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- From: tzs@carson.u.washington.edu (Tim Smith)
- Newsgroups: misc.consumers
- Subject: Re: KMart's policy if items scan at the wrong price.
- Date: 22 Jan 1993 12:34:54 GMT
- Organization: University of Washington School of Law, Class of '95
- Lines: 92
- Message-ID: <1jopleINNot@shelley.u.washington.edu>
- References: <C0wH3C.66I.2@cs.cmu.edu> <1jlsp6INNhc@shelley.u.washington.edu> <1_k3+rp@rpi.edu>
- NNTP-Posting-Host: carson.u.washington.edu
-
- In article <1_k3+rp@rpi.edu> wrf@ecse.rpi.edu (Wm Randolph Franklin) writes:
- >
- >In article <1jlsp6INNhc@shelley.u.washington.edu> on 21 Jan 1993 10:09:42 GMT,
- >tzs@carson.u.washington.edu (Tim Smith) writes:
- >
- > > $1.77
- > > -$1.42
- > > ------
- > > $0.35
- > >
- > > I'd be very curious to hear under what theory you claim that $0.35 is not
- > > sufficient restitution.
- >
- ...
- >Kmart is committing a crime here since they made on offer, on the shelf,
- >and I accepted it, by taking the item to the cashier. That makes a
- >contract. Then they try to charge more and hope I don't notice it.
-
- [The following assumes no statute applies]
-
- You are starting off with a fundamental misconception. Breaching a
- contract is not a crime. In fact, contract law *ENCOURAGES* the
- breach of contract! The legal consequences of a breach are that the
- breacher will basically have to pay damages. Damages are basically
- awarded to cover the expectation interest of the injured party. There
- is almost never a punitive damage award under contract law. To give
- an example, suppose we make a contract for me to sell you a computer
- for $2000. When you come to pick it up, I say "Sorry, I sold it to some
- other guy for $5000. Here's your $2000 back." You really need a computer,
- so you go to a computer dealer and buy an equivalent sytem for $2500. When
- you sue me, you will get $500 (the difference between the $2500 you had to
- pay and the $2000 you would have paid to by from me). Note that I made an
- extra $2500 by breaching my contract with you. The law is happy with this,
- because we have achieved an efficient allocation of resources. If you had
- bought a computer from a dealer for $1800 instead of $2500, you wouldn't get
- anything! (I'm leaving some things out here for simplicity: you could get
- back reasonable costs of finding the computer, and if I knew you were buying
- the computer because you had to do something by a certain time, and my
- breach delayed that while you found another computer, you could possibly get
- something for that, too).
-
- Another problem here is with the claim that there was a contract. The
- law is not settled on whether they made an offer. Until recently, a
- display on a shelf was considered to be in the same category as a newspaper
- ad or a catalog ad. Those are *NOT* offers -- they are invitations.
- (Sometimes, a newspaper ad will become an offer -- ads that advertise a
- definite quantity and specify definite persons ("The first ten customers
- tomorrow") have been found to be offers.) There has been a recent trend
- to hold displays on shelves to be offers, but the situation is not clear
- right now.
-
- If there is an offer, then there is the problem of when it is accepted.
- Is picking up an item and placing it in your basket an acceptance? If
- not, then the store would be free to change the price at any time up until
- you paid for it. On the other hand, if placing the item in your basket
- was an acceptance, then the store could sue *YOU* for breach of contract
- if you changed your mind before getting to the cash register and tried to
- put the item back!
-
- (I would guess that courts would find that placing the item in the basket
- creates an option contract, allowing you to take the item to the cash
- register and buy it for the price marked on the shelf, but I've not looked
- for any cases on this.)
-
- Furthermore, even if there is an offer to sell for $1.42, that doesn't
- prevent them from making other offers at the same time. The person at
- the cash register made an offer to sell for $1.77. If you hand them
- $1.77, but think you are accepting the $1.42 offer, then the best that
- happens for you as that the acceptance doesn't count -- you get the $1.77
- back, and they keep the item.
-
- Now if we are following the "you accepted when you took it from the shelf"
- theory, the best I can come up with for you is that they breached when they
- asked for $1.77, you covered the breach by buying for $1.77, and so you are
- entitled to the difference between the contract price ($1.42) and the
- price you had to pay to cover the breach ($1.77). So you get $0.35.
-
- At this point, we should look at the UCC, but it's not going to change
- much. In particular, the damages won't be changed -- the only stuff in
- the above that might change under a UCC analysis would be whether or not
- there was a contract.
-
- >
- >If someone steals something from me, I'm not satisfied by the article's
- >return. I want the thief punished. This is especially needed in crimes
- >like this to deter others.
-
- Unless there is a statute that they violated, there was no crime. If there
- was a statutory violation, then the State gets to punish them. You still
- only get $0.35, unless the statute calls for you to get something else.
-
- --Tim Smith
-