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#233967 03/20/08 07:00 PM
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David, I'm not sure I really know the answer to your question. But I tend to think most judges would say, if you agreed to a contract, you agreed to a contract. Period.

#233968 03/20/08 07:04 PM
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I have another question - forgive me if it has already been answered.

I see on the PSS website where it says 6-12 weeks to get the piano, and they can't beat local delivery times.

A few lines above it it also touts PSS as having the 'Fastest delivery time in the industry'.

I'm sure there is some explanation for these seemingly contradictory statements, I'm just not sure quite what it could be. Costco states on their website I can order a Suzuki grand online and have it in 4-6 weeks, adding two more weeks for a player system. Their smaller digitals are 7-10 days. So it can't be the online piano industry.


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#233969 03/20/08 07:06 PM
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A contract is a contract -- or used to be.


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#233970 03/20/08 07:13 PM
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"But I tend to think most judges would say, if you agreed to a contract, you agreed to a contract".

So if the contract says "you will get the piano when it gets delivered" you could wait, say, 62 years before you see the piano?

In my professional contacts with US law I always had the impression that a judge would look at what is reasonable under the circumstances and would have a particular eye to check that the weaker party (here: the individual buyer confronted with standardised rules made as a condition to the deal) is not unduly sacrificed. Also, every lack of clarity in the "rules" would be interpreted against the party who has written the rules, which makes sense.

I had to do with the US law from the "stronger" part (mortgage lender against real estate company as the "weaker part"), and we were advised to be very cautious, because the judge would proceed as I have described above.

In our case we also had to do with very proficient real estate professionals, here even customer protection is in the game.

I personally allow myself to doubt that a judge would react as you say, unless he is particularly lazy or disinterested (and there are of those, there are....).


"The man that hath no music in himself / Nor is not mov'd with concord of sweet sounds / Is fit for treasons, stratagems, and spoils." (W.Shakespeare)

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#233971 03/20/08 07:17 PM
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I would think it would be held to some standard of reasonable performance, however flexible.


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#233972 03/20/08 07:23 PM
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"A contract is a contract -- or used to be."

That was my question.

In Europe it has been not so this last, say, 70 years. It's called consumer protection and if one says "contract is contract" there will never be any worth the name. Given the choice, european legislators have, to a greater or lesser extent, slaughtered the holy cow of "contractual freedom". Contractual freedom is then what is possible within the legal frame established by the lawmaker.

It surprises me that in a country where smokers can sue cigarette producers for damages if they get cancer one should be held hostage of obviously iniquitous delivery rules, but we know it's a country of contrasts.. wink .


"The man that hath no music in himself / Nor is not mov'd with concord of sweet sounds / Is fit for treasons, stratagems, and spoils." (W.Shakespeare)

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#233973 03/20/08 07:39 PM
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Europeans are all a bunch of hippy communists.

#233974 03/20/08 07:52 PM
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"Europeans are all a bunch of hippy communists".

smile smile

Just FYI, Italian consumer protection has been started from a chap called Benito Mussolini.. wink (OK, he slided on the socialist side a bit sometimes, but nothing serious.. wink ..)


"The man that hath no music in himself / Nor is not mov'd with concord of sweet sounds / Is fit for treasons, stratagems, and spoils." (W.Shakespeare)

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#233975 03/20/08 08:16 PM
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PSS's website clearly states that order cancellations incur a 20% penalty. It gives a three day cut-off for a 100% refund but no discernable time limit on the cancellation and could easiy be as long as the rivers flow, etc or however long it takes to get the piano which could also be as long as the rivers flow etc.

I'm assuming this is reflected in the contract signed by Enzo. (Enzo's easiest remedy for lack of performance is to cancel the contract and chalk up the 20% to education.) If so, Enzo hasn't a leg to stand on with the BBB or the BBC or any judge I know of if you find a lawyer silly enough to bring it before a judge who would ask if you had to wait 62 years why you didn't get your 80% back per the contract and if you did what the heck are you snivveling about? 20% restocking is a bit on the high side but not unreasonable by any stretch.

(If you presented your case in a querelous British accent an American judge would be well within his rights to have you taken out back'a the courthouse and severely beaten.)

Hoaglie

#233976 03/20/08 08:24 PM
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If there is no specified time for delivery in the contract, the court will look at the customary time period for delivery in the industry and fill in the blank with that period. If the customary time period passes with no delivery, I expect that a court would consider the contract breached by the seller and order the payment returned to the buyer, probably with interest, given that there is nothing about that in the contract, either. This is based on the idea that reasonable contracting parties would agree to a time within which delivery must take place that is reasonable in the industry, and also that failure to deliver within that time period would cause the seller to owe the buyer his or her money back, with interest.

