A manager at best buy agrees to hold a TV for me until the end of the day, with my explicit promise I will return and purchase this TV, as well as some other items.
The TV is unique, because it is an open box item, and is being sold at quite a discount. I return, and the TV has been sold. There are a lot of “sorrys” and an offer for a discounted protection plan on a new set. :rolleyes:
I’m not sure if sorry cuts it, however. Did we have a binding contract? On one hand, both parties have to provide consideration. I didn’t provide any, i.e., I didn’t pay $20 for an option on the TV. On the other, is my promise to return and buy the TV and other goods consideration?
I don’t really plan to take this anywhere as in T_SQUARE v. Best Buy, but I might try to negotiate a discount on a new TV. Do I have a leg to stand on?
By the way, several employees of the store agree that they promised to hold it; the facts are not in dispute.
I don’t think your legal recourse is quite limited but in the name of customer service you should be able to negotiate a fair price on a different item.
For a contract: 1. Offer 2. Acceptance 3. Consideration (mutual) Sounds like we have probable 1 and 2. The issue will be 3.
Consideration is (loosely put) either a benefit received by a party, or a forbearance from action, some loss or detriment, some undertaking on the part of the other party. In the absence of consideration on the part of both parties, there is (generally speaking) no contract. When looking at a possibile contract, it is important to establish exactly what the consideration on the part of each party is/was. In a simple sale, one party pays money they aren’t otherwise obligated to pay, while the other party gives over an item or items, of which they aren’t legally obligated to release possession/title.
The legal eagles with more experience in contract law will be along eventually to get into the nuances of your situation. But the main problem will be determining whether you there was any consideration on your part for the proposed contract. Remember, the “contract,” if one existed, involved the retention of the TV for sale to you later. From the part of Best Buy, the consideration is simple: we don’t sell a TV we are otherwise legally able to sell until you get back. But finding consideration on your part will be difficult. It often cannot be a promise to do something in the future, and here that’s even more problematic because what you are promising to do in the future is to purchase a TV, which is also the consideration for the actual sale of the TV.
Now had you put down a deposit, then that would be consideration. Had they held onto something of yours, like your credit card, or a check for the sum involved while you moved money into the account, etc., that would be consideration from your side. In your case, more difficult to establish consideration. And think of it this way: had you not returned to purchase the TV (you decided against it, or you couldn’t get the money together), would you have considered Best Buy to have an action against you for breach of contract?
Others will flesh this out with more detail; some may even be able to offer a suggestion as to how it could be considered a valid contract. Let the fun begin.
Was the value of the item over $500? If so, a contract for the sale of that item would have to be in writing to be enforceable, in all states except Louisiana.
Aside from that, unless you gave some consideration in exchange for his promise (in these circumstances normally some sum of money), his promise was a mere gratuity, a gift promise, not a contract that is enforceable.
The contract in question is not a sale contract, Hello Again. It is a question of whether there was a contract to reserve the item for his later purchase. That would not be covered under the portion of the commercial code you are discussing.
I agree with **DSYoungEsq **. But I wonder if the OP’s forbearance from purchase of another TV for the given time frame and return to the vicinity of the store could count as consideration? Forbearance of a legal right can count as consideration, and it doesn’t have to benefit the other party. It just has to have induced the promise (as it seems to have done here).
I assume you noted that the TV was a “unique item” just by way of showing why you’d be suing in the first place (the difference in price). But it is worth adding that a TV on sale is not a “unique item” in terms of the legal category of unique items. It doesn’t make a difference to the analysis of the contract.
I would also add to my above response that if you were able to show that your decision not to purchase another TV (perhaps at a Circuit City sale) ended up costing you money, you could also sue under a theory of promissory estoppel.
Or that might all be lies. Because IANAL…Yet!
ETA: One last note. If you had gotten them to sign something saying they were going to hold the TV, the offer would not revocable, for lack of consideration, during the time stated.
Part of the problem with establishing a contract here is that it really isn’t clear just what the OP was promising. For example, did the OP really promise not to buy anything else? Did the OP really promise to buy the television in question? Or was it simply the case that the burden was all upon the store, and the OP was free to do what he/she wanted to do? I tend to suspect the last is the most accurate, even if in his/her mind the OP intended to return to purchase.
