Buyer offers seller $1000.00 to buy something. Seller agrees. The next day the seller informs the buyer they have changed their mind and do not want to sell (perhaps to someone else at a higher price). Does the buyer have recourse? Can the seller...
First, your question was originally posted in the real estate category -- so if that $1,000 "something" is real estate, then the contract must be in writing before it can be potentially enforceable. See California Civil Code section 1624.
Indeed, your question needs more information to determine if the "Statute of Frauds" applies to require a writing. See e.g. http://www.stimmel-law.com/en/articles/statute-frauds-california-contracts
For example in the California Commercial Code, “A contract for the sale of goods for the price of five hundred dollars ($500) or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought” [CA Commercial Code Sec. 2201 (1)].
And even if the Statute of Frauds does not apply to your situation, there is still the issue of whether there was a 'meeting of the minds' on all essential terms of your contract (i.e., price of goods, delivery time/logistics, quality of goods, quantity of goods). The seller would be contractually obligated only IF there was a meeting of the minds on all essential terms to create a valid oral contract (and again, there must be no Statute of Frauds defense -- incidentally, your question did not show any facts that would trigger the exceptions of promissory estoppel or implied in fact contract).
And after all that specific inquiry we come to the general inquiry -- for any oral contract to be valid in the eyes of the law, the following essential elements must be met: (1) clear offer, (2) clear acceptance of offer, and (3) mutual consideration - something valuable exchanged by both parties.See question
I'm selling my house. i have a buyer. We have agreed on terms and have entered escrow. The problem is the escrow officer is asking us (the seller) to sign and have notarized the grant deed stating that the house is "being sold for a valuable consi...
In Northern California, the grant deed is typically signed & notarized at the conclusion of the escrow period (approximately 1-7 days before close of escrow).
But in Southern California, the deed is typically signed & notarized at the beginning of the escrow period (approximately 5-10 days after signing the purchase contract). As an FYI for sellers -- only sign a deed early if you are working directly with an escrow company or an attorney. It may also help to know that the escrow will often have the seller sign page 2 of the deed upfront, but then before close of escrow they make necessary & appropriate changes to page 1 of the deed (such as the exact purchase amount, and the way that the buyers would like to receive (vest) title). Thus, it's okay that your deed reads "being sold for a valuable consideration, receipt of which is hereby acknowledged". Technically (legally), your deed is not transferred by the escrow officer to the buyer until the official date for close of escrow, so the current language "receipt of which is hereby acknowledged" is fine.See question
I issued a notice to perform to buyer and buyer failed to deliver by the deadline. I released the full deposit/cancellation of contract to buyer, but buyer refused to sign. Does it mean the contract still binding? I assume not because on the purch...
The contract may still be binding depending on the validity of your notice to buyer to close escrow. Did you meet all of your obligations (i.e., completing any pre-closing repairs you may have agreed to perform; making the house available for buyer's inspections and appraisal)? Are there any other special circumstances that buyer is inviting you to consider? These are the types of things you can discuss with your real estate agent and broker - they are there to help you.
If you're using the CAR contract, please also note there are different forms (Notice to Buyer to Perform (NBP form) is for contingencies; but a Notice to Buyer to Close Escrow (NCE form) is for close of escrow).See question
I went to an open house and the Agent (agent A) present was also the seller. I called him and told him I would like to see the house again. He told me that he would send the listing agent (agent B) that is a friend of his to avoid conflict of i...
Yes, it's legal. You are entitled to the representation of your choice. And the seller is entitled to sell the home at the price of the seller's choice. The seller's only obligation with regard to a buyer agent is that the seller must pay the commission they promised in the MLS (if the property was even listed on the MLS). However, a commission can still be negotiated (up or down) prior to entering a contract, or during a contract. You also have a self-help remedy -- you can hire your own legal representation (a real estate attorney) that you pay. With your own lawyer assisting you to review/edit documents and answer your questions, you would not feel cheated, but empowered and informed. I hope this response has been helpful.See question
I'm trying to understand why we as citizens can't be sovereign but States are
“There is, of course, a sphere within which the individual may assert the supremacy of his own will, and rightfully dispute the authority of any human government, especially of any free government existing under a written constitution, to interfere with the exercise of that will.” Jacobson v. Massachusetts (1905) 197 U.S. 11, 29 (1905).
