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Old 08-16-2012, 08:31 PM
 
397 posts, read 491,542 times
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Quote:
Originally Posted by marksmu View Post
I choose Arkansas for you b/c I know that is where you (The Captain) are.
Could be wrong but I think the Captain hails from AZ. Heard the temp topped out over 110 there today. I think his comments can only be explained by heat stroke.

 
Old 08-16-2012, 08:32 PM
 
Location: Pinal County, Arizona
25,107 posts, read 34,371,245 times
Reputation: 4893
Quote:
Originally Posted by RE Skeptic View Post
Could be wrong but I think the Captain hails from AZ. Heard the temp topped out over 110 there today. I think his comments can only be explained by heat stroke.
Capt is from AZ
 
Old 08-16-2012, 08:38 PM
 
1,724 posts, read 2,272,654 times
Reputation: 3424
Quote:
Originally Posted by Greatday View Post
Capt is from AZ
Well I knew it was an A state....Im not redoing it at this point. I will make an assumption that Arizona is the same as Arkansas and Texas which both follow the above rule.

If Im wrong, Im wrong...Im not logging back in to do another search for it. He will have to point me to a citation like I did, that is not just the restatement of torts...
 
Old 08-16-2012, 10:40 PM
 
Location: Pinal County, Arizona
25,107 posts, read 34,371,245 times
Reputation: 4893
Arkansas and Texas law and Arkansas and Texas decisions will often be different. Arizona legal influences are different
 
Old 08-17-2012, 11:17 AM
 
Location: Gilbert - Val Vista Lakes
6,069 posts, read 12,676,581 times
Reputation: 3809
Quote:
Originally Posted by marksmu View Post
... He will have to point me to a citation like I did, that is not just the restatement of torts...
It's actually the restatement of the law, Contracts that we're referring to, not the restatement of torts.

Marksmu would like to downplay the importance of the Restatement of the Law, Contracts.

Quote:
The Restatement (Second) of the Law of Contracts is one of the best-recognized and frequently-cited legal treatises in all of American jurisprudence. Every first year law student in the United States is exposed to it, and it is probably the most-cited non-binding authority in all of U.S. common law in the areas of contracts and commercial transactions. It is a work without peer in terms of overall influence and recognition among the bar and bench, with the possible exception of the Restatement of Torts.
There are plenty of citations in the volume, that go to support the statements throughout the sections, but I do not have access to them in my office, and the discussion is not worth my time to go to the library. We also know that different courts, and different states will apply their own interpretation to the restatements.

On the next post, I will use the restatement to refute the assertions made by Marksmu.

As I state in the next post, any citation that I would use, would be the cases that show the law to support my position. Any citation that Marksmu produces will be one that would support his position.

Consequently it would be a futile effort for either of us to begin looking up cases, because in the end it would be up to two attorneys to argue the legal concepts and facts in court, and a judge issuing instructions to the jury to render a verdict.

The restatement supports my position that the contract would be voidable by the victim, and especially if it is induced by a third party, such as unrepresented buyer; and primarily because the agent would have no "reasonable alternative". But Marksmu would not want anyone to know that, so he would downplay the restatement. After all, he is the opposition, and that's normal.

Since Marksmu has argued his position and supplied citations in Arkansas; and that I could not access; and since I am going to argue my position on my next (long) post; and since from that point we would only argue the position ad nauseum, knowing that only a jury would have the final decision, I think the discussion of what the law will do, will serve no further purpose and should be concluded.

Last edited by Captain Bill; 08-17-2012 at 11:33 AM..
 
Old 08-17-2012, 11:34 AM
 
Location: Columbia, SC
8,848 posts, read 17,447,111 times
Reputation: 6202
Quote:
Originally Posted by RE Skeptic View Post
You never answered my question. What is a troll?

Sounds derogatory but I don't know how it relates to this thread or the comments I have posted.
You never answered my question. How did your deal work out?
 
