I am been sued

Forums › Off topic › I am been sued - HELP!

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646 posts

Ultimate Geek

#840380 20-Jun-2013 15:48

BaaaaD: So i am stuck and have to sell the plate on to him.

Get some backbone man!

Let him make the first move.
Hes probably bluffing. (As has already been stated numerous times so far)

Also with my experience with the free law consultants is that they are quite passive and will only supply advice which points you in the easiest direction to settle the situation.
Actual lawyers (that cost money) are much better (again in my experience).

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Skillie

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Master Geek

#840552 20-Jun-2013 19:44

A valid contract has been formed. He needs to honour his bargain. This is why:

FUNDAMENTAL PRINCIPLES

50 To prove that a binding contract has been formed under New Zealand law, the parties must establish the following elements:

the parties intended to create legal relations when they entered into the agreement;
one party to the contract made an offer;
the other party or parties accepted that offer;
the promises contained in the contract were made for valuable consideration;and
the terms of the contract must be certain.

51 The common law does not usually impose limitations as to the mode of communication used to form contracts. Thus, oral contracts are as binding as written contracts at common law. Requirements that specific types of contract be in writing and signed under the hand of a party arise as a result of statutory overlay.20 While statutory reform has displaced or supplemented the common law in a number of areas (eg, Illegal Contracts Act 1970, Contractual Mistakes Act 1977, Contractual Remedies Act 1979, and Contracts (Privity) Act 1982), the fundamental principles of contract law remain constant.21

52 The principles applicable to the making of a contract by electronic means should be no different to the principles applicable to contracts formed orally or in writing on paper. Indeed, the decided cases appear to have accepted that proposition as self evident.22

Offer

65 The offer is the first legal step to contract formation. It has been described as an expression of willingness to contract made with the intention that it will become binding on the party making the offer (the offeror) when it is accepted by the person or persons to whom it is made (the offeree or offerees) (see Chitty on Contracts para 2-002).

Acceptance

68 Acceptance is the final and unqualified expression of assent by the offeree to the terms of the offer (Chitty on Contracts para 2-016). To be effective, acceptance must be communicated unequivocally to the offeror.29 Provided the requirements of consideration, intention to create legal relations, and certainty are also present, the contract is binding at common law at the time the offeror receives the acceptance. The offeror is therefore free to revoke the offer at any time prior to receiving acceptance.

Consideration

75 In common law jurisdictions (including New Zealand), a contract is not binding unless supported by consideration (although an exception exists where a contract is made by deed; see paras 100–105). The definition of “consideration” is something which has exercised the minds of contract lawyers, academics and judges alike (see Chitty on Contract chapter 3; Burrows et al 1992 chapter 4).
The notion of exchange - consideration must move from the promiseeTo find out if a promise is enforceable, one must look to see what the other party - the person to whom the promise was given - has done in return for it. If I promise to do something, has the other party done anything for it - promised to pay, actually paid, delivered something to me etc. In most cases, this is perfectly straightforward - I have promised to build the extension to your house and you have paid me a deposit and agreed to pay the balance in stages.

A contract of guarantee can be difficult to see in this way - think of a loan from Bob to Beverley - Geraldine is asked to guarantee the loan (Bob wants security as Beverley is a student) - the general rule is that consideration must move from the promisee, but the provision of Geraldine's guarantee constitutes good consideration for the enforceability of the loan.

Formality is one way of providing it - a deed under seal

Reliance can be another. It is a contentious matter as to the extent to which this has been adopted in our system. The modern case of Walton's Stores indicates that it may be becoming more important.

Consideration means that a promise made to you will not necessarily be enforceable in the courts unless you can establish that you have given something for it. Suppose I promise to deliver a ton of gravel to you next week - you get your shovel and barrow ready, and I don't turn up. I probably would not be liable to you in damages, because you haven't given anything in return, and merely getting your barrow ready would not be sufficient reliance to make it enforceable. However, if at the time of making the arrangement, you said that you would pay me $10 per ton for the gravel that would be sufficient consideration. A promise to pay is sufficient to count as giving something, even though the promise is not to be put into effect for some time yet.

Certainty

78 Certainty as to the terms of a contract is an element of formation. Simply put, an “agreement may be so vague or uncertain that it cannot give rise to a binding contract” (Chitty on Contract para 2-099). Thus, for example, a contract may be unenforceable if important terms are not settled at the time of offer and acceptance, but left for future discussion without any means of ensuring agreement. A contract which does not state the price may yet be sufficiently certain if goods are to be supplied at a reasonable price, because a court could make an objective finding as to what constitutes a reasonable price for the goods. But if the contract merely stated that the parties must agree on the price, then there would be no such certainty, and the contract would probably not be enforceable (Burrows et al 1992 53).

MichaelNZ

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Integrity Tech Solutions

#840569 20-Jun-2013 20:07

BaaaaD: All your advise and thoughts on the below matter will be greatly appreciated. Been very stressful for the last couple of nights.

Basically i own a number plate, i have been in correspondence with a potential buyer. We txted each other and i did txt back saying I am happy with the number plate for $xx plus one of his number plates. He txted back saying email me with your bank details and so i can send you a sale and purchase agreement. I gave him my email address. I txt back to him saying i am away and will be back in 2 weeks times, send the forms to my email address and i will fill it out.

Now i decided not tell it and wish to keep it in the family.

You may get away with it (because suing you may likely not be worth it) but you still sound like an unreliable person. (and that's putting it mildly). Based on the above it is clear in my mind you did the deal. You may want to weasel out at this point but don't come on here crying about it. If you have any decency you will make good with the other party. At least reimburse his costs if you absolutely must keep the plate.