Oddly enough, in response to a couple of the more cynical posts above, commercial law tries to be fair to all parties. The seller, who probably drafted the contract, could have specified a time period in the contract, which the buyer could either have accepted or rejected, at the time that the contract was formed. It makes sense that omissions from the contract be charged against the author of the contract--they could have included a term relating to the issue, but did not. It is not a matter of freedom of contract, it is a matter of interpreting the contract into which the parties entered, given that the terms have proven to be vague or not included at all. It is unreasonable, in the absence of a delivery period, for the court to conclude that the delivery period could be, say, 62 years, so the court will have to figure out what the parties most likely intended the delivery period to be. Use of a reasonable period in the industry thus makes sense to fill in a term that was omitted from the agreement.

Of course, the court could also conclude that the contract fails (and is therefore void) because it is missing too many terms, meaning that there was never a contract formed in the first place. This would lead to the same result as above: the buyer would get his or her money back, with interest.

Just my two cents, as they say.

#233977 03/20/08 08:28 PM
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P.S. Hoaglie posted at the same time as I wrote the above post. In a situation where the seller has breached by not delivering the piano within a reasonable time period, the 20% cancellation clause would not apply, because it would not be the buyer cancelling the contract, it would be the seller breaching it. The 20% restocking fee or whatever it is only applies when the buyer cancels.

At least that is what I think.

#233978 03/20/08 08:28 PM
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Quote
Originally posted by Hoaglie:
PSS's website clearly states that order cancellations incur a 20% penalty. It gives a three day cut-off for a 100% refund but no discernable time limit on the cancellation and could easiy be as long as the rivers flow, etc or however long it takes to get the piano which could also be as long as the rivers flow etc.
Hoaglie
Now that is one heck of a smart business; Take an order, collect the money (stick it in a (safe) interest bearing account), never deliver the product, pay back 80% in six to ten months.

Take the money and run!
eek

Why didn't I think of that?


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#233979 03/20/08 08:29 PM
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"If there is no specified time for delivery in the contract, the court will look at the customary time period for delivery in the industry and fill in the blank with that period. If the customary time period passes with no delivery, I expect that a court would consider the contract breached by the seller and order the payment returned to the buyer"

It appears I am not the only one who would be severely beaten... wink

"At least that is what I think".

I fully agree.
I my eyes the 20% protect PSS from the whim of the client who just "changed his mind" after giving an order; not from his own inefficiency or incapacity to deliver the goods.

"Why didn't I think of that?"

Because it wouldn't stand in front of a judge? wink


"The man that hath no music in himself / Nor is not mov'd with concord of sweet sounds / Is fit for treasons, stratagems, and spoils." (W.Shakespeare)

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#233980 03/20/08 08:32 PM
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Quote
Originally posted by Rank Piano Amateur:
If there is no specified time for delivery in the contract, the court will look at the customary time period for delivery in the industry and fill in the blank with that period. If the customary time period passes with no delivery, I expect that a court would consider the contract breached by the seller and order the payment returned to the buyer, probably with interest, given that there is nothing about that in the contract, either. This is based on the idea that reasonable contracting parties would agree to a time within which delivery must take place that is reasonable in the industry, and also that failure to deliver within that time period would cause the seller to owe the buyer his or her money back, with interest.

Oddly enough, in response to a couple of the more cynical posts above, commercial law tries to be fair to all parties. The seller, who probably drafted the contract, could have specified a time period in the contract, which the buyer could either have accepted or rejected, at the time that the contract was formed. It makes sense that omissions from the contract be charged against the author of the contract--they could have included a term relating to the issue, but did not. It is not a matter of freedom of contract, it is a matter of interpreting the contract into which the parties entered, given that the terms have proven to be vague or not included at all. It is unreasonable, in the absence of a delivery period, for the court to conclude that the delivery period could be, say, 62 years, so the court will have to figure out what the parties most likely intended the delivery period to be. Use of a reasonable period in the industry thus makes sense to fill in a term that was omitted from the agreement.

Of course, the court could also conclude that the contract fails (and is therefore void) because it is missing too many terms, meaning that there was never a contract formed in the first place. This would lead to the same result as above: the buyer would get his or her money back, with interest.

Just my two cents, as they say.
Those would all be very valid points...if, as you suggest, there was no contract provision on the issue of delivery times. However, here, that is not the case. The terms very specifically say that delivery periods can not be guaranteed. Period. That's a contract term, and it is not inherently unreasonable. A court would not look to "industry standards" to override a contract that specifically addressed the question.

