Agreed purchase price, but seller sold to someone else!

Brilliant, thank you nointerestinhorses, I would be interested to hear what lea840, our resident expert, has to say now :)
 
Amaranta said:
Sorry but I fail to see what is intelligent about likening the OP to a fart in a cullender :confused:

You did not question but demanded answers - there is a difference!

Whilst I would not presume to question the accuracy of your statements, I do feel that your delivery style is somewhat lacking in empathy.
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I totally agree Amaranta, Lea 840's posts are aggressive and must be very upsetting for an already wronged person. OP does not have to answer any questions on here she is not on trial!!
 
lea840 said:
Of course we are only getting half a tale as there are two sides to every story and no one has heard the dealers side, there seems to be a few people who know the dealer on here (I'm not one of them... you suspicious minded people lol ) but somethings just not adding up here from the comments that people have made who actually know the dealer.

So we have only had half a tale...
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Does anybody really know who the dealer is or are they just saying this. For all we know it could be you. In fact you said it was you in an earlier post.
 
Nointerestinhorses: Your post echos what I said at posts 38 and 116. We disagree on a few things though. The point of acceptance is that it MUST be communicated for it to be valid. If only one party accepts the contract (as seems to be the case here) there is no meeting of minds. No meetings of minds is why a verbal contract can fail. There has to be a meeting of minds. Both parties have to agree, so that acceptance MUST be communicated. Silence can never be acceptance.
I agree with you that offer and acceptance can be found in the text messages but, when pushed, the OP has failed to clarify the issue over text messages... so it is not a foregone conclusion that the text messages do in fact affirm offer and acceptance. Its subject to evidence. I fail to see why it would be stupid for the OP to post publically.. its crucial to her case.
With regards to your consideration point, I agree with the promises bit but I think mere promises on their own is not enough. I am 80% sure you have to have something material to have "good" consideration.. even one penny would do it. I am not entirely sure if promises alone is enough...but I can find out in the morning! It might be time to dig out my old notes.... Maybe you could double check for us both too?
Finally, concerning ICLR, you readily conclude that there is a contract in this case. I dont know if you are aware or not but there was a refusal of a deposit by the seller. I think this is clear evidence of NO intention to create a legal relationship with the OP. Obviously, it is dependant on the reasons behind the seller to disclose but I agree in principle with your comment. I just dont think you can so readily assume ICLR when the seller refused a deposit?? Had she have taken the deposit, both Good consideration and ICLR would be established... but without that deposit, I am not sure ICLR is actually there?
One other thing to note.. only one party appears to have begun performance of the contract. The OP. The seller appears to have done nothing with regard to performance. BOTH parties have to begin performing the contract if you are to infer that there was an intention without evidence of acceptance (as is the case here), see Foley v Classique Coaches 1934. I remember that case well! :)
I dont agree that it is not a sale.... you call it a part exchange agreement but actually, it is a conditional sale upon sale. Seller buys buyers horse for (a) price provided that buyer buys new horse for (b) price.
I totally agree with your s.18 comments. I just dont think there was a contract though... so we may have to move on...

With regard to the folowing paragraph
"...and that it is dangerous for people to come onto a forum like this with incorrect knowledge holding themselves to have legal knowlege. I of course have to say that under the principle in Hedley Byrne v Heller I cannot except any liability for anybody who relies on this information (I would have thought anyone who holds themselves out to have any legal knowledge would make a similar disclaimer) but this is the law as it stands."
You assume I am not legally trained or qualified by your wording. I did the Qualifying Law Degree (with honours) and I also did the Post Graduate Diploma in Legal Practice. I finished my training contract some years ago and although I do not specialise in tort anymore, I am qualified to know what I am talking about. For that reason, I did not provide the usual disclaimer because I can in fact carry this opinion out.
If the OP had got back to me with the answers, of which I am sure you are aware, that are of paramount importance in this case, I am confident I could get a judgement in favour of the OP and maybe get that horse back for her... maybe not, depends on the new buyer... but I am qualified and I do know what I am talking about. I thought you would have spotted that... but then, I have to now think that you are yet to see my original posts at message 38 and 116.

