Classifieds Rant

[ChrisN]

Originally Posted by Geof S.

You are assuming that advertising an item for sale on a guitar forum is an offer to sell the item to anyone in the world who states they are willing to pay the price. But this assumption is simply incorrect: stating an intent to sell at a given price does not constitute a agreement to contract with any individual at that price: it merely indicates the terms on which the seller is contemplating selling the guitar. (There may be some exceptions for "merchants" under the Uniform Commercial Code, but none of them are applicable here.) In fact, it is a well-established proposition of contract law that a mere advertisement does not constitute an offer to contract.

I have been doing contract law for well over 20 years, and I can assure you that at least in my jurisdiction (California) any attempt by a buyer to enforce a "contract" between private parties that was allegedly formed solely by (a) an alleged advertisement indicating intent to sell at a stated price; and (b) a person stating "I'll take it at the stated price" would be laughed out of court, unless the seller said something like "sold to the first person who agrees to the price" in his/her ad. There is no contract between two private individuals until there is meeting of mind between those individuals, and in your scenario the seller never agreed to sell the guitar to that particular buyer.

I think I'm right about this, even in California. There's a difference between an advertisement applicable to multiple items, and an offer of a single item.
You say:

"stating an intent to sell at a given price does not constitute a agreement to contract with any individual at that price: it merely indicates the terms on which the seller is contemplating selling the guitar."

There's a good Hastings [California!] Law Journal article from 2006 that looked at this very issue.

The opening sentence is: "Courts and scholars uniformly recite the contract law familiar to all first-year students: An advertisement is not an offer. The courts and scholars are wrong. An advertisement is an offer."

The rationale for "advertisement is not an offer" arises from the "quantity" problem, as a typical ad is too general to be an "offer" because it contains no notice of the number of persons who may accept by attempting to purchase the advertised item. With a single item, like a specific guitar on an internet board, there's no confusion - only 1 person can accept the offer because there's only 1 instrument available.

It's a good article, and you should consider taking a look at it.

In the "Guitar $200 shipped" examples, what's left to confirm the meeting of the minds after "I'll take it"?

[UncleJesse]

Originally Posted by scotchnspeed

We more closely agree now , but would add that not everyone (including myself when I deal privately for a sale) do not assume the unnecessary responsibility to get it to the buyer. So I am not sure a judge would take that tact, though you probably agree those applications outside the UCC will vary more by state and the nature of the deal.

You pay, title passes, I contract with you to ship it to you via your preferred carrier. Your responsibility, thoguh happy to facilitate any claims if needed. Many people simply do not want to pay exorbitant extra insurance, and I do not blame them.

BTW, and just my opinion - reverb/paypal/et al side with the buyer for their own gain, not because of law. It is easier for them to assure our weak society that they are "protected," which assures their bottom line at sellers' expense.

These days I don’t worry about this. I usually negotiate shipping on my account and a transfer of a guitar to my policy before it hits the ups system. Unless of course the buyer already has insurance. I’d never count on what ups calls “insurance”.

That said, if this truly is your position you should make that absolutely clear in your sales posts. As a seller I believe it to be my responsibility to get it safely to the buyer. If you shipped a guitar to a buyer that was damaged in shipment you’d just tell them to file and claim and say it’s not your problem? If I were buying without a dedicated insurance plan I wouldn’t want to buy from someone who said it wasn’t their responsibility after they dropped it off. This goes opposite of everything I’ve ever understood with regard to sales of items on the internet. Even private sales like this. You packed it. What if you did a bad job? I would never agree to this as I’ve gotten some things packed terribly over the years.

These days I just include shipping and insurance on all my items to avoid these issues.

[Geof S.]

Originally Posted by ChrisN

I think I'm right about this, even in California. There's a difference between an advertisement applicable to multiple items, and an offer of a single item.
You say:

"stating an intent to sell at a given price does not constitute a agreement to contract with any individual at that price: it merely indicates the terms on which the seller is contemplating selling the guitar."

There's a good Hastings [California!] Law Journal article from 2006 that looked at this very issue.

The opening sentence is: "Courts and scholars uniformly recite the contract law familiar to all first-year students: An advertisement is not an offer. The courts and scholars are wrong. An advertisement is an offer."

The rationale for "advertisement is not an offer" arises from the "quantity" problem, as a typical ad is too general to be an "offer" because it contains no notice of the number of persons who may accept by attempting to purchase the advertised item. With a single item, like a specific guitar on an internet board, there's no confusion - only 1 person can accept the offer because there's only 1 instrument available.