#233981 03/20/08 08:35 PM
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"That's a contract term, and it is not inherently unreasonable".

Fully agree with you too.

But *there will be a point in time where it becomes*.
That's why I made the example of the 62 years.


"The man that hath no music in himself / Nor is not mov'd with concord of sweet sounds / Is fit for treasons, stratagems, and spoils." (W.Shakespeare)

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#233982 03/20/08 08:40 PM
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The problem with J. Mark's response as a legal matter is that there is no provision for a reasonable cut off. Under this interpretation, a 62 year delivery period would be okay. A court would not let this stand--the court would agree that under the contract the delivery time cannot be guaranteed. The decision would not end there, however. This completely open-ended interpretation would lead to the 62 year period mentioned above, which would render the whole contract ridiculous. The court would therefore plug in a reasonable period for delivery as I discussed above, given that no period was specified, and given that a contract that allows a 62 year period would be void. Actually, by plugging in a reasonable period for delivery the court is saving the contract from being ruled unenforceable because of the omission of an essential term--the delivery period.

As before, this is just my opinion.

#233983 03/20/08 08:45 PM
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You guys are both right that a 62 year delivery time would be held inherently unreasonable by any court addressing that question. The problem is, that's what we call a hypothetical, and courts are not in the business of dealing with hypotheticals -- and do not interpret contracts in light of them. They interpret contracts in light of realities. If someone waited 62 years to try to claim a breach, they would probably be tossed out on laches and statute of limitations grounds.

Yes, there will be a line somewhere that can not be crossed. But with a specific contract term very clearly stating that delivery times can not be assured, that line is going to be pretty far out. I honestly don't think we're looking at something that is over that line.

But then, I'm not a communist or a European. smile

#233984 03/20/08 08:58 PM
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This thread started out with Bruno asking if the Piano SuperStore was a legitimate business because he was getting nervous about delivery.

Terry came on and promised that he would look into the order and find out what is going on.

It's my understanding (and either Terry or Bruno can tell me if I'm wrong) that Bruno and Terry have conversed and that Terry is willing to give a full refund and that Bruno is deciding by Monday whether he wants that refund or if he wants to wait for the piano he ordered.

I know everyone is trying to be helpful, but I think we're drifting from being helpful to giving endless commentary on Terry's business. Whether or not people like or dislike Terry's business model this really isn't helping anything.

If the way Terry's model works is that it takes 12 weeks OR 62 years to deliver a piano it's between Terry and his customers. If we don't approve, then we have a choice - and that's to NOT be his customer. If Terry has enough customers to justify his policies then they will stand. If customers choose to do business elsewhere, then Terry will have to make a business decision on whether to change his policies.

I think the best thing we all can do at this point is to wait for word from Terry and Bruno that things have been resolved satisfactorily (or not).

Ken


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#233985 03/20/08 09:03 PM
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J. Mark: Well, I'm not a European so I must be the Communist here. Your response actually invites the correct conclusion: "there will be line somewhere that can not be crossed." The question is, where? And there we are: a reasonable period. The 62 years is just an example. If a customer said, I am not waiting any longer, please refund all my money with interest, I have been waiting for delivery so long as to put you, the seller, in breach, then the court would of course deal with the facts before it in deciding whether the contract had in fact been breached by the seller. The court would inevitably either use a reasonable period or (less likely) say that the contract was never valid because there was no specified point in time within which delivery had to occur. The time period for delivery would not get extended merely because delivery was not guaranteed within a specific time frame.

If this statement of the law makes me, the judge, and the authors of the Uniform Commercial Code into Communists, then so be it. Karl Llewellyn would be astonished. So would the judge, I imagine.

It is clear, incidentally, that we are no longer talking about any specific sales situation, but rather about piano sales (actually all sales) generally. I am finding this dialogue very interesting, as it parallels a lot of discussions in the law about contracts and when judicial participation (interference, to some) is mandated. Threads on this forum often wander from their original point of origin--that is one thing that makes the exchanges so interesting and entertaining.

#233986 03/20/08 09:09 PM
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Karl Llewellyn? Well, he has the same first name as another guy I've heard of who I'm pretty sure was a communist. So that just proves my point!

Sorry, Ken... I'm outa here now. I hear ya.


Edit: Rank, I agree completely. It almost feels like law school again, and I really enjoyed law school. Too bad we can't be doing this over a beer somewhere. smile

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