In addition to the elements of a contract:
- a party must have capacity to contract;
- the purpose of the contract must be lawful;
- the form of the contract must be legal;
- the parties must intend to create a legal relationship; and
- the parties must consent.
You know your legal opinions aren't worth anything, right?
Here are the facts:
-A BitCoin address allegedly owned by Ben Davis received 512 BitCoins in 1 BTC increments from an address allegedly owned by Intersango.
-Something or someone with access to the BitCoin address transferred these BitCoins to a different address.
-Intersango allegedly sent three emails to BenDavis requesting that 511 BitCoins be returned then threatening legal action when they were rebuffed.
-A conversation allegedly took place between Intersango and BenDavis on a chat channel.
-The same BenDavis allegedly logged onto bitcointalk.org and made statements.
Here's your opinion, which is worth nothing in a court of law unless you're a practicing lawyer:
"Intersango didn't intend to create a legal relationship and didn't consent to the release of his BTC."
Are you an expert in the legal interpretation and application of law? i.e. are you a practicing lawyer? Can you quote me the legal definition of "intent to create a legal relationship" and "consent" on the spot? Yes? Then great, go ahead and represent Intersango before a judge and earn a fee, then your legal opinions will be "worth something". No? Then take your armchair lawyering somewhere else, the law is not cut and dry as your statements suggest it is.
Now, for my legal opinion, which you can all take with a grain of salt:
In reality, simply making up an ex post facto excuse like "whoops, I accidentally sent you a cheque for $500 in the mail last year because it fell into the envelope I sent you when I wasn't looking, you owe me $500 plus interest" is about as trustworthy as "nuh uh, you told me in a private, unrecorded conversation with no witnesses you were giving it to me for free so I spent it". Lack of "intent" and "consent" must be proven to have existed ex ante. I don't even recall what reason Ben and Phantom were interacting for, but if it was a verbal agreement you can't claim that the excess 511 BTC wasn't verbally agreed on (you can't really claim that it was, either, but that's irrelevant; neither party has a case, in my mind, to either show an agreement or demonstrate that they acted as though there was an agreement). You need to demonstrate the so called 'bug' was, in fact, 'real'. The fact of the matter is, Phantom allegedly sent 511 to Ben BTC and then cried foul; if there was an actual signed agreement of what or at least an ex ante record of something, somewhere that shows that Phantom meant to send 1 instead of 512, then sure.
With an ATM, it's simple: you ask to withdraw $50, it stores this fact on a database and deducts $50 from your account, then spits out $500, that's clear cut and dry what you both consented for was $50 and what you accidentally received was $500. They can probably point out the programming error and show that somewhere it converted the $50 into $500 internally even though it clearly doesn't do this with any other amount.
In actual fact, the "intention" to "create a legal relationship" occurs when two parties make any sort of attempt to agree to any sort of exchange; the legal relationship may not be finalized but the intent to create it is there. The real Ben can claim that he purchased something for 512 BTC via a verbal agreement and he had no contact from Intersango.
The "consent" clause is muddier. If you can show that there was 1. an actual bug, and then 2. that Ben should have known it was a bug, then you can proceed to 1. claim lack of consent as the reason contract was made and that Ben owes the BTC back, and then 2. claim that there's a case for a criminal prosecution of Ben. If they've already fixed the bug and kept no copies... I'm not liking their case. If they have no supporting documentation that shows what the agreement was, if any, then I'm not liking their chances of getting Ben prosecuted, either.
And they've got to prove that the people claiming who they are on the forums and in the chats are who they claim they are. Why?
It's pretty easy for me to make an account called "Joe Schmoe" then use this account to "admit" "Joe Schmoe" "stole" money from me. Then try to get the real Joe Schmoe prosecuted.
Out of curiosity, do we know for absolute certain that the Intersango guy didn't simply create multiple user names on chat, an account on Intersango, and send the coins to himself and then "argue" with himself and try to convince us all that he was really the victim and not the profiteer?
$4,000+ is a fair sum of cash, and with all the scams going on nowadays...
Just making sure and wondering if anyone considered it.