It's a good article, and you should consider taking a look at it.

In the "Guitar $200 shipped" examples, what's left to confirm the meeting of the minds after "I'll take it"?

I've read that law review article in the past. It is what it is: the suggestion of a new rule of contract by some legal scholars which has not been adopted by California courts (or anywhere else, to my knowledge).

[Street Glider]

When I sell something, I always insist that payment be made within a specific period of time (usually 24 or 48 hours). If the "buyer" fails to do that, he's out; back o' the line.

Plus, he'll be publicly blasted for being a deadbeat buyer.

This isn't difficult. Don't commit to purchasing something if you can't commit to paying for it. Furthermore, if you see yourself as a legitimate buyer, don't fool yourself into believing that you're "working a deal". If you want it, commit to it and pay for it.

Otherwise, it remains up for grabs...

[RP]

Originally Posted by steelvibe

...First person who posts verifiable funds to my PayPal account gets the merch.

To me that's verification of commitment on behalf of the buyer. All of this other legalese is pretty academic in my mind...

Originally Posted by drew b

...I do appreciate the [legal] minutiae, but the OP was more about etiquette than law.

Drew

I'm with Drew on this....

[ewalling]

Originally Posted by ChrisN

I agree with most of the OP's points, but add:

1. "I'll take it" people are sometimes looky-loos who are shutting down competition while they gather information before they bail out (after costing the seller some buyer eyes). "I'll take it" means you're committing to buy without 1 more question, without 1 more picture, and at the price asked.

I personally would trust selling to a private individual. When I sell, I take the hit and deal with a reputable store - I can do without the grief that Joe Public can dole out, given half a chance.

However, I think you're right in what you say. I'd even go a stage further. A guitar, for me, would not be yours until the funds appear in my account. That should happen almost immediately after the moment we made the deal. If not, the guitar would still be up for sale. Have you ever heard of a store accepting 'I'll take it' alone as reason not to sell a guitar to anyone else?

[ChrisN]

Originally Posted by ewalling

I personally would trust selling to a private individual. When I sell, I take the hit and deal with a reputable store - I can do without the grief that Joe Public can dole out, given half a chance.

However, I think you're right in what you say. I'd even go a stage further. A guitar, for me, would not be yours until the funds appear in my account. That should happen almost immediately after the moment we made the deal. If not, the guitar would still be up for sale. Have you ever heard of a store accepting 'I'll take it' alone as reason not to sell a guitar to anyone else?

I'm hesitant to weigh in further on this topic, but . . . for a bunch of reasons having to do with quantity, audience, etc., the UCC applies to merchants, and common law applies to individual sellers. If your offer as a common law seller contained the express condition "the guitar isn't yours until your money hits my account," then I'd say you're fine. If you tried to enforce that provision after the fact, without disclosing it in advance, I think it likely a court would find you had a binding contract when the buyer agreed to buy at your price/conditions. The buyer would be in breach of the contract, but there'd be a contract, nonetheless.

Again, these are "legal" things about contracts. Most deals between non-merchants go off OK, and there's usually not much damage if someone busts a deal, but I've seen the wheels go off the track on $15-$20k guitars sold among the well heeled, and the outcomes can be nasty (some do end up in court), so I think it's best to apply general rules of contract formation to all deals. It's cleaner.

[frankmcr]

" . . . and lemme tellya another thing that's wrong with the world today . . ."

[Mbroady]

I’m a tire kicker. Not in a way that wastes someone’s time. I am open from the start. I have questions that need answers, and i want specific pictures and a vid/sound sample. If the seller is willing to work with me on these then I stop kicking tires and make the commitment to buy. So be it if someone swoops in with an offer and I lose out.

[KevWind]

Originally Posted by drew b

I’m not a crazy rule-follower, but I would like to point out that I have had a number of people get a little sideways with me about gear I’ve listed in the classifieds section.

The scenario typically occurs when someone softly engages with me about an item. They may be asking questions, making an offer for a lower price, waiting on payday, etc. I use the word “softly” because at this point nobody has made a firm commitment. Then someone swoops in and posts the all-powerful “I’ll take it.” At this point, we have a commitment, and the item is sold, pending funds.

Hey, it’s happened to me. I’ve been a little wishy-washy about an item-even a guitar-and someone pulls the trigger before I do. I’m bummed for a minute, but that’s the way it goes sometimes -and that’s the risk you take when you start kicking the tires.

