I would be hesitant to characterize the sale as a "forward contract". I would be inclined to characterize it as a sale of future goods (emphasis added): Definitions--transferability--"goods"--"future" goods--"lot"--"commercial unit".400.2-105. (1) "Goods" means all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities (article  and things in action. "Goods" also includes the unborn young of animals and growing crops and other identified things attached to realty as described in the section on goods to be severed from realty (section 400.2-107). (2) Goods must be both existing and identified before any interest in them can pass. Goods which are not both existing and identified are "future" goods. A purported present sale of future goods or of any interest therein operates as a contract to sell. That is precisely what a "forward contract" is. It is a contract of sale between private parties for future goods at a fixed price. A "future contract" is a standardized forward contract offered by exchanges. More about them here: http://www.investopedia.com/ask/answers/06/forwardsandfutures.aspForward contract or future contract is a term used in the context of investments/securities. The term used by UCC (which is what one wants to use before a judge) is a "contract for sale of future goods." |
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Unfortunately, car dealerships do not use future contracts for goods that I can discern. They take deposits to reserve the car. They are still subject to the same terms however, and there are a lot of consumer protection laws that call out specifically what car dealerships may do. Tesla for instance took a $5000 deposit on their model S cars before production began.
A deposit is not the same as a contract of sale. In the present case, BFL has received full payment for the item(s) sold. |
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Customer goes to a car dealership, picks the car he wants but it isn't in stock, so he's told it will be delivered in 2 months, and he pays the current price for the car in full at that point in time. 2 months pass, and the car he ordered is delivered to the dealership. The dealership sees that he can sell the same car to a new buyer for 67% more. So he calls up the original customer and says, sorry, I changed my mind, you can't have that car after all, because I'd rather sell it to someone else for more money. Here's your money back.
Very good example. |
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To summarize the legal position of Xian:
The contract that Xian and BFL entered into was not a normal sale, nor was it a pre-order. Pre-orders involve either deposits or credit-card authorizations, but not the full amount (at least according to Amazon, Barnes & Noble, Ebay, Newegg, Best Buy, and Apple). If you order something that is not in stock, the online retailer will not charge your credit card until they ship the product. The contract entered into with BFL was called a foward sale.
An example of a forward sale is a farmer agreeing to sell soybeans a year from now to ADM for $540 a ton. Suppose that when the soybeans are finally ready the market price for soybeans is $800 a ton. The farmer is still obligated to sell them to ADM for $540. The farmer cannot legally unilaterally void the contract then refund the $540 to ADM and turn around and sell his soybeans to someone else for $800.
However, this is precisely what BFL did. They agreed to a contract to sell a specified amount of future units for a specified price. The market price of the contract rose five-fold. BFL then canceled the contract without compensating Xian for the fair market value. Finally, they turned around and sold the merchandise that Xian had rights to for more money to someone else (again via forward sale, but for a higher price than Xian paid).
Moreover, BFL does not support purchase of their products with credit cards. Why? For the simple reason that the credit card companies would not let them have pre-orders longer than 30 days, would not let them charge the full amount without delivery of product, and will come after them with lots of lawyers if they tried to do so.
The method of payment does not strike me as being particularly relevant to the issue of contract. I would be hesitant to characterize the sale as a "forward contract". I would be inclined to characterize it as a sale of future goods (emphasis added): Definitions--transferability--"goods"--"future" goods--"lot"--"commercial unit".400.2-105. (1) "Goods" means all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities (article and things in action. "Goods" also includes the unborn young of animals and growing crops and other identified things attached to realty as described in the section on goods to be severed from realty (section 400.2-107). (2) Goods must be both existing and identified before any interest in them can pass. Goods which are not both existing and identified are "future" goods. A purported present sale of future goods or of any interest therein operates as a contract to sell. |
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Sure thing, let me finish this research and come back with the input from some legal forums, we'll figure out how to address this topic in a constructive manner.  I'll post something this evening and we can make a thread for the content and cross link it I look forward to that. |
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Good. The point of this thread is largely complete.
1) Xian now has the ability to recover the current market value of an early BFL order
2) Xian also now has the relevant sections of UCC & Missouri Consumer Protection Act to go after BFL both in Missouri and the state in which Xian lives.
3) You have been outed as an astro-turfing account trying to deflect any legal discussion and derail the thread. This might signify that someone really hit a nerve over at BFL.
While I agree with items 1 and 2, with due respect, I disagree with item 3, because such comments do not assist members of the community. |
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Are you finally dropping all pretense of the int30h account?
Compare the following two posts, notice the bizarre use of periods and phraselets instead of sentences.
Why does it matter whether there is one or two username? What matters is the state of the law as to the obligations of sellers and buyers. It appears that we did find some answers to those questions, and these answers were accepted by your nemesis. What is the point then in arguing about usernames and identities...? |
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I'm hoping to find a discussion board that I can post on to get some more legal minded people involved. .and I can return with more opinions . . . .this forum (obviously) make it difficult to have an intelligent conversation about what the factual legal obligations of a company are. .. .like I said it's something that everybody who purchases mining products needs to know. . .