On a lighter note, its GREAT That someone with actual knowledge has come on here now... one of us will be wrong because the ecidence available is not conclusive but whoever is right/wrong.. at least we get the legal answer the OP was actually looking for.

Maybe the OP might now post the answers to the issues we both agree are open for discussion... if not for the simple reason that I dont agree with you on them issues? :)
 
So if the OP is legally the owner of the horse as there was a contract betwen the OP and the dealer does that mean that the dealer owns the horse that she was prepared to take in part ex?

If there is a legal contract between a buyer and a seller once all the correct formalities have been observed what happens if the horse becomes seriously ill/injured/dies before money changes hands and is actually with the new owner?
 
Ha ha, I am loving the notion that I was disappearing like that infamous fart in the cullinder.... I was just writing my reply... you guys are too quick to jump on me!

Even if you lot dont agree with my delivery technique, I am getting her the LEGAL answer she originally wanted way back at post 1. If she'd have asked for empathy, I'd have put my arms round her, give her a big cuddle and said words to the effect of "there there...". I didnt... I did what she asked... gave her the legal answer that she was seeking. Surely thats worth something? :)
 
jodie3 said:
So if the OP is legally the owner of the horse as there was a contract betwen the OP and the dealer does that mean that the dealer owns the horse that she was prepared to take in part ex?

If there is a legal contract between a buyer and a seller once all the correct formalities have been observed what happens if the horse becomes seriously ill/injured/dies before money changes hands and is actually with the new owner?
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That is a difficult one I must say.
 
jodie3 said:
So if the OP is legally the owner of the horse as there was a contract betwen the OP and the dealer does that mean that the dealer owns the horse that she was prepared to take in part ex?

If there is a legal contract between a buyer and a seller once all the correct formalities have been observed what happens if the horse becomes seriously ill/injured/dies before money changes hands and is actually with the new owner?
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Jodie, this is whats known as a "Frustrating Act" and the contract legally comes to an end at the horses death/serious injury. If the horse is paid for in full, you do not need to give a refund... although if you are a business, you would just for the avoidance of bad PR.... if its a deposit only, then you would lose your deposit. Its what insurance companies rely on alllll the time when it comes to bad weather and car damage...

True frustration legally ends the contract and all losses lay where they fall..... if you have paid for it, legally, that money is lost.... harsh but true..
 
onemoretime said:
That is a difficult one I must say.
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Its a very good question. Technically the horse in part-exchange would belong to the dealer be she would have what is called a lien. This means that despite not being the legal owner she can keep her horse until the other parties delivers the horse she has been promised.

With regards to the horse becoming ill their is a concept in commercial law known as risk. Whoever has the risk at any time will have to bare the cost if the goods (ie the horse) is damaged at nobodies fault. The normal position is that the risk would travel with ownership and therefore the OP would bare the cost however a recent EU consumer directive states that if a person is acting as a consumer they only acquire the risk on delivery. Therefore if something was to happen to the horse the OP would have a right either to reject the horse and rescind the entire contract or to take the horse and accept a price reduction in return.
 
hch4971 said:
Sorry.............I couldn't resist!:rolleyes:
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Its okay HCH, I wouldnt expect anything less... lets face it, I am pretty much the only one vocal enough throughout this post to deserve a bit of cannonfodder coming back my way. It's expected and your humour appreciated! :)

If nothing else, maybe all those that inferred that I was being bitchy can now accept that my intentions were to get to the bottom of it... sometimes the search of the truth can hurt but if we get to the bottom of it, we will find her the answer to her original post... which was whether or not she could hold her to the sale.....