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turnin

509 posts

Ultimate Geek
Inactive user

#840575 20-Jun-2013 20:13

sounds to me like you are just f****ing the guy around and that's why he's got upset and threatened you legally. make a decision and either go through with the deal or ring him up and tell him you aren't going through with it. Frankly I'd sell the plates because If you leave him hanging out to dry he's just going to get more upset with you as time goes on.

mattgreen

133 posts

Master Geek

#840629 20-Jun-2013 21:31

While the OP possibly has an out (with a good solicitor) due to the buyer bringing up the drafting of an S&P agreement it's pretty disingenuous and dishonourable to back out based on that.

Not sure that posting the buyer's emails and txts in a public forum is a great example of ethics either...

xpd

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#840952 21-Jun-2013 11:47

OP posted same thing in GPForums and got same sort of answers.... then edited all his posts on the thread so there was no info available - obviously trying to cover his tracks now, since all his comments have gone public and as someone mentioned earlier, these posts could be used against him by the buyer.

OP, get a lawyer or give up the plate for the cash.
EOS.

Gavin / xpd / FastRaccoon / Geek of Coastguard New Zealand

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nickrout

219 posts

Master Geek

#840975 21-Jun-2013 12:27

Skillie: A valid contract has been formed. He needs to honour his bargain. This is why:

I am not sure you are correct. You have a good ability to copy and paste from a law commission report, but I think the introduction of the requirement for a written contract with terms that have not been agreed puts paid to the argument that a contract has been formed.

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Batman

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#840982 21-Jun-2013 12:38

xpd: OP posted same thing in GPForums and got same sort of answers.... then edited all his posts on the thread so there was no info available - obviously trying to cover his tracks now, since all his comments have gone public and as someone mentioned earlier, these posts could be used against him by the buyer.

OP, get a lawyer or give up the plate for the cash.
EOS.

hmm ... the plot thickens ... this is much better than go girls

MikeSkyrme

272 posts

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#840990 21-Jun-2013 12:46

joker97:
xpd: OP posted same thing in GPForums and got same sort of answers.... then edited all his posts on the thread so there was no info available - obviously trying to cover his tracks now, since all his comments have gone public and as someone mentioned earlier, these posts could be used against him by the buyer.

OP, get a lawyer or give up the plate for the cash.
EOS.

hmm ... the plot thickens ... this is much better than go girls

But not as good as a go-go girl.... alledgedly...

Michael Skyrme - Instrumentation & Controls

DarthKermit

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#840995 21-Jun-2013 12:49

xpd: OP posted same thing in GPForums and got same sort of answers.... then edited all his posts on the thread so there was no info available - obviously trying to cover his tracks now, since all his comments have gone public and as someone mentioned earlier, these posts could be used against him by the buyer.

That's interesting that he's done that on another forum. Of course, he can't do that on the GZ boards.

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Bung

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#841004 21-Jun-2013 13:05

nickrout: but I think the introduction of the requirement for a written contract with terms that have not been agreed puts paid to the argument that a contract has been formed.

A written agreement was always on the table

" but to be clear, the binding Agreement for Sale and Purchase we reached via our detailed text message correspondence on 07 May states the final terms of that agreement.
Specifically, that the consideration for your plate xx is the sum of $xxx in cash, together with entitlement to the plate xx."

It doesn't appear that any new conditions were going to be introduced. I don't know whether this was a requirement for the personalised plate register as suggested or whether the buyer wanted proof that the deal was locked in before on-selling to another party.

nickrout

219 posts

Master Geek

#841142 21-Jun-2013 15:42

Bung:
nickrout: but I think the introduction of the requirement for a written contract with terms that have not been agreed puts paid to the argument that a contract has been formed.

A written agreement was always on the table

" but to be clear, the binding Agreement for Sale and Purchase we reached via our detailed text message correspondence on 07 May states the final terms of that agreement.
Specifically, that the consideration for your plate xx is the sum of $xxx in cash, together with entitlement to the plate xx."

It doesn't appear that any new conditions were going to be introduced. I don't know whether this was a requirement for the personalised plate register as suggested or whether the buyer wanted proof that the deal was locked in before on-selling to another party.

That might be his view, but if he tried to introduce new terms in the proposed written agreement then he is wrong that the agreement is concluded. But if all the written agreement does is record what had already been agreed then the original probably is binding.

ubergeeknz

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Vocus

#841146 21-Jun-2013 15:51

Actually, in NZ contract law, any new terms introduced after an agreement is made is known as "consideration" and is not legally binding. So to say that an agreement is invalid because a new agreement was being drawn up is simply not true. Anyway, this is pointless since we are not lawyers and if someone wants to weasel out of a contract and the other party is really going to lawyer up, they better get one too.

ajobbins

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#841155 21-Jun-2013 16:14

ubergeeknz: Actually, in NZ contract law, any new terms introduced after an agreement is made is known as "consideration" and is not legally binding. So to say that an agreement is invalid because a new agreement was being drawn up is simply not true. Anyway, this is pointless since we are not lawyers and if someone wants to weasel out of a contract and the other party is really going to lawyer up, they better get one too.

I think the assertion was more that the original SMS discussions might be part of a proposal where some of the terms of the sale were discussed but subject to finalisation by the S&P, and that it was generally understood that those details would be finalised by the S&P (therefore, the contract terms were still subject to agreement at that point), as opposed to the S&P attempting to amend an existing contact.

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c3rn

291 posts

Ultimate Geek

#841159 21-Jun-2013 16:23

So OP, have you been to a lawyer yet? Would be interested to know their advice/perspective.

Although, believe it or not, different lawyers have different opinions on a subject matter.

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