Thanks for your compliments. I believe there is a thread for legal discussion even on this forum, although there the focus might be more on taxation and regulatory matters, but it may be worth a try. If you would like to propose a topic title and a place to post it, I can try to act as a moderator, to ensure that only civilized and constructive postings are allowed. I have no problem with anyone disagreeing with a view, but it is distracts from the main issue when people start getting personal and engage in ad hominem attacks. |
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can you show where it says they are not explicitly allowed to cancel the agreement?
I see where they can't "wrongfully" do it. . .but still haven't seen where it says they can't do it
UCC imposes a general obligation on both the seller and the buyer: General obligations of parties.
400.2-301. The obligation of the seller is to transfer and deliver and that of the buyer is to accept and pay in accordance with the contract. Next, the rights of the buyers is described as follows (the underlining is mine): Buyer's remedies in general--buyer's security interest in rejected goods.
400.2-711. (1) Where the seller fails to make delivery or repudiates or the buyer rightfully rejects or justifiably revokes acceptance then with respect to any goods involved, and with respect to the whole if the breach goes to the whole contract (section 400.2-612), the buyer may cancel and whether or not he has done so may in addition to recovering so much of the price as has been paid
(a) "cover" and have damages under section 400.2-712 as to all the goods affected whether or not they have been identified to the contract; or
(b) recover damages for nondelivery as provided in this article (section 400.2-713).
(2) Where the seller fails to deliver or repudiates the buyer may also
(a) if the goods have been identified recover them as provided in this article (section 400.2-502); or
(b) in a proper case obtain specific performance or replevy the goods as provided in this article (section 400.2-716).
(3) On rightful rejection or justifiable revocation of acceptance a buyer has a security interest in goods in his possession or control for any payments made on their price and any expenses reasonably incurred in their inspection, receipt, transportation, care and custody and may hold such goods and resell them in like manner as an aggrieved seller (section 400.2-706). In other words, the right for damages exists simply due to failure to make delivery or repudiation of the contract. |
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awesome thanks. . .I was in a different view at the time. . it only showed the pieces. . .thanks for the context can you show where it says they are not explicitly allowed to cancel the agreement? I see where they can't "wrongfully" do it. . .but still haven't seen where it says they can't do it I'll be looking through that version you linked.. it's much easier to read I am glad that we are making some progress on this threat. I will get back with some authorities on this point. (In the meanwhile, I would ask everyone on the threat to refrain from ad hominem attacks, as they do not assist us in our discussion.) |
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"wrongfully fails to deliver or repudiates" they did not "fail to deliver" or "wrongfully repudiate"
He was aware that the delivery date was not set in stone. . . .and he received his refund (so was not repudiated). so this section would be difficult to apply in my mind. Again not a lawyer, but I fail to see where this applicable.
so now take a look at this (as I previously posted):
400.2A-505. (1) On cancellation of the lease contract, all obligations that are still executory on both sides are discharged, but any right based on prior default or performance survives, and the cancelling party also retains any remedy for default of the whole lease contract or any unperformed balance.
These refers to lease, not to contract of sale. See the definitions here: http://www.moga.mo.gov/statutes/C400-499/40002A0103.HTM |
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Now on the point of rights of buyers under UCC: § 2-712. "Cover"; Buyer's Procurement of Substitute Goods.
(1) If the seller wrongfully fails to deliver or repudiates or the buyer rightfully rejects or justifiably revokes acceptance, the buyer may "cover" by making in good faith and without unreasonable delay any reasonable purchase of or contract to purchase goods in substitution for those due from the seller.
(2) The buyer may recover from the seller as damages the difference between the cost of cover and the contract price together with any incidental or consequential damages as hereinafter defined (Section 2-715), but less expenses saved in consequence of the seller's breach.
(3) Failure of the buyer to effect cover within this section does not bar him from any other remedy.
§ 2-713. Buyer's Damages for Non-delivery or Repudiation.
(1) Subject to Section 2-723, if the seller wrongfully fails to deliver or repudiates or the buyer rightfully rejects or justifiably revokes acceptance:
(a) the measure of damages in the case of wrongful failure to deliver by the seller or rightful rejection or justifiable revocation of acceptance by the buyer is the difference between the market price at the time for tender under the contract and the contract price together with any incidental or consequential damages under Section 2-715, but less expenses saved in consequence of the seller's breach; and
(b) the measure of damages for repudiation by the seller is the difference between the market price at the expiration of a commercially reasonable time after the buyer learned of the repudiation, but no later than the time stated in paragraph (a), and the contract price together with any incidental or consequential damages provided in this Article (Section 2--715), less expenses saved in consequence of the seller's breach.
(2) Market price is to be determined as of the place for tender or, in cases of rejection after arrival or revocation of acceptance, as of the place of arrival. |
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Holy crap k9quaint, I'll already went over the facts in UCC for missouri with you. I think you have a bad case of fish memory. drlukacs please go back and read before you run in all cowboy shooting your guns in the air yelling "Yeehaw! look at me I'm making points and stuff!"
