What do you mean by an "undefined contract"? Contracts of sale at least define the item sold and the price.
Sorry that was a bit of bad wording on my part.  It was late and I think I was getting tired. Towards the end of the night I was reading about contract termination. I did run across several places were termination was being discussed. In turn, I realized that most of the places'/businesses have this ability are using "Terms and Conditions" that contain explicit termination clauses. By "undefined", I meant in the absence of a terms and conditions explicitly expressing a termination rights or expressing specific delivery dates, it seems that this then falls to whether or not the local jurisdiction has additional laws that qualify a seller or buyer for the right to terminate the contract of sale. Otherwise, both parties are locked into an infinite contract of sale until they mutual agree to adjust the terms to allow for a mutually agreed upon exit. I agree that the additional laws may be relevant, and that is indeed the reason for such laws to be in place: to govern contracts where the terms and conditions do not address a specific topic. The difference between UCC and more specific consumer protection laws is that the latter cannot be "contracted out" -- in other words, a provision that states "This Act does not apply" is invalid. On the other hand, in some jurisdictions, UCC-like legislation can be "contracted out" by explicit language in the "Terms and Conditions". You also seem to be mixing "indefinite contract" (which is something like a subscription) with the contract for the sale of a specific number of units of a specific goods. |
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Next up: What else can MSantori get besides the $200? Can he also get the value of all of the money he would have made from the widget?
I really don't think he could nor should he as this would set a dangerous precedent. What if the value of said goods that widget was to create went down? Can the manufacturer of said widget be held liable for that? For another perspective. Lets say I make gold mining equipment. I state the performance of said equipment will be <x> equipment performs to that standard. However gold prices have dropped. Am I liable? Lets take it a step further, I don't sell you the equipment, you find another source for something similar. But it takes longer to get delivered. However the price still goes down. Is the manufacturer liable for the loss? And how much of the loss? You are certainly not responsible for any change in the gold prices as long as you deliver on time. If you fail to deliver or deliver late, then the price of the gold between the reasonable time of delivery and the actual time of delivery affects the amount of lost earnings and thus the consequential damages. |
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You do realize that was not "Hur, hur, hur, get a refund, then!", right? You were talking about calculating your potential earnings from November 2012 to the present. My point is that you could have asked for a refund at any time within that period, but didn't. So I don't think you would be entitled to "damages" within that timeframe. And that those damages would be zero in any respect. I suspect that earnings calculated for a 12 month period after you would have received your orders would still be quite substantial, and are a much more justifiable target for damages. And lastly (and as a non-lawyer), while I personally think BFL probably has the legal right to act as they have, it was a shitty thing to do, and they should not have. But on the other hand, you appear to have worked very hard to make it happen. grnbrg. PS: Ivan says "Hi." back. Or something like that.  I respectfully disagree. The point is not about getting back the money in November 2012, but rather getting delivery in November 2012. If delivery is delayed, and it affects the earning capabilities of a person, then these are legitimate consequential damages that are payable by the seller. |
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In which state would Customer A have to file to seek restitution if the transaction took place over the internet?
The state where Widgetco is located? Or the state where Customer A lives?
If Widgetco advertises in the state where Customer A lives, then it already creates a real and substantial connection to that state (which is the test, at least in Canada, for jurisdiction). If the contract of sale provides for delivery to Customer A's address, then it strengthens the tie to that state, and makes that state the right forum for taking legal action. |
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I am terrible with math.
Would a kind soul be able to calculate the BTC earnings of 120GH/s (Two 60GH/s Single SC's) worth of processing power sustained to present day, assuming I took delivery of my pre-orders on November 1st, 2012.
It would be most appreciated.
You will need to gather historic data on past level of difficulty. I suggest using an Excel spreadsheet. |
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400.2-106 . . .
(3) "Termination" occurs when either party pursuant to a power created by agreement or law puts an end to the contract otherwise than for its breach. On "termination" all obligations which are still executory on both sides are discharged but any right based on prior breach or performance survives.
So, in order to "Terminate" a contract, there is a need for an explicit clause in the contract or a law that specifically allows for doing so. In the absence of both, the contract cannot be terminated. In addition, what rights are there in an undefined contract? Are they explicitly denied a right to termination because the contract itself is undefined? or is that an implied right? What do you mean by an "undefined contract"? Contracts of sale at least define the item sold and the price. |
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Yes I encourage either a PM or thread to pursue your interests. @drlukacs on the Freudian "threat" wording . ..rofl . . .just jovial jibing of somebody I respect.
I admit, you caught me -- it was a Freudian slip. |
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I have got a spare btc lying around to start a fighting fund to follow this through !!!!
Honestly I think we cant raise 10-20 btc to get BFL to be held to account ...We not only have Xian but also another user who was dealt with in the same way
While this is a legitimate discussion too, I agree that this is not the right thread for it. But if you want to start a threat about this, please let me know. |
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400.2-106 . . .
(3) "Termination" occurs when either party pursuant to a power created by agreement or law puts an end to the contract otherwise than for its breach. On "termination" all obligations which are still executory on both sides are discharged but any right based on prior breach or performance survives.