Old 08-17-2012, 12:27 PM
 
413 posts, read 698,832 times
Reputation: 293
Quote:
Originally Posted by Captain Bill View Post
The restatement supports my position that the contract would be voidable by the victim, and especially if it is induced by a third party, such as unrepresented buyer; and primarily because the agent would have no "reasonable alternative". But Marksmu would not want anyone to know that, so he would downplay the restatement. After all, he is the opposition, and that's normal.
You are not trying to void the contract. The contract is the listing agreement between seller and you. You want the contract enforced. You just want to sue the seller when he tells his friends not to hire you.

Restatement of Contracts is not going to help you. You want the contract enforced which is not an issue. The contract certainly does not say anything about awarding you damages in case the seller speaks negatively of you. There is nothing contract law can possibly do for you.

Look at it this way.

1. Is there any term written in your listing agreement which is going to prevent your client from speaking negatively about you.

2. Do you want to cancel or modify your listing agreement.

Since you know the answer is no to both questions there is nothing that contract law can do for you. There is not any term in the contract that you want a court to enforce and you do not want to break the contract.

What you want is to prevent the seller from speaking negatively about you or if he does so to be monetarily compensated. This is a tort. However there is nothing in tort law that will support your position. The closest thing would be extortion but you don't meet any of the criteria. Pasted below is Arizona extortion statute.

Universal Citation: AZ Rev Stat § 13-1804 (1996 through 1st Reg Sess 50th Legis)

13-1804. Theft by extortion; classification

A. A person commits theft by extortion by knowingly obtaining or seeking to obtain property or services by means of a threat to do in the future any of the following:

1. Cause physical injury to anyone by means of a deadly weapon or dangerous instrument.

2. Cause physical injury to anyone except as provided in paragraph 1 of this subsection.

3. Cause damage to property.

4. Engage in other conduct constituting an offense.

5. Accuse anyone of a crime or bring criminal charges against anyone.

6. Expose a secret or an asserted fact, whether true or false, tending to subject anyone to hatred, contempt or ridicule or to impair the person's credit or business.

7. Take or withhold action as a public servant or cause a public servant to take or withhold action.

8. Cause anyone to part with any property.

Your seller can talk bad about you or fail to give you referrals and does not violate any of those criteria.
 
Old 08-17-2012, 12:34 PM
 
1,724 posts, read 2,272,654 times
Reputation: 3424
Quote:
Originally Posted by Captain Bill View Post
It's actually the restatement of the law, Contracts that we're referring to, not the restatement of torts.

Marksmu would like to downplay the importance of the Restatement of the Law, Contracts.
I downplay nothing. The restatement does not support your reading of it, which is why I asked you to cite a source other than the restatement. The source would be a court opinion interpreting the restatement the way you have.

Quote:
Originally Posted by Captain Bill View Post
We also know that different courts, and different states will apply their own interpretation to the restatements.
Agree here, but the courts are pretty much in unanimous agreement about what constitute duress...

Quote:
Originally Posted by Captain Bill View Post

The restatement supports my position that the contract would be voidable by the victim, and especially if it is induced by a third party, such as unrepresented buyer; and primarily because the agent would have no "reasonable alternative". But Marksmu would not want anyone to know that, so he would downplay the restatement. After all, he is the opposition, and that's normal.

Since Marksmu has argued his position and supplied citations in Arkansas; and that I could not access; and since I am going to argue my position on my next (long) post; and since from that point we would only argue the position ad nauseum, knowing that only a jury would have the final decision, I think the discussion of what the law will do, will serve no further purpose and should be concluded.
The problem is that I actually did search and I found nothing supporting your interpretation....

The case I pasted below is from a contract where the two parties disagreed upon the amount due and one party was in debt and could not afford to fight over the payment...the party claiming duress cashed the check so they could settle debts and then sued saying it was take it or leave it and that the cashing of the check was not an accord...that party lost...despite the wording of the contract supporting their case - the court ruled that it was not duress...merely a modification of the contract after completion.

This case is cited over and over and over again in Arizona...its Keycite is green meaning it has not been over-ruled and that it is still good law.

