Here is the question again?

Question

Justin, a dealer in rare records, acquires a valuable record by the Rolling Stones. He decides to give three of his regular customers, Dan, Frankie, and Ed, the chance to buy the record and writes to each of them telling them of this ‘once in a lifetime chance’. He states in his letter that he is prepared to sell the record for around £100 and asks them to telephone him by 4pm on 25 May if they are interested. The three respond in the following ways.

(i) Dan telephones Justin on 24 May indicating that he wants to buy the record for £80.

(ii) Frankie replies by email early on 25 May, saying ‘I agree to pay £100, as long as you provide a letter confirming the record’s provenance.’

(iii) Ed posts a letter on 24 May indicating that he wants to buy the record for £90 or £20 more than anyone else has offered. The letter is delayed in the post, even though it is correctly addressed, and does not arrive until 26 May.

By the time Justin receives Ed’s letter, he has already sent the record to Frankie with a covering letter saying that he cannot provide a letter of provenance. Justin now wants to recover the book from Frankie and sell the book to Ed for £120.

Advise on Justin’s legal position

Answer 1

he has no recall, once the record was sold it became the property of frankie, the only way he could get it back is if the monies were found to be fake or the cheque bounced.

just be pleased, some people sell paintings at car boot sales for a few pounds then find they sell later for 1000's.

Answer 2

Justin's original communication was not an offer - it was a solicitation for an offer. His initial communication was not firm on the element of price.

1. Dan's phone call was an offer. Justin did not return the phone call, so he has not accepted. Even if we were to change the hypo and make Justin's letter to the three an offer by saying he is prepared to sell for 100, Dan's call is still not an acceptance, because he is offering less than 100, so Dan's communication would be a counteroffer, and would revoke his right of acceptance.

2. Frankie's letter is either an offer or a counteroffer, as the demand for provenance is an additional term. His letter does not serve as acceptance of Justin's offer or solicitation of offer. Justin's sending Frankie the record without provenance is a counter-offer, which Frankie can accept or reject.

3. Ed's letter, could be just an offer (for the same reasons as in #1), but as he has offered to meet or beat the asking price and any other offers, I think it is probably an acceptance. However, Ed did not reply in the manner that was mandated by Justin's letter.

The fact that Ed's letter didn't conform to Justin's request doesn't void the acceptance, it just means that Justin has the right not to form a contract based upon the fact that Ed didn't conform.

Ed is the only one of the three that made an "acceptable" acceptance. Justin made a counter-offer to Frankie by sending him the record without provenance, so Frankie has a reasonable time to accept or reject the new offer of 100 without provenance, and if he accepts, Justin cannot send the record to Ed. If Frankie offers less, or sends the record back, then Justin is free to sell to Ed.

Answer 3

Justin requests communication by telephone. The fact Ed choses to communicate by letter means he has no comeback really if he missed out.

The fact there were multiple offers means someone was going to miss out anyway. Justin was entitled to accept whichever offer he chose.

Now given the letter arrives on 26th May, just a day after the deadline, Justin must have really rushed to chose his best bid. In his haste he made a bad choice, he posted the Record to Frankie despite it not complying with the terms of Frankie's bid.

As there is no record of provenance it isn't what Frankie bid for. Under the law Frankie is entitled to treat it as unsolicited goods, which means he is not obliged to send it back or pay up. Morally he should either send it back or pay up, but legally Justin has messed up and hasn't a leg to stand on.

Justin isn't entitled to get the record back, he's just going to have to live with the mistake and hope that Frankie either pays up or returns the record.

Answer 4

If Justin's letter was an offer, it would have created the power of acceptance in offerees.

Justin's letter was not an offer, it was a statement of the available opportunity and a request for interested parties to contact him.

Dan's 24 May call was an offer to purchase the record for £80, which created in Justin the power of acceptance. The offer complied with Justin's terms (telephonic notification).

Ed's 24 May letter was an offer to purchase the record for £90, OR to exceed other offers by £20. This offer created in Justin the power of acceptance, should Justin choose to waive the failure to use Justin's requirement of telephonic communication.

Frankie's 25 May email was an offer to purchase the record for £100 and a letter of provenance. This offer created in Justin the power of acceptance (should Justin waive Frankie's failure to telephone as specified), ACCORDING TO ITS TERMS.