So, in order to "Terminate" a contract, there is a need for an explicit clause in the contract or a law that specifically allows for doing so. In the absence of both, the contract cannot be terminated. |
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A fact pattern that illustrates the need for sales contracts to remain intact:
I run GoldBuyer Co. I offer to sell people gold for $10 below spot price and I guarantee delivery of gold within 3 weeks. The customer pays the full amount at the time of purchase. I actually only buy the gold 4 days before I deliver it.
My business model is as follows:
If at the time I purchase the gold the spot price for gold is higher than the amount paid by the customer, I dissolve the contract and give them a refund. I make money on 16 days of deposit interest.
If at the time I purchase the gold the spot price for gold is lower than the amount paid by the customer, I fulfill the order and ship the customer their gold. I pocket the difference between the spot price and the price the customer paid for the gold. I also make interest on 16 days of deposit.
If sellers can unwind any contract they choose citing only that they don't like the customer, bad things happen.
Excellent point. |
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This thread has really taken off since I last posted! There is a lot of information in this thread, some of it correct.
I think the best way to explain the BFL situation from a legal perspective is by using a fact pattern (lawyers love fact patterns).
MSantori buys a widget from Widgetco for $100. Widgetco's website says: "We don't know when you'll get your widget, but we promise we'll ship widgets when we receive them from the manufacturer, and in the order in which we sold them. All sales are final."
If, a month after purchase, Widgetco refuses to ship its widget to Msantori, and instead "cancel's" Msantori's order, then Widgetco is in breach of a material term of the contract. MSantori's was probably not a contract "absent a specific time provision" There was a specific provision as to time: "when we receive them from the manufacturer, and in the order in which we sold them."
WidgetCo would be liable to MSantori for his "expectancy damages": the value that MSantori would have realized but for the breach. What would MSantori have if not for Widgetco's breach? At the very least, he'd have a widget. How can MSantori get a widget now? Well, if a widget now costs $200, then the measure of MSantori's expectency damages is at least $200.
Next up: What else can MSantori get besides the $200? Can he also get the value of all of the money he would have made from the widget?
Your fact pattern is a good first approximation. (The difference is that In the case of BFL, it is also the manufacturer of the goods.) I also agree that "if a widget now costs $200, then the measure of MSantori's expectency damages is at least $200." Earlier, some members asked for caselaw (authorities) on these points. Would you be able to refer them to cases where such damages were awarded for the seller simply "cancelling" the order o the buyer? |
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Is there a citation to this affect? I don't oppose you on this. I just would love to see the verifiable court opinion. As a buyer I truly hope you to be correct, but I'm hesitant/unwilling to pursue based on conjecture.. .granted the discussion has been primarily conjecture, but in optimistic pursuit, I'd hope for verification of belief.
You yourself cited the law in this respect (see section (2)). |
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especially given 400.2-106 consistent theme of mutual rights to termination. it seems the code is expressing the right of termination to be available barring prior agreement/explicit definition. I'm hard pressed to agree that it is a reasonable assumption that monetary pursuit would be fruitful in the eyes of the court. If it is, yay consumer! but I would need specific citation of case before being able to accept this as reasonable proposition. I am continuing to try and find such validation, but have yet to achieve a result that would propose it to be valid to a level I would personally find to be back-able. If you know of such a case I would be highly supportive of a posting. ..
I honestly do not understand what you meant here. The right to termination exists only for contracts for successive performance that is indefinite in duration, such as a subscription. Otherwise, once the contract was concluded between the parties, it is a done deal. |
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Many times there are successive deliveries in pre-orders. .. 1 order or several orders changes the rights of a seller or buyer? "Absence of Specific Time Provisions" seems to be strongly worded as a heading and I could grant argument of (2) but I still believe (3) to be applicable . . . .I don't see mutual exclusivity here
If you read (2), it refers not simply to successive deliveries, but an indefinite contract (i.e., subscription): "If the contract provides for successive performances but is indefinite in duration" This is clearly not the case that we are discussing here. |
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is it possible BFL would have delivered if the customer had represented a valuable relationship? I don't see where BFL wouldn't have delivered, even though the date was different than the initial and reasonable questionable initial hope. He was literally within a few days (based on order date) of delivery and still chose to present arguable debate. . . . .right or wrong it's reasonably questionable and if he had issue it should have been represented as formal complaint instead of conjecture.. ..
none of that is satisfied by action of either parties account. ...
damn it.. .lets get back to education. ..arguing that highly emotional example doesn't help the community as a whole and was promised to be moderated.
Once the contract was concluded (i.e., offer to purchase was accepted), and payment was made, the only reason that a seller can cancel the order is if the buyer explicitly asks for it, and the seller agrees to it. (I note that similarly, the buyer cannot ask for a refund, unless the seller fails to deliver.) |
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what i can't believe is that in america, people can win the biggest lawsuits and gain a hell of alot of money from it for almost anything and it happens ALL the time, yet not one person has decided to take BFL *the assholes* to court for their illegal business practices, i mean if people arn't taking them to court becouse they were actually nice guys who are having trouble on timing that would be understandable, but everything that comes from josh's mouth and other at BFL (whether it be nothing at all ) proves that these guys are DOUCHEBAGS who dont care about its customers and worst of all screws them over, like what happened to xian,
xian should have his bitcoins refunded not his cash, and should not have the contract unilaterally ended for being angry at BFL when its BFL fault,
I really hope someone makes a stand to BFL and prove to the whole bitcoin community and BFL that they don't have the power.