In the state of Missouri, once you cancel the implied contract and refund the money. All responsibilities of both parties are terminated. The only recourse after that is to PROVE prior breach of contract (before the cancellation). Since the product wasn't delivered yet. The only possible thing he could bring up is the delivery time. With the link I previously gave showing the archived version of the website, It clearly stated that October was the "Currently scheduled" date. This clearly makes the buyer aware that the date is not definitive, unless they lack basic reading comprehension. The final obligation for the seller is to let them know if/when the specification of the product changes, which they did through the forums and with the confirmation of the buyers desire to continue the purchase (the recent dialog that pops up). Now, you can be frustrated and angry and I can understand your emotions. You can't arbitrarily say they did something illegal. I have seen no supporting evidence of your claims. I only see that you are angry and want to hurt them. I'm supportive of expressing your feelings and emotions. I'm not supportive of some distorted, trumped up, vengeful misinformation campaign. I'm supportive of exploring consumer rights, as this is something all buyers should be aware of when purchasing products. I'm not supportive of making crap up because you "feel" like that's what the law should be.
Edit: Just for the sake of consumer awareness, on a federal level, it is stated that by receiving a shipped product you are imply your acceptance of any changes to the specification. From what I understand this, Missouri further states that there must be some form of direct/explicit communication.
* this is not legal advice and should not be taken as such. If you feel you have an actual fact that disproves this is the law, by all means I'd love to explore it.
I am afraid that you misunderstand the law. You will find a copy of Article 2 of the UCC, dealing with contracts: http://www.law.cornell.edu/ucc/2/First, about difference between receipt and acceptance: § 2-512. Payment by Buyer Before Inspection.
(1) Where the contract requires payment before inspection non-conformity of the goods does not excuse the buyer from so making payment unless
(a) the non-conformity appears without inspection; or
(b) despite tender of the required documents the circumstances would justify injunction against honor under this Act (Section 5-109(b)).
(2) Payment pursuant to subsection (1) does not constitute an acceptance of goods or impair the buyer's right to inspect or any of his remedies.
§ 2-513. Buyer's Right to Inspection of Goods.
(1) Unless otherwise agreed and subject to subsection (3), where goods are tendered or delivered or identified to the contract for sale, the buyer has a right before payment or acceptance to inspect them at any reasonable place and time and in any reasonable manner. When the seller is required or authorized to send the goods to the buyer, the inspection may be after their arrival.
Look also at "§ 2-606. What Constitutes Acceptance of Goods." |
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[You can file in your local jurisdiction since Butterfly Labs sells online. Ask for damages of the difference between the market value of your forward contract to purchase BFL equipment and the amount you were refunded. Forward contracts cannot be unilaterally terminated.
There is more to be claimed, actually, because were not talking about an item whose price simply increased over time, but rather means of production -- a tool that can generate revenue. It more akin to failing to deliver a car to a taxi cab licensee. It prevents the buyer from earning. |
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ok guys i have taken the risk and flashed my bios.. it DOES WORK !
speed went up from 1080Mhz to 1170Mhz
hashspeed from 620Mhash/s to 700Mhash/s
Which bios did you use for flashing? |
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No .. you sign a sales contract which specifies the price and the contract which details the terms of the sale.. usually the contract is binding upon two conditions 1) the money being paid 2) the car being taken. Both of which are considered binding separately and indivisibly . i.e. if you take the car you are required to pay the money or if you take the money you are going to take the car. So .. if condition 1 is not met then condition 2 cannot be met either.. i.e. if you don't actually have the car in hand you can't be expected to hand over the money. To be even less blunt .. you can't demand possession of something just because you have the money in hand to pay for it. You seem to be confusing the creation (conclusion) of a contract with its performance. Contract is created by offer and acceptance, whether in writing or orally. Performance/delivery is an entirely different issue. A good starting point to understand contract law might be the Sales of Goods Act of any Canadian province, which mostly codifies the common law. Here is another great explanation of how contracts work (take from http://www.bbb.org/canada/legal-contracts-/) Legal - Contracts
The law of contracts is a vast subject area and is relevant to almost all areas of the law. A contract is an agreement between two or more parties which the courts may enforce. A binding contract must involve "offer and acceptance". They are legally binding once signed and cannot be cancelled unless there has been:
misrepresentation
fraud
duress
a clause that allows you to cancel
a mutual agreement to cancel
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Just to confirm: Do you have --scrypt somewhere in your command? How long do you let it run before you read the speed?
What happens if you try this one:
-I 13 --thread-concurrency 8192 --gpu-engine 1080 --gpu-memclock 1500 --auto-fan -w 256 --shaders 2048 -g 2 --lookup-gap 2
Yes, I let it run for 30-60 secs then it appears to top... Thanks for your help, I think I caught the problem which is the drivers !! Will try the new drivers tomorrow since I need to sleep.. And again thanks for helping ! I would leave it for 5 minutes if you want to be sure about the hash rate. |
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Try this:
--scrypt -I 13 --thread-concurrency 8192 --gpu-engine 1080 --gpu-memclock 1500 --auto-fan -v 1 -w 256 --shaders 2048 -g 2 --lookup-gap 2
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