Search the Lounge

Categories

« How Did I Survive Before Facebook? | Main | Organ News »

April 19, 2010

Comments

Feed You can follow this conversation by subscribing to the comment feed for this post.

John

Don't most contracts, as well as courts, take into consideration "Acts of God?"

Stoneburner

Your friend is hot.

Concerned Citizen

I'd chalk that one up to "force majeure". I know natural gas pipeline contracts have those kinds of clauses, but I'm not sure about BMW purchase and delivery agreements...

Jenn4Mich

I hope someone had a force majeure clause in his contract...

mpw280

Force majeure? Airmail can't be shipped if the airlines are grounded through no fault of their own. Not a lawyer and won't play one on tv, but seems that this would be a decent starting point for a defense. mpw

Tom Krause

I would think this is an act of force majeure that would suspend the contract or at least excuse non-performance. Gosh, really a pretty easy issue. Also, what is the mail box rule in the jurisdiction where the BMW entity is located or does the contract specify what constitutes receipt? I once won a vexatious refusal to pay case against a life insurance company under the following facts: Decedent terminated his life insurance policy by written notice deposited in the mail on, as I recall, a THursday or Friday. Decedent died of natural causes on Sunday. Life insurance company received notice on Monday. Insurance policy stated policy cancelled upon receipt of notice by insurance company. Insurance company finally caved and paid up upon filing of suit.

Les

I suggest one area of consideration should be the application of the Frustration of Purpose doctrine. "If supervening circumstances beyond the control of either party make impossible of fulfillment the purpose which both parties had in mind when the contract was formed, both parties are discharged."

The doctrine dates back to the thousands of "Coronation Cases" after Queen Victoria died. Edward VII's parade through London past all of the big downtown hotels, which charged jacked up their prices to thousands of loyal subjects who eagerly agreed to pay those prices so that they could wave to their new King as he rode by in the carriage. Unfortunately, the new King got sick and the parade was rescheduled. The hotels wanted to collect the jacked up prices twice. The visitors wanted to pay just once because, after all,the whole purpose was to get to see the new King go by. The House of Lords came up with the doctrine in response to the thousands of lawsuits.

Impossibility should also be considered.

Christopherfountain

I'l admit to being a lawyer but I'm also a reasonably sensible human being - BMW wants to sell cars, no? Ya really think they'd cancel a sale under these circumstances? If they h one car left in inventory, maybe - then we sue. But I don't think so.

JLBurns

Well, first issue, what law applies. My guess would be German law. Presuming German contract law is similar to UCC, if the offer expires if not accepted by 4/25, there is no contract. As such, force majeure doesn't come into play. Not really a hard case.

Joe Blow

As Jimmy Buffett wisely put it:

See I don't know
I don't know
I don't know where I'm a gonna go
When the volcano blow

Now my girl quickly said to me
Man, you'd better watch your feet
That lava comes out soft and hot
You better lova me now or lova me not

As a real world attorney, rather than a perfesser, I think in this instance, the issue for BMW is, who you gonna love? Your right to rescind the contract for the buyer's failure to meet a material condition precedent (a most attractive right, even if he is a bit harsh), or 450 of your closest friends, all of whom happen to be named Benjamin? Were I in-house counsel, I'd urge the client to deem the buyer's duties substantially performed and waive any defect, and get some sweet, sweet lovin' from all them Benjamins. You better lova them now, or in the alternative you will certainly lova them not and your girl friend with the porn star name, Porsche Audi, will get a chance to lova them.

Just an engineer

To put aside the hypo regarding the contract and possible breach lets figure out a way for the Professor to comply with the contract terms and obtain her vehicle. Why not have BMW email her a new contract if she did not retain an original copy. The professor could either fax or email a scan of the signed contract to BMW. At the same time she could arrange for some type of electronic fund transfer to cover the down payment.

JEM

I'm no attorney but I have done BMW Euro Delivery; it's been ten years but it doesn't sound like the process has changed.

There's actually four players in this agreement - the buyer, the US dealer, BMW NA, and BMW AG in Germany. Each plays a specific role in the deal.

BMW AG provides a build date upon receiving the order from BMW NA, but will not actually build the car until the order is fully paid (or until BMW Financial Services signs off on the lease or loan.)

BMW NA will not place the order with BMW AG until the down payment is received.

If the order is placed and the buyer fails to show up in Munich to pick up the vehicle, the US dealer is on the hook - per their agreement with BMW NA - for certain fees relative to the disposition of the vehicle.

The question here is, what's the question?

I'm sure BMW AG will be happy to schedule a build date once the contract and deposit have been received, but it might not be 5/25. If she has travel plans built around that date, she might have a problem.

If she expects BMW AG to confirm a build date barely a month away even if the down payment has not yet been received she may be in trouble. She should probably be talking directly to the Euro Delivery office at BMW NA - not the dealer - about other means of satisfying them that she intends to perform.


chuckR

There's a fifth player in the game. It's called Just In Time. BMW may not be able to meet its obligation to deliver if supplier parts aren't delivered - just in time. Lines are starting to shut down - three German BMW plants among others.

Jonathan Nolan

I agree.

She IS hot.

Fat Man

1. Choice of law. What does the contract say? German, US state or CISG? CISG will govern [applies to contracts of sale of goods between parties whose places of business are in different States Art 1(a)] unless expressly excluded by the contract, or the transaction is a consumer transaction [Art. 2(a)].

http://www.cisg.law.pace.edu/cisg/text/treaty.html

2. Art 21 of CISG says:

"If a ... writing containing a late acceptance shows that it has been sent in such circumstances that if its transmission had been normal it would have reached the offeror in due time, the late acceptance is effective as an acceptance unless, without delay, the offeror orally informs the offeree that he considers his offer as having lapsed or dispatches a notice to that effect."

I don't think there is a comparable UCC provision.

Now, let us pretend that we are real lawyers. What would we do? Tomorrow is 4/21. Get on the phone early in the morning, Germany is 6 hours from EDT. And call BMW. Fax them a copy of the contract. Wire the deposit.

Brian G.

I am glad my standards for women didn't get lower when I got a law degree.

If force majuere were to apply, it would protect her from damages for a breach. It would not necessarily compel them to still have the car to sell her when payment did arrive.

She can't be the only one with problems, so I am sure it will all work out for her.

Joel Beach

Upon execution and tender of payment the contract was formed. The clause merely makes the agreement voidable. Your friend might want to use the disruption caused by the volcano as an opportunity to have some fun and attempt to renegotiate the deal. I bet that BMW is experiencing lower sales volume post-volcano and that they do not want to lose ANY if they can help it. If your friend feigns a bad case of buyers remorse she might get a better price (or some other not-previously-given benefit). Nothing ventured...

Jack

She's hotter than that damn volcano in Iceland, that's for sure!

PowellSONYA27

I opine that to receive the credit loans from creditors you must have a good motivation. Nevertheless, once I have got a credit loan, just because I was willing to buy a bike.

air jordans

Cultured and fine manners are everywhere a passport to regard.what do you think?

The comments to this entry are closed.

StatCounter

  • StatCounter
Blog powered by Typepad