Rick2you2

I guess you got your "Irish" up.

I just ordered it. Does it come with any hard material in the inside, or do you pack something like a pad or cor-foam?

Thanks.

These are all way smarter than what I’ve been doing. I just buy a sleeve at the show, or sometimes, carry a plastic bag. Then, I will later go to my car to drop off a purchase. I have been hesitant to buy something unless it can be folded up into a really small package because most of my purchases, except commissions, are by mail and I don’t want to carry anything of size.

Over the years, the Phillippines have really produced some terrific artists, like from Rudy Nebres and Nestor Rodando.

As I wrote once before, I was referring to situations where someone was offering an item for sale, the flipper then listed it themselves elsewhere, buys the piece and then sold it without taking possession. That is not an activity which this hobby likes, nor would any hobby, I expect, and I consider a bad business practice. But, I don’t consider it a violation of law. Stop trying to change what I said to turn it into something different.

So, in your view, if the government regulated sellers of art who don't own it, that would be okay? I guess that means a lot of art dealers who sell on consignment should be hung out to dry. The real problem here is no one likes to "leave money on the table". That is, the original seller is upset someone made a profit on the flipper's arbitrage of his art instead of it going to the original seller. No one made the original seller's decision for him, you know. And besides, arbitrage is one reason the price of comic art has sometimes gotten so high--it provides price protection to the market by keeping the prices up. In a broader context, owners who aren't sellers but treat their art as an investment make out well by that approach.

What about consignors to dealers? Or in a different field, Futures markets, with short selling? Or a stock market’s put? Or selling stock options? Those are just formal or institutionalized ways of selling what you don’t own. In each case, the seller has a right of access to a thing, and sells it without ownership. But “the owner” side would consider them to be a form of lying. I think they are just forms of risk allocation. In the case of the flipper, he is assuming he will get the art at less than he will pay for it and make a profit. Let me add that in intellectual property law, the Supreme Court has said you can’t impose limitations on sale of remote buyers because it is a restraint of trade. So a seller cannot condition the sale of art on it being kept by the buyer. That, incidentally, is why software is leased instead of sold. You remain the owner of the leased product and future use can be limited.

These facts are not the ones I had intended by my comments. I had assumed the art was listed for sale by someone (eg, access). If not, and if the “flipper” had no private knowledge they were actually going to be for sale, then as to his potential buyers who sent him an “acceptance”, that would be a breach of contract if he did not somehow get them. If he actually took deposits, and was not able to get the art, it might be fraud if a court decided the facts showed no true intent to get the art (proof of intent is usually by facts going outside what someone claims they intended).

I didn’t use the phrase “implied right of access”, but if you want one: hire a builder to install a pump in your basement. You will likely have given him an implied right of access to your house at some time because the written instrument is unlikely to give him express access or times to come in and install it. There are lots of implied duties in agreements, and common sense terms in offers are regularly read into them. The only time damages are not needed to be proven is if you seek injunctive relief or some other extraordinary remedy, like a prejudgment writ of attachment. Getting one can require proof of fraudulent conduct and the substantial likelihood of loss in the future. Ever see Judge Napolitano on Fox News? When he was a practicing judge, he gave me one. Not easy to get. I like the phrase “bad business practice”, thank you. For example, a dealer’s disorganized website which turns off potential buyers is a bad business practice. Not illegal—just not wise. Failing to promptly respond to customer inquiries—same deal. It can cover a lot of sins. Backing out of an actual deal is a breach of contract. That’s more than just a bad business practice. Let me add that dealers who sell things for others ought to post something to the effect that providing ordered art is dependent upon it being furnished by the artist to them. Conditions are not ordinarily implied in contracts, without a good reason (like access to a site, above), so the promise of providing the art could be interpreted as absolute and unconditional. The dealer could get stuck unfairly. This industry would be well served by mandatory arbitration for all claims under a certain dolllar amount. It would help cut down on questionable behavior at a cheaper price than court.