However, as a matter of constitutional law, rights do not exist in a vacuum; in fact, they often clash with other rights, if not the rights of others around them. As such, when assessing whether certain actions are protected as a valid exercise of one’s rights—or alternatively, when assessing the validity of limitations inherent to or placed upon that right by the government—the issue is, in actuality, trifold: does a constitutionally or statutorily cognizable right exist, either under federal or state law? Where does the right begin? And where does it end?See question
For example, if an amendment is adopted that requires all citizens to hop on one foot for 1 hour on every second Friday, would it be upheld by the courts? Even if it is nonsensical or unenforceable? The claim "it is unconstitutional" wouldn't ho...
In a republic, absolute power is unconstitutional.
First, the constitution provides inherent checks and balances upon the authority of government, and it has been well settled since Marbury v. Madison (1803) that courts may interpret the scope of the constitution and scrutinize any statement or action claimed to be law (including a statement within the constitution). See e.g., Jacobson v. Massachusetts, "There is, of course, a sphere within which the individual may assert the supremacy of his own will, and rightfully dispute the authority of any human government, especially of any free government existing under a written constitution, to interfere with the exercise of that will." 197 U.S. 11, 29 (1905).
Second, every law must at least meet what is called the "rational basis" test. This means that if a written law is grossly illogical and has no rational basis for meeting a governmental interest, then it is void on its face. This rule applies to constitutions as well as statutes (remember that the US constitution does not exist in a vacuum but rather in a republican government it must be interpreted in light of State constitutions (powers of the States) and the rights of people). Moreover, any rule that infringes fundamental rights/liberties is subjected to more than just the rational basis test (so, a law requiring mandatory hopping exercises and otherwise infringing fundamental liberty is unconstitutional because it is not narrowly written to accomplish a compelling government purpose ). The concurring opinion of Stevens in New York State Bd. of Elections v. Lopez Torres, 552 U.S. ___, ___ (2008) quoted comically the low bar of most laws ("The Constitution does not prohibit legislatures from enacting stupid laws."), but Stevens is not empowered to claim a grossly illogical/unjust law is unassailable. See the legal citations in this post for confirmation.
Third, under national and international law, courts and officers are not authorized to work an inequity. Equity is another word for 'fairness', but it also invokes the common law principle of traditional justice and common sense. So the answer here is that the ridiculous and oppressive law would be unenforceable. See, Discretion to Disobey, A Study of Lawful Departures from Legal Rules (1973); see also, Uniform Code of Military Justice (UCMJ) 809 Art. 90, specifying that military personnel are only asked to obey a "lawful" command or order of a superior officer. International Human Rights Standards for Law Enforcement, A Pocket Book on Human Rights for the Police ("Officials who refuse unlawful superior orders shall be given immunity.") The ancient principle comes from "lex injusta non est lex,” meaning an unjust law is not a law. See also, Norton v. Shelby County, 118 US 425 (1885), "An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed." Learn from the Nuremberg trials too - a law derives its authority from its virtue, not its mere issuance. Another example - the law of equity allows courts to strike (or narrowly interpret) a provision from any document or law when it is in conflict with another provision of the same document. In order to decide which provision to strike, the court must first determine how to reach a fair and equitable outcome. I have never found any statement in any court case where the judge even attempted to say that the constitution trumps the law of equity or permits injustice.
Third, under the due process clause, a law can be invalidated if men of ordinary intelligence are not able to discern its meaning and application. See e.g., Winters v. New York, 333 U.S. 507. While this standard of intelligence has traditionally been applied to laws that are overly vague or enforced inequitably, it finds application here by virtue of the related rules of judicial scrutiny discussed above.See question
Congress passed a law entitled "just stay in school" prohibiting the non-mainstream religious organizations from distributing church propaganda withing 500 feet of any public school. congress justified the regulation based on th commerse clause of...
For a somewhat similar case challenging commerce clause authority over a constitutionally protected activity near a public school, you can look to the Supreme Court's decision in United States v. Lopez - 514 U.S. 549 (1995). In that case, the Court examined possession of a firearm within a certain number of feet of a school zone.
