From: wmm8g@helga1.acc.Virginia.EDU (Peter Pan)
Subject: Re: Please help with FRAUD case!  Beware!
Organization: University of Virginia
Distribution: usa
Date: Wed, 11 Nov 1992 19:28:28 GMT


The timing of your post is ironic in that I just concluded a deal with someone
to buy their PB 100. He probably thinks I am a little bit paranoid for what I 
made him do, but it was necessary for my peace of mind. So, let me
give you/others a little advice (to the best of my limited legal knowledge)
about how to PREVENT such a problem from occuring.

The basic problem is that in shipping UPS C.O.D. (the standard delivery method)
UPS will not let you open/look at/plug in, etc.. the merchandise before you pay
them. So, effectively, you are turning over cash or a certified check (which 
is effectively cash) for a package. That's it! You have no contract with the
shipper to fall back upon if the package isn't what you agreed to buy, or if
it is in a condition which is less then you expected. If a problem exists (like
you agreed to buy a Mac II and you receive a MacPlus), you are at a 
disadvantage because the other side already has your money!

How to remedy that problem? Well, I'll offer two solutions (specific help on
your exact case will come a little later)

1. Pay the shipper by a personal check. That way if the package isn't what you
expected or if it is not in the condition advertised, you can put a hold on
the check until the two parties work out their differences. The downside? Some
people are reluctant to accept checks (fear of lack of funds), but you have
to make them understand that if you don't deliver the money as promised, they
will have a very easy "case" to recover against you -- especially since you
know they have at least one asset (the item you sold) worth something. In my
opinion, this is the best solution.

2. If the shipper will only accept a certified check or cash, I would STRONGLY
advise that you get something in writing from him before you accept the 
package stating: 1. what is being shipped  2. how much you are paying for it
3. how other costs (like shipping) are being settled  4. what condition the
items are in  5. and anything else you can think of that would be important to
you (like their promise that the item will work on a PowerBook 100). Make sure
they sign it and don't accept a package until you get this letter. It forms
the basis of your contract.
    Why? For sales over $500, you need written verification if you are selling
goods (see sect. 2-201 (1) of the U.C.C.). I doubt that email and newsnet 
posts can be held to be "writings," but that is debatable. Even for sales
less than $500, the existence of an oral contract is fine, but you need proof
that such a contract existed and the terms of the aranagement. The purpose of
contracts is to AVOID problems. 99.9% of all deals go through fine (okay, the
number is a little less in real life), but a contract exists to help you in
the event that something goes bad in your deal.

Now then, a little specific help, if possible...
[a quick legal disclaimer.. I am not a lawyer nor do I hold myself out to be
such. I am only offering my own opinion to give you some ideas and do not
encourage reliance on them. (can you tell I'm a law student?) In other words,
you cannot sue me for malpractice]

However.. (after all of that has been said),

The fact that he posted an ad on the net and then acted upon the ad as if it
were a contract SHOULD help you in holding him to the term and the express and
implied warranties he gave. (one warranty was that it was a "Mac Moniter")
However (and this is an important however), you need to prove what was actually
posted. You storing the article is no good because you can change it via 
your editor. I don't know much about the net, but if there is a central  
"clearinghouse" for posted articles (or an official archieve), you probably
need to get a printed, official copy of what was posted.

Given that, is there any way to show that any email you received was actually
sent by him? Again, is there an archieve at your school/instituition that
receives and stores the mail in some sort of official capacity? If so, get
a hold of what you sent him and what he sent you in an official format.

Lacking official format, try to get others to corroberate your story that
they too saw (and perhaps even stored?) that exact ad on the net. That is
a bigger hassle, but should work in the event that the official route doesn't
work.

Okay, given that information and your evidence that you paid UPS for the 
product (you'll need a receipt or UPS's proof of receipt), you should have
a complete case to show a breach of express warranty and possibly implied 
warranty that the item was not damaged. While you can go to a lawyer, you
make save yourself a bunch of $$ by just calling this person up, telling
him that you have enough evidence on him, and threaten to sue him unless
he pays you a fair settlement (like refunding your money). If you get no
satisfaction there, then you will probably have to turn to a lawyer.

If you are persistent enough, it sounds to me like you have a good case and
should (no gaurantees though) win. Unfortunately without taking the right
precautions at the start (although I don't fault you for it), your job is
a little more difficult, but feasible.

I wish you luck.  Remember folks CAVEAT EMPTOR (let the buyer beware)

-- 
Bill Merone  wmm8g@helga1.acc.virginia.edu
Were the Scooby Doo cartoons really a drugged-out fantasy? Think about it, they
drove around in a van out of Woodstock, and every time they got out, they saw
ghosts. Then, half of them would run in fear while the rest got the munchies.
Newsgroups: comp.sys.mac.hardware