For anyone who cares, this statement is wrong (among others). Here is something I grabbed off the internet from https://www.mitchell-attorneys.com/common-law-fraud: "In the United States, common law generally identifies nine elements needed to establish fraud: (1) a representation of fact; (2) its falsity; (3) its materiality; (4) the representer’s knowledge of its falsity or ignorance of its truth; (5) the representer’s intent that it should be acted upon by the person in the manner reasonably contemplated; (6) the injured party’s ignorance of its falsity; (7) the injured party’s reliance on its truth; (8) the injured party’s right to rely thereon; and (9) the injured party’s consequent and proximate injury. See, e.g., Strategic Diversity, Inc. v. Alchemix Corp., 666 F.3d 1197, 1210 n.3, 2012 U.S. App. LEXIS 1175, at *25 n.3 (9th Cir. 2012) (quoting Staheli v. Kauffman, 122 Ariz. 380, 383, 595 P.2d 172, 175 (1979)); Rice v. McAlister, 268 Ore. 125, 128, 519 P.2d 1263, 1265 (1975); Heitman v. Brown Grp., Inc., 638 S.W.2d 316, 319, 1982 Mo. App. LEXIS 3159, at *4 (Mo. Ct. App. 1982); Prince v. Bear River Mut. Ins. Co., 2002 UT 68, ¶ 41, 56 P.3d 524, 536-37 (Utah 2002)." *** The ninth and final common law fraud element is proof of the injured party’s consequent and proximate injury. “It is of the very essence of an action of fraud and deceit that the same shall be accompanied by damage, and neither damnum absque injuria nor injuria absque damnum by themselves constitute a good cause of action.” George Hunt, Inc. v. Wash-Bowl, Inc., 348 So. 2d 910, 912, 1977 Fla. App. LEXIS 15920, at *5 (Fla. Dist. Ct. App. 1977) (quoting Stokes v. Victory Land Co., 99 Fla. 795, 802, 128 So. 408, 410 (1930)); Cocchiara, 353 Or. at 299 (“Most notably, a plaintiff will have to prove damages to bring a successful [fraud] claim.”); ... *** In the common law fraud context, “to be actionable the alleged misrepresentation must not only have induced the recipient’s reliance, but must also have caused the recipient’s loss.” Clayton v. Heartland Res., Inc., 754 F. Supp. 2d 884, 899, 2010 U.S. Dist. LEXIS 143996, at *41 (W.D. Ky. 2010) (quoting Flegles, Inc. v. Truserv Corp., 289 S.W.3d 544, 553, 2009 Ky. LEXIS 23, at *18 (2009)). Importantly, the term “cause” means “legal or proximate cause, which consists of a finding of causation in fact.” Id. (quoting Flegles, Inc., supra);...

What does it take to get me out of this discussion (besides my own apparent lack of common sense)? As you know, law is complicated: contracts law alone runs the gamut from commercial and consumer issues, different customs and practices in different trades, UCC and sale of services law, variations by State, equity jurisprudence and conflicts between jurisdictions. My original point has long since been mangled by lawyering: it's a bad business practice (my phrase) to try and sell something before you have it in your possession, particularly if still posted somewhere else, because it will off your customer base (or at least part of it), regardless whether someone has a legal right to sue or not. That was addressed to the mix in some earlier comments which didn't seem to distinguish what can sometimes be two very different "wrongs". Getting into the details of issues of law really clouded this up. My bad. For what I hope is the last time, I just want to point out one thing, this comment: No, I don't have it backwards. If you plug in "unique item" into what I wrote you get the same answer. If there is a unique piece, like art, then the person listing the item is implicitly saying that he/she had access to the goods and can sell them, not that he/she owns them. The fact that the access is someone generally listing them elsewhere should not change that result--unless the potential seller knows (or should know) he/she would not be able to get the item and still continues to offer it for sale. That would be some evidence of fraud.

Apparently, my message was understood. Briefly, no, a seller has no obligation to disclose whether he owns a piece of art under any theory in the absence of special circumstances. But, if he accepts an offer and does not perform, he is liable for breach of contract and resulting damages. If he has made an offer of sale with intent to defraud, that can be fraud, but an element of the prima facie case, as you presumably know, is damages. Same rule of law for breach of contract: a contract, a breach, resulting in damages. It’s that simple. There can be special circumstances. If, for example, a public advertisement requires any bidders to own a crane to perform work, they better own the crane or face disqualification—there bid can not be accepted. Bad business practice is not necessarily actionable, but it will damage a reputation and can lead to lost future income.