First, promises to do something in the future are the sine qua non of bilateral contracts, which are nothing more than exchanges of promises.
Second, the consideration for the actual sale is the tender of money for the product–not the promise to buy it in the future. A subtle, but important distinction.
That said, I agree, the issue here is consideration.
Let’s examine that. What if you had not returned to Best Buy. Could Best Buy sue you for the purchase price?
As others have noted:
Depending on the price, lack of a written agreement might be a problem.
IANAL, but I partially agree with Gfactor. The agreement could be viewed as a complete sales contract. Method and time of payment are common contract terms – in this case, it would be “$X cash, by the end of the business day”. The sale would be complete at the time of the agreement.
If viewed this way, the issue is not consideration, but whether or not there was acceptance/agreement to terms (or a “meeting of the minds”) on the part of the clerk - i.e., if you asked him what had just occured, would he say “I just sold this TV to T_SQUARE”, or “I wonder if T_SQUARE is coming back”.
A few weeks ago I was in a Best Buy and a customer went to the sales person and asked for a discount, when she asked why, he told her he was buying a camera, a printer and something else…she gave him 10% off. So I guess they have a little bit of leeway on the price. Plus, just last week I was buying a fridge and the saleperson (after giving me $300 off to match a price) offered me a $100 gift card if I bought it that night. Apperently they do this on slow nights to help boost sales.
As for the OP, to play devils advocate, if it was the other way around. That is, if it was the same, but you changed your mind and decided not to buy it, would they be able to force you to, probably not.
Thanks for that.
Since it’s an objective test, though, it seems more likely to me that the agreement could be characterized as a sales contract, where the time of payment and delivery was “by the end of the day”. Or at least, a better tactic than saying it was an agreement to hold the item for purchase later.
In fact, I’ll bet that is just what was being contemplated here: the OP was going to go out to other stores to see if he could find a better deal on a TV. Had he found one, he would have just never bothered to return to Best Buy to get that TV he had ‘held’.
People do this to retail stores all the time. So most of them will flat-out tell you that they can’t hold it for you unless you put some money down or sign a lay-away agreement. The fact that the OP did neither of these things makes me cynically question just how committed he was to that ‘held’ sale.
Ugh, Gfactor, stop picking my short and less-than-comprehensive answers apart for their short, less-than-comprehensive quality.
I did not say that the promise to buy was the consideration in the later sale, I said the buying (payment of money) was the consideration, and you couldn’t use the fact of buying as consideration in both purported contracts. Shame on you for not understanding that through my inartfully phrased (hows that for a good euphamism?) statement.
The point I was trying to make, poorly, obviously, is that the OP cannot simply say in response to the issue of consideration, “I told them I’d come back and buy the TV.” Many in the position of the OP would think this would be “consideration” (and it could be if done right), but what they are really saying is, “If you hold this over for me till later, and I come back, I’ll buy it from you,” which, of course, is really promising nothing to BestBuy at all.
Obviously, if the OP says, “I offer to pay to you X dollars at 10 PM tonight, if you refrain from selling that TV until then,” and BestBuy says, “It’s a deal. Come with the cash at 10 PM and the TV is yours,” then we are much closer to something enforceable; certainly both sides would have some reasonable expectation of performance by the other. I suppose I should have been more rigorous in my explanation, but I was in a hurry and preferred to leave the details to others; for which I have been justly chastized. :o
Yes. This is the key issue, IMO. Is it a real promise or is it illusory consideration? http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=10th&navby=docket&no=982233 If the promise is, “I’ll come back and buy it, if I want to” or “I’ll come back and buy it, unless I change my mind,” the promissor isn’t really bound to do anything. In that case, courts say the consideration is illusory. “A promise which is conditioned upon the whim of the promisor is not consideration.” http://www.west.net/~smith/consider.htm
I actually had to head to my bank to get money, so yeah, I was commited to the purchase in my mind, but I can see Best Buy not really seeing it the same way. I offered to put money down, but they claimed they weren’t set up to do that with their system.
I’d forgoten about the UCC, and I guess it would apply as the TV was more than $500 and I wasn’t in Louisiana.
This is a good point - out of curiosity T_SQUARE, if the TV was such a great deal, why did you request the hold in the first place rather than buy it then and there?