I didnt mean to offend anyone by my interrogation... but it is what a solicitor would do when vetting their client...they make sure their client is arguing from a strong standing before accepting their version of events... because ultimately... a jusge may well do the same if it went to trial! Are we all friends again now? :)
 
nointerestinhorses said:
With regards to the horse becoming ill their is a concept in commercial law known as risk. Whoever has the risk at any time will have to bare the cost if the goods (ie the horse) is damaged at nobodies fault.
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We are not talking about commercial law though.. this is consumer/contract law. Still looking forward to your comments nointerest??
 
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Gotta say.. I am wondering where nointerestinhorses has gone... maybe they have dispersed like.. err.. cant think of a comparative right now... :)
 
Thank you, very interesting replies.

I suppose buying a horse is like most things, all very simple and straightforward until something goes wrong (or is perceived to have gone wrong) and then either party could find themselves in an expensive legal dispute.
 
I didnt mean to offend anyone by my interrogation... but it is what a solicitor would do when vetting their client...they make sure their client is arguing from a strong standing before accepting their version of events... because ultimately... a jusge may well do the same if it went to trial! Are we all friends again now? :)
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Of course we are :):):):):):)
 
Thanks for posting what I was dying to and couldn't be bothered writing up, nointerestinhorses. The hearsay legal opinions flying around here are scary sometimes.

Lea, consideration is 100% definitely not required to change hands for the contract to be valid; you just need to have each promised something which would be valid consideration. E.g. when you buy a sofa and pay nothing for the first year, that sofa becomes yours. The shop can't take the sofa back half way through the first year just because you haven't paid anything for it (however, they might have a claim if you didn't pay them the money when it became due (i.e. at the end of the first year), as then you are in breach of the contract).

On the hypothetical topic of transfer of ownership at the date of contract and the horse dying before delivery, I think it would depend on the exact circumstances of the deal. Transfer of ownership in property is usually assumed to take place at the date of contract unless otherwise stated. However, with horses due to the ongoing care requirements from the posessor (seller), it may be possible to rebut this assumption, in which case the valid (enforceable) contract still exists up to the point the horse dies, at which point the contract is frustrated and neither party can make a claim for fulfilment or damages. I am not aware of any precedent on the issue.
You would be more likely to see this situation come in to play if e.g. a piece of Art held in a gallery was sold by the owner to a purchaser. If the art is damaged in an earthquake, it is very possible that this will be treated as the buyer's loss, and they would still have to pay the purchaser the agreed price even though they never managed to take delivery of the art.

On possible outcomes of the OP's case if it were pursued:
- the seller cannot create a valid contract with the second purchaser as they no longer have the right to sell the horse (as there is already a contract in place to sell to OP); therefore if the seller still has the horse in their possession, the OP can turn up and take delivery (and if this is still an option I would STRONGLY advise that you take it).
- if the horse has been delivered to the second purchaser and they were aware that in doing so the dealer was breaking their agreement with OP, OP is still entitled to the horse on payment of the agreed fee/part exchange horse to the dealer; the dealer would have to refund the second purchaser. I imagine it would be very hard to prove the second purchaser was aware of the existing contract, so it is unlikely this will help you out.
- if the second purchaser did not know about the first agreement and has already got the horse, they are entitled to keep it. OP is then entitled to damages in lieu of specific performance. OP would also be entitled to any excess price paid by the second purchaser over that agreed to by the OP (e.g. if your deal was worth £300, and the second purchaser paid £500, you are owed the extra £200 by the dealer). This is usually a nice remedy in gazumping, but you have the added complication of what the partex value of your horse would have been, so I doubt in your situation you could get anything this way in court. Also, if the new buyer only paid the same or less than you agreed, you would not get anything this way.

For those who are curious about what would happen if it was the other way round, and the dealer wanted to enforce a contract with the buyer pulling out:
the rules are the same; the contract is valid in law. However, as there are emotional attachments and welfare considerations involved in the purchase of a horse, there is a good chance that a court would award damages rather than specific performance. Usually the provable damages to a seller of the sale falling through are pretty low (perhaps a week or two's livery (and then if they carry on riding the horse you could argue that the extra livery is not a damage) and a readvertising fee if adverts were taken down). Additionally, from a practical perspective, how many people would really be keen to go to court to try to force someone who didn't want it to take possession of their horse... It is therefore pretty rare for it to be worth the seller making claims against the buyer.

