Explanation of the legal aspects of the hard drive issue RE: [SunRescue] Your not gettin' em!

[Chris Byrne]

Okay, we have two differnet arguments here.

The first is a legal argument. I'm not a lawyer, but I spent five years
working in my grandfathers legal office, and you pick up a few things along
the way.

Legally speaking, even with the disclaimer on the page, they are still
legally responsible in most states to sell the drives at the advertised
price. If it was a mis-print on the part of a third party not affiliated
with the company that would be a different matter, and in some states they
still could have gotten out of it by simply refusing to complete the
purchase agreement, however since they automatically accepted the purchase
and provide confirmation of it, in almost every state that is a legal
contract.

In order to be a legal contract, consideration must be offered, and accepted
by all parties to a contract. For example I can offer to sell you some
peaches, you can offer me some money, if we both agree, we have just created
a legal and binding contract. I am legally required to deliver to you the
peaches I sold you.

In this case, consideration was offered by the party of the first part, the
retailer. That consideration was accepted by the party of the second part,
the purchaser, and consideration was offered in return. That consideration
was accepted by the retailer, therefore a sales contract has been agreed
upon.

It's just the same as when a business misquotes a price to another business.
If they accept a purchase order at the misquoted price that is delivered
within a reasonable time (usually explicitly stated on the quote) then they
are legally bound to fulfill the contract, and to deliver the consideration.

Now all that being said, in SOME states, in order for a contract to be
enforcable, the consideration must be reasonable (and in all states illegal
or contraband consideration is of course un-enforceable). For example if I
offer to sell you a commercial building worth $10M, and you offer me $1 and
I accept, then the contract is not enforceable, even though I accepted,
because the consideration you offered was unreasonable.

So there are two factors here, was the sale conducted in a state that
upholds the "reasonable person" standard for consideration, and if they are
is $19 so unreasonable as to be unenforcable.

This gets even more complicated because conventionally the appropriate
jurisdication is where the consideration was to be exchanged, which in the
case of mail (or internet) order is usually considered the F.O.B. of the
order (most likely your home address unless you represent a business, in
which case it is usually the loading dock of the retailer). However some
states dispute this and say that the consideration is exchanged either
wherever the bank or credit card being billed is addressed, or wherever the
retailer is addressed.

Very confusing, but what it comes down to is it depends on what state you
are in, and what state they are in whether it's a legally enforceable
contract.

The second argument is of course the moral or ethical one. And this one is
even more gray than the legal issue.

If a conventional business makes a mistake and then carries through with the
transaction, they are ethically obligated to uphold the terms of that
transaction. This happens to the airlines all the time. They advertise an
EXTREMELY low fare unintentionally, then sell people those tickets,
ethically they cant go back later and not honor those tickets (and as I
said, in most states legally).

That being said, if you realize that the transaction has an obvious error,
you are ethically obligated to not take advantage of that error. So if you
knew that this was a screwup, (and let's be honest no-one would
intentionally price those drives that low, even as a promotion, since they
would be losing something on the order of $100 per drive) then you cannot
ethically defend your purchase.

Oh and to bring the legal back int it, in some states this is part of the
"reasonable man" standard for determining if a contract is enforceable. In
fact it could even constitute fraud in some cases (if you for example knew
that the value of a piece of land was 100 times what someone was asking for
it because a public works project you worked for wanted the land, and you
bought the land without making that clear to the seller, in some states you
could actually be brought up on fraud charges)



Ok so now with all of that as background, what do I think?

I think that the company should say "look we made a mistake, and if we give
you these drives at this price it will hurt us severely. If you would be
willing to accept the drive at our cost we would appreciate it", and then
give those people the drives at their actual cost (that includes the cost of
shipping, handling, and any transactional fees like credit cards fees
etc...)

If approached honestly anf forthrightly, many people I think will do the
ethical thing, if for no ther reason than guilt. For those that don't, I
think from an ethical, and likely from a legal standpoint the company needs
to honor the contract.


But that's just my opinion, I could be wrong

Chris Byrne <blatantly ripping off Dennis Miller>