [Design Within Reach].

On August 30, we saw and liked the chair, and because we trusted the defendant’s repeated references to DWR, bought it, and took it home. When we tried to find this model of the womb chair in DWR and could not. A representative at DWR later confirmed that DWR never sold this model of chair.
In subsequent written communication (downloaded) the defendant repeatedly misrepresented the chair as having been bought at DWR, although he didn’t “have [the receipt] anymore.”

We agreed to purchase the chair because it was represented by the seller as a used DWR/Knoll Womb Chair. Our agreement with the defendant was to pay $900 and he would sell us a Womb Chair, specifically bought at DWR.

What was sold and what we purchased instead, however, was a used chair that was factually not an authentic DWR/Knoll Womb Chair.

We trusted the false advertising and the fraudulent misrepresentation by the defendant. We ask for a full refund and to give the defendant back his chair.
----------------------------------

 

[Shadowbunny]

What I'm offering is editorial versus legal advice:

Second sentence, I would reword as follows: "We were unable to find this particular model on the DWR/Knoll website, so contacted an authorized DWR dealer." (Note: you started that sentence with the word "when" but didn't follow it up. In other words, "when" this happens, "then" that happened. )

You *may* want to mention how the dimensions of the chair and other structural elements are what lead the DWR rep to verify that it's a fake.

The sentence starting "What was sold...." I think would read better as "The seller sold us a chair that he represented as an authentic DWR/Knoll Womb Chair, even going so far as to claim he has the receipt to prove its authenticity. However, as evidenced by the testimony (or notarized statement) of the DWR agent, this chair is a knock-off.

Just a side note: I'm not sure if anyone here can give you much more than grammar/sentence structure suggestions, as that would veer perilously close to the unauthorized practice of law. I'm just an unrepentant word-nerd, and have almost a pathological need to edit.

 

[mahstmacat]

thank you, shadowbunny! Once again, didn't realize the ramifications -- so don't want to veer into the 'unauthorized practice of law'. And I hear you re word-nerdism -- editing other people's work is so much easier and more fun than generating one's own Really appreciate your advice

 

[Shadowbunny]

Thanks for the thanks, and please let us know how this debacle turns out.

 

[Just Blue]

What I'm offering is editorial versus legal advice:

Second sentence, I would reword as follows: "We were unable to find this particular model on the DWR/Knoll website, so contacted an authorized DWR dealer." (Note: you started that sentence with the word "when" but didn't follow it up. In other words, "when" this happens, "then" that happened. )

You *may* want to mention how the dimensions of the chair and other structural elements are what lead the DWR rep to verify that it's a fake.

The sentence starting "What was sold...." I think would read better as "The seller sold us a chair that he represented as an authentic DWR/Knoll Womb Chair, even going so far as to claim he has the receipt to prove it's authenticity. However, as evidenced by the testimony (or notarized statement) of the DWR agent, this chair is a knock-off.

Just a side note: I'm not sure if anyone here can give you much more than grammar/sentence structure suggestions, as that would veer perilously close to the unauthorized practice of law. I'm just an unrepentant word-nerd, and have almost a pathological need to edit.

You're wicked good with words and editing, Shadow.

 

[Shadowbunny]

You're wicked good with words and editing, Shadow.

The ironic part is that I found a mistake in my edit to OP's post. I've since gone in and fixed it, but I used an improper "it's".

 

[Just Blue]

The ironic part is that I found a mistake in my edit to OP's post. I've since gone in and fixed it, but I used an improper "it's".

OhOhhh!! It's the improper-it's-switch for you!!


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[quincy]

Nice editing, Shadowbunny.

mahstmacat, your complaint (especially with Shadowbunny's suggested edits) should be fine.

Good luck in court.