Even in the Lopez case, the commerce clause was interpreted very expansively (albeit in the process of providing a nominal-type of test/limit upon the clause). You can trace the modern history of the commerce clause back to the 'New Deal' presented by FDR.See question
Is the 'severability clause' which states that 'if any provision is rendered illegal or invalid or unenforceable, all other parts shall remain in full force and effect" helpful to ensure enforceability of such other provisions?
Christine is correct. And indeed, these clauses have become so common that some courts have applied the 'severability clause' principle as a matter of contract law even when the clause is not actually present in the contract. Sometimes it is referred to as an 'equitable doctrine' because it has created a contract law principle that has such a strong cross-over with the law of equity (applied to damages and enforcement).
In a nutshell, if a court is going to enforce a contract it will not strike or add provisions that materially rewrite the terms of the deal. By contrast, in assessing damages (or otherwise enforcing the contract) a court may add or delete a provision to contractually or equitably achieve the 'benefit of the bargain.' So at the performance/enforcement stage, we ask 'what is the illegal/invalid' provision that must be severed? Does it materially affect the deal? Can the court narrowly write an order striking or adding provisions here without creating an injustice? You see, if changing the contract would work an 'inequity' then even the 'severability clause' is of questionable enforcement.
The law of equity is very interesting. You might even say 'equity' is among the supreme laws of the land, at least on the matter of contract enforcement.See question
Like how they overmedicate children or how they take children when there is no abuse or neglect. Can a gag order be placed against me if I write the truth about CPS on my website?
1st Amendment freedom of speech ensures that it is very difficult for courts to issue gag orders on speech. This area of law is called "prior restraint", and gag orders are only 'authorized' for clear and present danger of a very serious nature, such as 'national security', to ensure 'fair trials', and apparently some 'copyright violations'. Here is a useful initial resource: http://www.rcfp.org/handbook/?pg=5-1
This legal area of 'prior restraint' has developed over the years as zealous courts have issued many gag orders by extending/testing the exceptions to prohibitions on prior restraint, including the 'fair trial' exception.
Indeed, this area of law involves a struggle between freedom of the press (including citizen journalism) and the power of the judiciary. It probably feels ironic that you need the courts to protect you from the courts, but I'm not sure there is any better method. The bright light of the media and public discourse is embraced by constitutional checks and balances. If your website is presenting factual evidence in a credible manner, it should attract attention in time.
And on that note, be careful with your "truth". Legal conclusions are often just extensions of a rant. Focus on hard evidence instead. It is far more defensible for a court to place a gag order on this statement, "Judge Evil is a lying, kidnapping, murderer" as compared to this statement "In the case of John M. v. State, the judge excluded the following key testimony by the victim ..."See question
Dear Sir/Madam, Now that I have graduated from medical school, I wish to start a website to help the uninsured, economically challenged, or people who simply want a second opinion have an avenue to ask their health related questions. This webs...
With full disclosure of your credentials, self-control in your statements, and consistent disclaimers, you should be fine.
You can learn from the disclaimer provided by NaturalNews.com, "NaturalNews cannot offer medical advice of any kind. If you have a personal health question, please consult a qualified naturopathic health practitioner in your area."
The medical establishment has placed a monopoly on the phrase "medical advice", but its doppelganger "medical information" is generally okay (the constitutional republic apparently hasn't been completely discarded in this country).
Each State will have its own Medical Board that may interpret these terms (advice and information) differently. See for example, California B&P Code sections 2052 and 2400. So there is a quantum of risk to navigate here that simply comes with the territory (of every State in which you transmit your website information).
Here are three main criteria that courts in America generally use to distinguish between 'clinical advice' and 'medical information': (1) direct or personal communication between patient and provider; (2) provision of professional judgment tailored to the patient’s particular medical circumstances and information provided by the patient; and (3) closure to the encounter or sufficient information for the patient to act without seeking further medical advice.
If it existed 2,000 years ago, would the medical board of California have imprisoned the biblical messiah for being unlicensed: http://www.mbc.ca.gov/licensee/corporate_practice.htmlSee question