Justin has sent the record to Frankie with correspondence indicating that he cannot accept the offer according to its terms (the required letter of provenance). His sending the record is a waiver of the requirement to telephone.

Because Justin's acceptance of Frankie's offer did not comply with all terms (the letter), Frankie has two options:

1) Waive the condition (the letter requirement), and accept Justin's offer to sell the record for £100; or
2) Decline to waive the condition, decline Justin's imperfect acceptance, and make arrangements to return the record.

Justin's legal position is that he has made an OFFER to Frankie, which may be rescinded at any time prior to Frankie's acceptance.

If Justin wishes to sell the record to Ed for £120, Justin should immediately contact Frankie to rescind his offer and arrange to recover the record. Justin should communicate his recission by the fastest available means: a phone call, if possible. If Justin sends his recission to Frankie by mail, the recission would be effective on receipt...while Frankie's acceptance would be effective when dispatched.

If Frankie accepts the offer before Justin rescinds it, Justin cannot recover the record.

Answer 5

In retail it is first come first served. Think of a sale at Macy's for instance. If you get there and buy the last suit and somebody comes after you leave and says that they left their house an hour early and will pay full price but had a flat; the second person still has no right to the suit and Macy's has no right to ask for the suit back.

Unless Frankie doesn't want the album, Justin is justified in stating that no response on the part of Ed (regardless of the mail system sucking) made the decision to sell to Frankie an easy one. On the other hand, Justin has no right to ask for the album back because the decsion to sell to Frankie was made prematurely. If he really wanted to hold out for a better offer he should have waited to her back from the third party, Ed in this case.

Justin is pretty much screwed for his impatience.

Answer 6

A very interesting question which needed a bit of thinking about.

I believe because Justin wrote and 'asked' them to telephone him by 4pm on the 25th but at no time did he expressly state that after that time he WOULD sell the record to the highest bidder, or to Ed Frankie or Dan, he is under no legal obligation to sell it to any of them, or at all.

He merely asked them to express their interest by telephone.

After the deadline, Justin decided to take a chance and sent the record to Frankie without the letter of prominence Frankie wanted. If Frankie decides he does want the record even without the prominence, it is for him to decide and pay for it and Justin is obliged to accept this.

Frankie is also legally entitled to return the record and refuse to buy it because of the lack of prominence.

If he does this, Justin is quite within his rights to sell it to either Ed or Dan, or anyone else.

I believe that because he wanted them to show their interest by phone does not matter. The fact that they all did express a desire to buy the record is sufficient, no matter what media they used.

Also, as Justin did not expressly say he would sell it to any of the three contacts, only that he was 'prepared' to sell it for around £100, or that he would sell it to the highest bidder, Justin is quite entitled to sell it to anyone (provided Frankie decides he wants to return it).

That is what I believe the legal position is likely to be.

However, morally he should sell it to Dan, even though his was the lowest bid, because Dan fulfilled everything that Justin asked for. Dan telephoned as requested before 4pm on the 25th and made a firm bid.

Poseidon

Answer 7

Justin doesn't have a legal position. He has sent the record to Frankie and so it is all down to whether Frankie wants to keep it or not without the letter of provenance. If he does then he must pay Justin the agreed sum of £100. If he doesn't then he must return it.

Answer 8

Once the financial transaction has taken place between Justin and Frankie then that is it. It's like Comet wanting the TV I bought back from me so they can sell it for a higher price to someone else. Once the deal is done and money has passed hands it is legally his.

IF no financial transaction has taken place, then it could get tricky. Like on eBay if you agree to buy then change your mind. Justin has undertaken a verbal comittment to sell to Frankie, but this is something maybe a legal eagle could look into. If I was Frankie I would look at getting some professional advice.

Answer 9

He could offer to buy back the record, but it might cost more than the £120. As he did not provide the letter of provenance he has violated the terms of the contract between himself and Frankie, therefore Frankie holds all the trump cards as well as the record, the next move is up to him.

Answer 10

justin as not got a legal position he no longer owns the record he as sold it. and he cannot be held responsible for the failings of the royal mail to deliver the letter with the offer in time.
justin as nothing to fear fom retribution from no one he sold it to the highest bidder at the time the he had stated as the deadline for offers to be recieved. the offer that was late was not even considered because it faled to arrive in time for the deadline