Quote:
Originally Posted by Edjay
|
WOW a HUGE detail.
THIS IS A LAY OPINION NOT THE OPINION OF AN ATTORNEY PLEASE CONSULT ONE BEFORE ACTING.
This seems to qualify as a mutual mistake.
Mutual Mistake:
Mutual mistake is a valid defense to
formation holding that there was NO CONTRACT.
In a mutual mistake:
1) The mistake rests on a basic assumption on which the contract was made AND
2) The mistake materially adversely affected the agreed upon exchange AND
3) The adversely affected party did not assume the risk
Both parties thought what they paid for and what they received was what was needed to get the thing working. In this case the parties BOTH were mistaken. This would void the contract completely as if it were never formed and the parties would probably have a legal duty to return what they had.
It could be argued though that:
Bimmer assumed the risk:
1) For not checking the goods and having an agent of his pick it up. Though this could be questionable as you have not "accepted" goods that you have merely paid for without inspection (think QVC or homeshopping network).
AND
2) Not getting a diagram of what the kit original comes with
Statute of Frauds:
The sale of goods of over $500 requires a writing signed by the party to be charged to be made
enforceable. There seems to be no indication of a writing except maybe through texts yet no signature but there is an exception here:
Partial payment or delivery made and accepted (but only satisfies SoF as to extent of the partial payment/delivery) Since one could argue that the kit was "partially delivered" you could still hold the contract enforceable against MEEEZZEE
Implied Warranty of Merchantability:
A contract always has an additional term implied (built into it regardless of what it actually says). The implied warranty of merchantability means that the good will do what it was intended to do (a fan blows air, a refrigerator keeps food/its contents cold) Since MEEZEE is not a Merchant (one who normally deals in the sales of goods) there is no implied warranty of merchantability.
Depending upon how this turned out your remedies would be in equity as quasi contract as there might be NO CONTRACT.
Restitution:
P can get restitution damages for property/money given to, or services rendered for, D for the value of the benefit. The value of the benefit is determined by:The difference between present value of chattel (personal property) and value before services rendered.
To have quasi contract (equitable remedy) there must be:
Quasi Contract
1) P conferred a benefit onto D
2) P expected performance/to be paid
3) D would realize unjust enrichment if P was not compensated/fulfilled.
THIS IS A LAY OPINION NOT THE OPINION OF AN ATTORNEY PLEASE CONSULT ONE BEFORE ACTING.
It would rather be unlikely that you would haul him into small claims court but it's possible to do so.