I am not twisting myself up into a pretzel for an excuse. I think that under common law contracts, and practicality, you are wrong. I am just tired of this subject.

I was going to let this go because this is not a law school test, but after this, I couldn't. You modified what you wrote the first time by claiming there must be a representation of ownership. I don't agree with that, and I still do not agree with this expanded claim. At most, there is an implicit promise by the person listing an item that he/she has access to the goods in question and can sell them. Dealers regularly sell things they do not own, nor hold as a bailment (to you non-lawyers, it means holding something for someone else, similar to a trust). There is no reason to have a direct agency with an owner (like a dealer) if someone holds a chose in action (a contract right) to purchase something. I doubt even that is required, because an attempted purchaser who could not obtain something could still sue the non-seller for breach of contract (maybe fraud, depending on intent of the non-seller). If there were a representation of ownership or control, then what happens to a dealer who does not produce the artwork someone has ordered? Assume a simple situation where the artist simply changes his/her mind (other reasons, maybe different results). In that case, the dealer could be sued by the buyer for breach of contract by failing to produce the artwork requested and be forced to pay damages. There may be specialized areas which produce a different result, but in general contracts law, which should apply here, I don't see it. Now I hope you will excuse me if I drop this discussion. I am here to get away from work, not to "double my pleasure" with more analysis.

The primary point of my earlier comment was that there is a difference between a bad business practice and unlawful conduct, not to go “LA Law” or something. I also have to point out that the OP and the target don’t use English as their primary language, so we shouldn’t be too fast to judge.

I don’t disagree with you. It’s a bad business practice, as I said earlier.

The law is always about damages. Fraud itself requires damages as an element of the case. What damages did the original owner suffer?

This isn’t a law school exam: it’s a question of whether the buyer did anything wrong. Maybe not under the law, but definitely as a matter of market etiquette. That is the reason for my Contracts synopsis for non-lawyers. If you want to play law school in your example: (1) there is no representation of ownership being made since there is no commercial contract containing a representation, and (2) unjust enrichment claims in most states require an expectancy by the person claiming unjust enrichment (the original seller in France) they they would be compensated by, in this case, the buyer from the buyer. No unjust enrichment claim here since the two never knew each other or communicated. “Good faith” as an enforceable implied contractual duty is legally irrelevant here—nothing suggests the sort of bad act triggering a breach of that duty (which is mostly used as a gap filler in written contracts anyway). But, there are conflict-of-laws questions, and a trivial copyright infringement claim. Anything else you want to try and impress me with?

There seems to be two different issues which are mixed: bad behavior and unlawful behavior. A contract is formed (in most cases) if there is an offer and an acceptance. Even if the buyer offered to buy but had not yet paid, or if the merchandise wasn’t shipped, will not change the fact that there is still a contract for sale. The buyer had the right to sell the right to the art created by the contract of sale. Regarding what actually happened seems to be unclear or in dispute between people whose English is limited. But even if there were no contract formed, the question remains: what was the legal harm? If the seller received what he sought, and the buyer received what he sought, then the harm to the original seller is for failing to price the art high enough or in the right forums. That is not the buyer’s fault. In terms of bad business behavior, that’s a different issue as this thread exemplifies. No buyer (or seller) should rub the other party’s nose in his bad decision by doing what was done here. It gets them ostracised from their field. Better to pay, get the product, and wait a little while first.

Note the context. He had paid for it, even if he did not have it in his hands. Where it becomes “wrong” is if it is fraudulent—taking money with no intention of providing it to the buyer.

Actually, if you read the replies, not everyone thought you did anything wrong in the transaction. I didn't see anything wrong with it, from what I could follow. On the other hand, what you have done with your spelling, punctuation and grammar is borderline criminal.

My first gouche, by Bill Reinhold, for a short team-up between GL and Phantom Stranger in Brave & Bold. I really like the way the tint looks on the page. I wish it were a more commonly used technique than it is. Now I ask you, how many other times have you seen the Phantom Stranger covered with leeches?

Free legal advice. Actually, you can sell something you don't own. In fact, you can sell your car, for example, to 10 different people if you want. But, if you do, then the 9 people who don't get the car can sue you for breach of contract damages.

Trust me, you aren’t the only one here who likes “very niche things”. The other side of the coin is that you will generally pay less for a piece by the same artist which is less “niche-y”.