GHL On Sale - BRS

[i_am_mclovin]

It could have been enforceable if it was incorporated by reference during check out and the buyer agreed to those terms. It just so happens that the disclaimer was not a term or even referenced during checkout. I do not believe a disclaimer on a retail website is automatically incorporated into a purchase agreement that makes no mention of it.

I guess BRS should hire the lawyers in this thread to help them fix all their legal problems.

 

[Brian_68]

Brian_68 said:
That is not correct, you need to have it available on the website and it is actually easy to find. It is not needed every time you check out, legally.

see here:

BroccoliFarmer said:
@JosephRyan take notice: @Mywifeisgunnakillme made me agree. Why? (Specht v. Netscape Communications. Corp. (2002): Placing an innocuous link at the bottom of your home page where the visitor has to scroll down to find it (and may not notice the link) won’t provide proper notice. (Specht v. Netscape Communications. Corp. (2002). Notice needs to be prominent and stand out so the average website user can’t miss it. Your visitors shouldn’t have to “stumble upon” a link to any of your website agreements.

It is best to review that case as it is not related in any way, at it was regarding downloading free software. Looking up pricing law instead and the requirements needed for pricing mistakes.

 

[Mywifeisgunnakillme]

Here is another personal experience, I had a dispute years ago (well before becoming an attorney) with a tire retailer. The seller shipped me tires at the cost plus like 30 dollars in shipping. They tried to then charge me another $300 because the tires had to be shipped to Alaska. Their argument was that somewhere on the website it said that shipping to Alaska would incur additional charges.

The dispute was resolved in my favor because the Alaskan shipping charges were not a part of the sales contract.

 

[Mywifeisgunnakillme]

I guess BRS should hire the lawyers in this thread to help them fix all their legal problems.

There is a danger on relying on corporate transactional attorneys recommending this or that for a website or name your favorite contract. I make a good living litigating, on both sides, their mistakes

 

[spsick]

Imagine if everyone in this thread pooled the same level of effort and ideas into helping homeless veterans or something. Or anything that mattered at all.

ps not trolling or attacking anyone…

 

[BroccoliFarmer]

see here:

That was just if the terms and conditions was enforceable upon someone who did not read it....one aspect of the discussion. My next approach would be to address the validity of the contract itself and does this actually constituted a contract.

 

[Mywifeisgunnakillme]

prices where corrected on the website.

And if you buy now, be assured both sides can rely on the contract formed for that price.

 

[BroccoliFarmer]

It is best to review that case as it is not related in any way, at it was regarding downloading free software. Looking up pricing law instead and the requirements needed for pricing mistakes.

It was related based on are the terms and conditions enforceable if someone doesnt read them or if they are not conspicuously posted. so it was related just not directly based upon the pricing aspect.

 

[JNalley]

It is best to review that case as it is not related in any way, at it was regarding downloading free software. Looking up pricing law instead and the requirements needed for pricing mistakes.

It was related based on are the terms and conditions enforceable if someone doesnt read them or if they are not conspicuously posted. so it was related just not directly based upon the pricing aspect.

Law is often not as precise or as specific as "pricing mistakes". The fact that the courts determined: "Notice needs to be prominent and stand out so the average website user can’t miss it. Your visitors shouldn’t have to “stumble upon” a link to any of your website agreements." encompasses what it is we're discussing. The wording is left broad so that it may cover large portions of other cases.

 

[Mywifeisgunnakillme]

My next approach would be to address the validity of the contract itself and does this actually constituted a contract.

This depends on the states theory of contracts. I mentioned this before. Most states follow an objective manifestation theory on contracts. Meaning the court does not try to read minds. It looks at the case and offer and acceptance and consideration from a birds eye perspective. This theory favors the buyer here.

Other states follow (minority rule) a subjective manifestation theory of contracts. They look to see if there was a "meeting of the minds". This might help BRS, but for reasons already stated, i doubt it saves them.

Dig into that for BRS arguments.