Claims on the other side are more desirable as a buyer will often incurr travel expenses, transport costs, vetting costs etc. and perhaps tack costs and deposits on stabling etc., and therefore are more commonly pursued.
 
gnubee said:
The hearsay legal opinions flying around here are scary sometimes.

Lea, consideration is 100% definitely not required to change hands for the contract to be valid; you just need to have each promised something which would be valid consideration.
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I hope you are not referring to me by that statement gnubee? With regard to your second point... I agree about promises being consideration but off the top of my head, there is a difference between consideration and "good" consideration. I cannot get the answer right now as all my material is in work but I can find that bit out for certain tomorrow.

There is only 2 real outcomes here.. if the OP is able to hold her to the sale (as per the question in post 1), the OP would have to be successful in establishing the breach of contract. If she is, the usual remedy would be damages (commonly referred to as compensation although technically inaccurate) but in this case, she wants the actual horse. Nointerestinhorses is right when (s)he says that getting the horse back from the new buyer would totally depend on whether or not the new buyer was aware of this fall out. Its likely that the new buyer would have no idea (but we would need a statement from the new buyer) but its not beyond the realms of the imagination to assume the new buyer would have no idea of this fall out.. why would she? Not like the seller is going to tell her anything more than she has had a few people showing an interest.. or that she has been messed about. That would leave just damages.... of which the court would determin just how much they think it should be.

The second outcome here is that she fails to establish any contract and has to pay the costs of her own solicitor, plus the reasonable costs of the sellers solicitor in defending the action and there is also a risk of costs on an indemnity basis (at a premium) if there has been offers known as Part 36 offers made by the seller to settle the action amicably.

True, its all supposition right now... but it is a real risk once you decide to 'go legal'. It is financially risky unless you have an insurance policy to cover you for legal expenses.

Its getting late and I am up early in the morning.. I have seen your comment nointerest... I'll wait up a bit longer but if you end up posting after I have retired to the bedroom, please understand I would NOT be dispersing... I would just merely be too tired to wait up any longer! :)
 
Sorry for taking to reply, i wrote it all and then my computer logged me out so it went away :(

I have just read my first post and nearly killed myself so I can't bare to think how you guys must be feeling, with that in mind I'm going to write this one in bullet points :D

1) For a valid contract one party must offer and the other accept. If the OP has agreed to terms set by the dealer then the dealer does not need to communicate her acceptance of the OPs acceptance, there is already a valid contract.

2) Her case, if she chose to pursue it would be decided in court not on a forum, so I don't think it would be wise for her to display her evidence so publicly.

3) Consideration does not have to be money and does not have to at the time of contract. Examples of non-money consideration include the horse in this case. There are contracts for non-disclosure and shareholders agreements where the foregoing of a right is valuable consideration and if you had to wait for the consideration to be paid to get a valid contract where goods are delivered and paid for later when these contracts exist all the time.

4) With regards ICLR I admit that no deposit could be evidence against but there is stronger evidence for it when they agreed to spend money on transport costs. As the presumption is in favour of ICLR in this case I believe it would be found.

5) The contract is such that it requires one party to act before the other, by your logic any contract where this is the case could be held void.

6) The SGA only covers contracts where the only consideration is the price, in this case it is probably more akin to a barter. Fortunately the reform in 1982 has made the difference largely obsolete (except with regard to rejection of goods).

7) Why would you do a qualifying law degree and a GDL?

8) If you are qualified then it would be even more advised to put the disclaimer down. Otherwise it could argue that it is professional malpractice and you shouldn't be giving advice outside of work.

9) I've seen all your posts

10) With regards the other post, contracts for the transfer of property fall within the Sale of Goods Act or the Supply of Goods and Services Act. If these acts concern this case then the rules on risk apply. The fact that it is a consumer rather than a business transaction means that the EU directive would apply.
 
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