Power is in with the consumers, not the company in most cases
BFL has done nothing to prove it deserves power over the consumers apart from ranting about its asics which has hardly been sent after a year, yet they think they can get away with disgruntling its customers month after month, week after week day after day, gaining interest rate on the bitcoin, ITS REDICULOUS!
I really hope to someone or a group of people take BFL to court for their atrocious business ethics
Atrocious business ethics are not actionable. Breach of contract (or as some suggested: fraud) are actionable. |
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here's another interesting section that may (contradiction is invited) address preorder.
§ 2-309. Absence of Specific Time Provisions; Notice of Termination.
(1) The time for shipment or delivery or any other action under a contract if not provided in this Article or agreed upon shall be a reasonable time.
(2) If the contract provides for successive performances but is indefinite in duration, it is valid for a reasonable time but unless otherwise agreed may be terminated at any time by either party.
(3) Termination of a contract by one party except on the happening of an agreed event requires that reasonable notification be received by the other party and an agreement dispensing with notification is invalid if its operation would be unconscionable. A term specifying standards for the nature and timing of notice is enforceable if the standards are not manifestly unreasonable.
I read this as, barring some huge unfair burden ("its operation would be unconscionable") or it occurring on some some agreed upon event (delivery of product, in the case of pre-order). With some kind of "resonable notification" (email or snail mail or forum post), unless other wise specified (SLA or delivery contract or Term/conditions) a seller could terminate the contract. One of the only ways, I think, that this could be argued against would be if the business unilaterally terminated all contracts of sale in an effort to utilize this as a "loop hole". 1) substitution of "a reasonable time" for lack of a specific delivery time 2) the contract does not provide for successive deliveries (like a subscription) so this does not apply, but it mainly says that a subscription contract can be canceled if it doesn't specify how many items or for how long the subscription is for. 3) just says you are in violation of the UCC if you decide to unilaterally terminate a contract and do not notify the other party. It does not absolve you of any responsibilities in the contract just because you notified the other party. According to the UCC: failure to deliver means the seller must make restitution for the value of the contract, for the value of comparable goods, or arrange for comparable goods to be delivered if it chooses not to deliver the original goods in the sale contract. BFL made the sale, the buyer paid in full, BFL did not deliver, the value of the goods rose, BFL chose not to honor the contract, BFL then resold the goods in question at a higher price (via more pre-orders). Pretty cut and dry. BFL's choices are to: arrange for the purchased amount of GH/s to appear in Xian's mailbox, re-instate his order, or pay the going market price for an early BFL order at the time of the cancellation. I agree. I would add that BFL will likely be on the hook for consequential damages too (e.g., the buyer's loss of revenue as a result of the non-delivery). |
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It seems that you are reading (3) without reading (2) -- the two are interrelated, though: here's another interesting section that may (contradiction is invited) address preorder.
§ 2-309. Absence of Specific Time Provisions; Notice of Termination.
(1) The time for shipment or delivery or any other action under a contract if not provided in this Article or agreed upon shall be a reasonable time.
(2) If the contract provides for successive performances but is indefinite in duration, it is valid for a reasonable time but unless otherwise agreed may be terminated at any time by either party.
(3) Termination of a contract by one party except on the happening of an agreed event requires that reasonable notification be received by the other party and an agreement dispensing with notification is invalid if its operation would be unconscionable. A term specifying standards for the nature and timing of notice is enforceable if the standards are not manifestly unreasonable.
I read this as, barring some huge unfair burden ("its operation would be unconscionable") or it occurring on some some agreed upon event (delivery of product, in the case of pre-order). With some kind of "resonable notification" (email or snail mail or forum post), unless other wise specified (SLA or delivery contract or Term/conditions) a seller could terminate the contract. One of the only ways, I think, that this could be argued against would be if the business unilaterally terminated all contracts of sale in an effort to utilize this as a "loop hole". So, the seller can terminate a contract that involves successive performance for an indefinite period (for example, a delivery of a newspaper to your doorstep every day). This is entirely different than the delivery of a single (or a few goods) once. |
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This is where the issue becomes, there is no written contract, it's implied, retail sale of goods implication. So in this instance it would be up to the court to make the aggrieved party whole. How would they do that? By ordering the refund of the purchase price. This has been done so what other remedy is available?
I suggest that you review our past discussion on Missouri UCC. There are number of other heading of damages that can be sought in the case of breach of contract: "cover" costs, consequential damages, incidental damages, etc. |
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Nobody was talking about hurting anyone. That would be illegal. Suing, though, is a different matter. It is great that Sonny and/or BFL may already have retained counsel (as it appears). Perhaps some of this discussion should be sent to them. |
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