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Old 04-15-2011, 07:12 AM   #160
Disco Stu
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Joined: Oct 2006
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Quote:
Originally Posted by Mr. Cob View Post
Howdy CamoGreg,

The problem here is not the product, what its claimed to do or who is selling it, the problem is the seller reneging on a deal after it was made. If the emails and PM's exchanged weren't enough to convince any reasonable person that I willfully accepted the conditions of the sale, I would not have made my first post as regards this situation. I do not have any objection to the emails and PM's being posted.
howdy, Mr. Cob,

let me try to use what I've learned in law school to explain why what I've highlighted in red above is so important. It's not just limited to your satisfaction with the $72 part and his liability towards you. Most people here would reasonably believe that you agreed to the terms. Poolside may even be a reasonable person and maybe he personally believes you agreed to the terms.

Let's say you install the gizzmo and go for a ride. you go flying around a corner and for some reason the throttle sticks wide open, you loose control and you and your bike go sliding across the road. Coming the other way is a bus from St. Olaf's School for the Gifted Blind. Trying to avoid running over you, the bus driver swerves, hits a tree and the bus bursts into flames, killing the bus driver, 7 nuns and 16 blind kids who just came back from willing scholarships to Yale. You get sued by the bus company, the bus driver's wife, the catholic church and the parents of each of the 16 children. During deposition, the lawyer asks you what happens and you say "I installed a gizmo I bought from Poolside, and the throttle stuck open and I lost control." So the plaintiff's lawyer adds Poolside's company to the lawsuit, thinking that maybe the part was defective and that Poolside still assumed liability for the defective part.

Now, IF you'd said 'I Agree to the Terms of the Sale', Poolside's lawyer could submit that info to the court and their company would be removed from the suit. Cost to Poolside's company: $300 for the lawyer to write the letter. But, since you didn't say those exact words, there IS a question as to whether a reasonable person would think you'd agreed to all of the terms. The judge isn't just going to say "Heck, I'm a reasonable person, and I think Mr. Cob agreed, so I'll dismiss Poolside's company from the suit." He's going to round up 12 reasonable people, stick them in a room and let them figure out what you agreed to.

So, now Poolside has to pay his lawyer to sit there through jury selection and the trial against you before even getting to the part where the plaintiff tries to prove that you didn't accept the terms of the agreement and therefore Poolside's company may still be liable. Even if the lawyer failed to prove anything and the suit is dismissed (Congrats, by the way), Poolside still had to pay his lawyer $30,000 to sit through the trial, because he may have been on the hook for all of those deaths IF the jury had found out that you didn't accept the terms.

I know that's a crazy scenario, but that's why those terms are so important. Assuming Poolside is making $20 profit on each gizmo, he's apparently made the decision that it's worth the risk of selling the product because he's limited his possible exposure to $300 in atty fees because all the attorney has to do is pull out the piece of paper that says "I accept the terms of the sale" with your signature on it. But since you didn't say THOSE EXACT WORDS, he may now be exposed for $30,000 in legal fees.

It's not just about whether Poolside would take your words as acceptance, it's whether he can prove clearly and convincingly, without any doubt, that you accepted the terms, or if he has to incur the expenses of having reasonable people determine whether you accepted the terms.

Would you willingly take on the (very slight) risk of an additional $30,000 in exposure to sell one part to one person, when you're not making any additional profit?
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