 

[biecacka]

Imagine if everyone in this thread pooled the same level of effort and ideas into helping homeless veterans or something. Or anything that mattered at all.

ps not trolling or attacking anyone…

Actually, through work our firm does a ton of community outreach. In fact I have helped pass legislation for victims of crime, specifically domestic violence victims. I often help fundraise, food drive, toy drive, hell I even deer hunt and donate the meet after processing to various outlets. So I would say I do pool a substantial amount of energy to helping others. I just didn’t know this was the thread to point that out.

corey

 

[BroccoliFarmer]

And if you buy now, be assured both sides can rely on the contract formed for that price.

One more interesting reading. Not primary source but still interesting. Again..going to my 'validity of the contract' and is it actually a contract or merely an acknowledgement of the order. Given there is no specific on point case law, I am sure this is just going to be another thing to digest and move on from...but I think this is where i would hang my hat on...that the contract was not properly executed and thus invalid if it was a binding contract at all.

Sale contract negotiation: The laws of e-commerce

When a sale contract is concluded on the internet, the same guidelines apply as with in-house trading, but with certain distinctions.

www.ionos.com

One paragraph stands out to me.

• According to the law, the merchant is obligated to immediately confirm the order. An automatic confirmation e-mail is an option here. Merchants who choose this option must pay attention to the text of such an e-mail and make sure that it is formulated clearly. It is merely the confirmation of the order receipt, which is not the same as the binding acceptance of the offer which the customer submits. The law only requires a confirmation of the receipt of the order, not the confirmation of the order as it is. Therefore, online merchants should avoid talking in the “customer” mail address, which could lead to false assumptions.

 

[Mywifeisgunnakillme]

An automatic confirmation e-mail is an option here. ... It is merely the confirmation of the order receipt, which is not the same as the binding acceptance of the offer which the customer submits.

I think this author is confused. The buyer does not make an offer (unless he makes a counteroffer on different terms advertised, which did not happen here).

The buyer accepts the advertised offer on the website, which did happen here.

In other words, the buyer is the offeree. This author is confused and is stating that the buyer is the offeror. That is clearly not the case.

Based on this pretty egregious misunderstanding, i would pretty much discount anything this person says...

EDIT: It may be that this article is discussing online auctions, in which case the buyer is the offeror. But that has nothing to do with the BRS situation here.

Moreover, the BRS offer/contract is not negotiated. It is a standard form contract; the buyer takes it or leaves it. This article is all about negotiating online. Not the case here.

 

[MnFish1]

My days some people are like vultures.... you can well see the problems in society, I'm just glad we don't have the "I will sue you for looking at me" in the UK. This is good entertainment.

IMHO you in the UK - as some of my friends in Europe have this idea - that here everyone sues each other - IMHO - not true

 

[BroccoliFarmer]

I think this author is confused. The buyer does not make an offer (unless he makes a counteroffer on different terms advertised, which did not happen here).

The buyer accepts the advertised offer on the website, which did happen here.

In other words, the buyer is the offeree. This author is confused and is stating that the buyer is offeror. That is clearly not the case.

Either way, this is where I would hang my hat. Does that click and 'buying' execute the contract or simply extend the one side offer to buy and the seller must then accept. The acknowledgement email might just be that..an acknowledgement and not an acceptance. Absent specific state law on point, this is where I would take it.

 

[MnFish1]

Who here is from mn

I would not sue if from mn or not

 

[Mywifeisgunnakillme]

Either way, this is where I would hang my hat. Does that click and 'buying' execute the contract or simply extend the one side offer to buy and the seller must then accept. The acknowledgement email might just be that..an acknowledgement and not an acceptance. Absent specific state law on point, this is where I would take it.

Don't hang a nice hat here... it will be lost

 

[Jeffcb]

They ship tomorrow!!!

 

[Mywifeisgunnakillme]

I would not sue if from mn or not

If you bought $50K or $75K (can't remember the current limit) you can sue in federal court and have diversity jurisdiction. Argue that venue is appropriate in your home state where you pressed "buy"... lol.

 

[MnFish1]

It has already been determined that a buried page on a website is not enforceable. If they had had this disclaimer at any time during the signup or checkout process it would have been enforceable, but simply having a page with legal mumbo-jumbo cannot save them in this instance.

lol no it has not in fact I posted a weblink that showed the example of multiple pricing errors - sone the company refunded some they honored. You must not have been reading the same thread?