That does not then give the green light to the forum member who lost out on the item (the tire-kicker) to begin taking up my PM storage (and time) with a bunch of presumptive accusations along the lines of “oh I see, you sold to the guy with cheaper shipping,” “I thought we were working a deal,” “I thought you were a person with character,” etc. etc.

I realize I am a little more susceptible to this because I typically like to give a good deal on my gear. Really, I’m just ready for things to leave when it’s time for them to move on and don’t want to bump stuff to the top of the thread for weeks.

Anyway, here are a few requests and standards I like to live by regarding the classifieds section:

-first firm commitment takes it
-commitments in the post itself take precedent over private-message commitments (what are we being private about?)
-if we are in dialogue about an item, we are in no way committed to one another
-an offer of a lower price is not a commitment
-everyone has a reasonable time to respond to a PM (within 24 hours might be a good rule of thumb)
-once a commitment is given, it may be a few days before I can get it packed and shipped (this especially applies to guitars-trust me, you want it packed well)
-once I have provided you with a tracking number, it’s between you and the carrier-reach out to them first
-once the sale is final, please disengage. If you’d like to be next in line, please post it in the listing

The overwhelming majority of my transactions are awesome, and if there were a feedback system mine would be 99% positive. It’s the 1% that really stick out. I do appreciate the AGF for providing a platform where the level of trust is a bit higher than, say, Craigslist (which I also use). I also appreciate that there’s a little “skin in the game” with the Charter-Member requirement. It’a all good! There are just a few unspoken rules that occasionally need to be spoken.

Feel free to add to the “unofficial rule”/“etiquette” list as you see fit.

Drew

Stop expecting that you trying to offer "a good deal" has (or should have) any affect on any buyer reactions.
Or that any kind of " unofficial rules" apply to anyone but you.

The only control we have in life is our own attitude
Everybody else's attitude is their burden to bare.

Just get quick at the delete function in PM, or turn it off unless in actual transaction .

[Watt]

Originally Posted by Geof S.

I've read that law review article in the past. It is what it is: the suggestion of a new rule of contract by some legal scholars which has not been adopted by California courts (or anywhere else, to my knowledge).

I can't imagine a more impractical rule, from the perspective of both the prospective seller and the prospective buyer. Particularly if you are dealing with an online sale of a guitar for "$200 shipped" where the parties are located in different states. And we haven't begun to address implied conditions or, for higher dollar sales, the statute of frauds ....

[Bjbny]

For those you arguing about contract law and how it would apply, I would highlight that it is actually irrelevant in the real world for the sale of a guitar worth less than $10k. Whether or not you have a “binding” contract, you will only get the real answer if you are willing to bring a lawsuit to enforce your binding contract. The costs, time and aggravation of bringing the lawsuit (especially if the person is in another state) will far outweigh whatever actual “loss” you might experience by missing the sale (if the buyer) or having to sell for less money to someone else.

[Denny B]

Originally Posted by Bjbny

For those you arguing about contract law and how it would apply, I would highlight that it is actually irrelevant in the real world for the sale of a guitar worth less than $10k. Whether or not you have a “binding” contract, you will only get the real answer if you are willing to bring a lawsuit to enforce your binding contract. The costs, time and aggravation of bringing the lawsuit (especially if the person is in another state) will far outweigh whatever actual “loss” you might experience by missing the sale (if the buyer) or having to sell for less money to someone else.

Reality...what a concept...

[scotchnspeed]

Originally Posted by Bjbny

For those you arguing about contract law and how it would apply, I would highlight that it is actually irrelevant in the real world for the sale of a guitar worth less than $10k. Whether or not you have a “binding” contract, you will only get the real answer if you are willing to bring a lawsuit to enforce your binding contract. The costs, time and aggravation of bringing the lawsuit (especially if the person is in another state) will far outweigh whatever actual “loss” you might experience by missing the sale (if the buyer) or having to sell for less money to someone else.

Very true - but that is not the issue. The issue is confusion among very assertive people as to whether there is a deal and what determines when a deal is made and how it should transpire. Just search this forum and others for myriad deals gone bad because folks did not know the basics of what was or should be expected.

[ChrisN]

Originally Posted by scotchnspeed

Very true - but that is not the issue. The issue is confusion among very assertive people as to whether there is a deal and what determines when a deal is made and how it should transpire. Just search this forum and others for myriad deals gone bad because folks did not know the basics of what was or should be expected.

Unsurprisingly, I agree!! That is the very issue I addressed.