How do you spot a land pirate?

Cottontop · Oct 8, 2015

BandB said:
Great point on the drop dead date for major projects. It's common in the construction industry. If one is going to use it they should specify the penalty and even why there's a penalty.

Many people put "time is of the essence" in a contract. It means absolutely nothing. You still have to prove it really was. Just because it's in the contract does not give an assumption it's true.

In days of yore, contracts were often about farm produce, and stuff was shipped on sailing vessels. Dates in contracts were understood to be estimates, and courts would allow reasonable deviations from those estimates. The presumption that dates in a contract are merely estimates survives in US contract law today.

In our modern world, parties often want dates in a contract to be strictly complied with; the dates are not to be treated as estimates, and any failure to perform in accordance with the dates in the contract will be a breach. "Time is of the essence" is a term of art used to express the contracting parties agreement in this regard, and the phrase is very important when it appears.

US contract law will not enforce penalties.

BandB · Oct 8, 2015

Cottontop said:
"Time is of the essence" is a term of art used to express the contracting parties agreement in this regard, and the phrase is very important when it appears.

US contract law will not enforce penalties.

We're getting a bit technical, but I somewhat disagree with those two statements. Like everything legal, there are caveats.

Time is of the essence is sometimes an important clause, but when it comes down to it the harmed party must still prove it really was in court plus the damages from not meeting that time. The statement by itself doesn't get you anything.

You're correct that the law doesn't enforce penalties. You don't write them as penalties. They are agreed amounts for liquidated damages as a result of missing the time. They are enforceable. They can't be ridiculous numbers that have no relationship to reality, but if they're reasonable and based on some facts, then they're enforceable.

A simple example. Building a Wendy's. If you're late, my opening is delayed. Costs are incurred and profits are lost. Rather than have to determine later we agree to x amount per day as liquidated damages. It's not a penalty, although it does penalize.

Cottontop · Oct 8, 2015

BandB said:
We're getting a bit technical, but I somewhat disagree with those two statements. Like everything legal, there are caveats.

Time is of the essence is sometimes an important clause, but when it comes down to it the harmed party must still prove it really was in court plus the damages from not meeting that time. The statement by itself doesn't get you anything.

You're correct that the law doesn't enforce penalties. You don't write them as penalties. They are agreed amounts for liquidated damages as a result of missing the time. They are enforceable. They can't be ridiculous numbers that have no relationship to reality, but if they're reasonable and based on some facts, then they're enforceable.

A simple example. Building a Wendy's. If you're late, my opening is delayed. Costs are incurred and profits are lost. Rather than have to determine later we agree to x amount per day as liquidated damages. It's not a penalty, although it does penalize.

If a contract contains a "time is of the essence" provision, and one party misses a date, then that party has breached, period. The non-breaching party does not have to prove the date was important. Lots of consequences can flow from breach. Absent a liquidated damages provision, damages will have to be proven.

Penalties are punitive; liquidated damages are not. The words matter, here. Breach will not be punished (see "efficient breach"). As long as a LD provision is not a penalty in disguise, it will usually be enforced.

GFC · Oct 8, 2015

I use PayPal for almost all online shopping. PayPal debits my checking account directly and my bank calls me before they approve a purchase from PayPal if it's over $100.

There are MANY advantages to doing all your banking with a smaller, home town bank.

Heron · Oct 8, 2015

GFC said:
I use PayPal for almost all online shopping. PayPal debits my checking account directly and my bank calls me before they approve a purchase from PayPal if it's over $100.

.

I've used a Paypal Debit card, linked to my paypal business account for years. For the most part it's worked well. My transactions were almost exclusively online. I had different cards for the same account, one in my wallet, the other exclusively online. on 3 occasions the online card was hacked. in Every instance Paypal stood behind it and covered the fraudulent activity...This is with $30-40K worth of transactions a year. IMO, it's pretty safe!

BandB · Oct 8, 2015

Heron said:
I've used a Paypal Debit card, linked to my paypal business account for years. For the most part it's worked well. My transactions were almost exclusively online. I had different cards for the same account, one in my wallet, the other exclusively online. on 3 occasions the online card was hacked. in Every instance Paypal stood behind it and covered the fraudulent activity...This is with $30-40K worth of transactions a year. IMO, it's pretty safe!

Actually you pointed out a bit of a contradiction. People are using Paypal for safety. However, there have been many reports of Paypal accounts being hacked. Just google "paypal hacked" and then decide for yourself. This doesn't distinguish them from banks though, which have had their share of problems.

Whatever source you use and however you conduct business, alerts and watching the account remain essential.

Heron · Oct 8, 2015

BandB said:
Actually you pointed out a bit of a contradiction. People are using Paypal for safety. However, there have been many reports of Paypal accounts being hacked. Just google "paypal hacked" and then decide for yourself. This doesn't distinguish them from banks though, which have had their share of problems.

Whatever source you use and however you conduct business, alerts and watching the account remain essential.

In my case it was no different than using any other debit card. It just happened to be Paypal branded and linked to that account.

Watching your account is critical. In my cases it was literally caught by me within an hour or so of the fraudulent charges registering..

Nothing is failsafe these days..

Serene86 · Oct 9, 2015

dhays said:
I fail to see the problem. The owner simply had an unrealistic expectation of his boats value. That isn't exactly uncommon. Just because someone doesn't want to sell you something at the price you set, doesn't make them a land pirate. They might be an idiot, but that doesn't mean they are trying to cheat you.

Why were you making an offer on the piece of junk anyway?

Only made an offer because he didn't understand, "We don't want to make an offer". In my text thanking him for his time I said we were continuing our search and didn't want to make an offer. Then the next day on the phone he kept insisting I throw a number out. I told him three times we didn't want to buy the boat. To see how serious he was about "working with us", I finally told him 10k. He could have started negotiating but instead, hung up the phone. Other pertinent info: His wife is living 200 miles away and insists he get rid of the boat and move his butt to their home. Also, I know his boss and because my pirate sense was tingling, made a call confirming my intuition. Also found out, unbeknownst to him, his replacement had been hired that day.

OldToby · Oct 9, 2015

Penalties and liquidated damages clauses are both minefields. A better way to keep your contractor on the ball and avoid possible misunderstanding (or litigation) is to include incentives for early performance.

dhays · Oct 9, 2015

Serene86 said:
Only made an offer because he didn't understand, "We don't want to make an offer". In my text thanking him for his time I said we were continuing our search and didn't want to make an offer. Then the next day on the phone he kept insisting I throw a number out. I told him three times we didn't want to buy the boat. To see how serious he was about "working with us", I finally told him 10k. He could have started negotiating but instead, hung up the phone. Other pertinent info: His wife is living 200 miles away and insists he get rid of the boat and move his butt to their home. Also, I know his boss and because my pirate sense was tingling, made a call confirming my intuition. Also found out, unbeknownst to him, his replacement had been hired that day.

hehe, great story. Yeah, the poor guy has some issues. I see why you would make that offer in that situation. It sounds as if he would have been much better off taking your offer!

How do you spot a land pirate?

Cottontop

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BandB

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Cottontop

Senior Member

GFC

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Heron

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BandB

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Heron

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Serene86

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OldToby

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dhays

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