Frank Culver Elec., Inc v. Jorgenson
136 Ariz. 76, 664 P.2d 226
Ariz. App., 1983
January 31, 1983


The disputed element in the present case is whether an assent or meeting of the minds of the parties occurred at the June 2 meeting in Sierra Vista. The parties were apparently in disagreement as to the amount owed at that time. The appellants offered in payment a check in an amount less than that requested by the appellee. The words “final invoice” were written on the front of the check. The appellee testified that the appellants had indicated they would pay only the amount on the check. That was all they were going to pay. The appellants testified that both parties understood that the check was the final payment in full. The appellee accepted the check and cashed it.

We can only conclude that the appellee understood the check to be intended as a final payment. The appellee's assent may be inferred from its acceptance and cashing of the check. See Calamari and Perillo, Contracts § 65, p. 128 (1970); Williston on Contracts § 1854, p. 547 (3d Ed.1972). As we stated in mobillife Corp. v. Delta Inv “[t]he general rule is that the acceptance and use of a remittance by check which purports to be a payment ‘in full,’ or which implies words of similar meaning, or is accompanied by a letter to that effect, constitute an accord and satisfaction of the larger claim of the creditor, assuming the claim is unliquidated or disputed.” Id This Arizona rule is in accord with general authority. Corbin on Contracts, § 1279, p. 131 (1962); Restatement 2d of the Law of Contracts, § 281, p. 384 Illustration 6.

[2] [3] The appellee also argues that the accord, if any, was voidable since assent was given under duress. The appellants knew that the appellee was being pressured by its creditors. The appellee contends that it agreed to accept the amount of the check in payment without protest only to alleviate that pressure. The appellee cites the Restatement 2d of Contracts, § 175 to the effect that “[i]f a party's manifestation of assent is induced by an improper threat by the other party that leaves the victim no reasonable alternative, the contract is voidable by the victim.” The appellee also relies on the doctrine of business compulsion or economic duress “in which one is compelled to act against his will in such a manner that he suffers a serious business loss or is compelled to make a monetary payment to his detriment.” *78 **228 Starks v. Field, 198 Wash. 593, 89 P.2d 513 (1939). The evidence does not show that the appellants either threatened or compelled the appellee to assent to the accord and satisfaction against its will. Neither can we conclude that the acceptance of the check was the only reasonable alternative remaining for the appellee. The doctrine of business compulsion requires both. Totem Marine T & B v. Alyeska Pipeline, etc., Alaska, 584 P.2d 15 (1978); Annot. 9 A.L.R. 4th 942, 946 (1981). The mere fact that the appellants were aware of the appellee's financial pressures does not constitute business compulsion.

A charge of economic duress or business compulsion must be based on the acts or conduct of the opposite party and not merely on the necessities of the purported victim, or on his fear of what a third person might do, and the mere fact that a person enters into a contract with reluctance, or as a result of the pressure of business circumstances, financial embarrassment, or economic necessity, does not, of itself, constitute business compulsion or economic duress invalidating the contract.


Unless wrongful, unlawful, or unconscionable pressure is applied there is no business compulsion amounting to duress ....” 17 C.J.S. Contracts § 177.


-------END OF ME PASTING--------

As I already mentioned it is not unlawful for the Buyer to ask the Seller to ask his agent to reduce commission...it is unlawful to require it, but I can see no circumstances where a buyer could require the seller to do anything....The seller and the broker are both still operating on their own free will.

There is no influence here that removes the Brokers free will and there is no situation that removes the sellers free will.
 
Old 08-17-2012, 12:38 PM
 
413 posts, read 698,832 times
Reputation: 293
So after 52 pages the sum of Captain Bill's argument is this:

1. A buyer should not be able to inform the seller that if the buyer has no representation then CaptainBill will not have to pay a commission to the buyers agent.

2. If he does it should be illegal.

3. It should be illegal because the seller might get mad and threaten to give Captain Bill bad reviews and steer his friends away from using Captain Bill as their realtor.

4. If the seller does threaten to steer his friends away then that should be illegal.

You obviously realize your seller might be upset when he learns of this. You are obviously concerned that the seller will not find this to be fair. So why don't you just have a listing agreement which is fair?

The reason myself and a few others have jumped all over you is because the term is unfair. At first your defense was its a signed contract and its a done deal. Now your attitude is not only its a signed contract but nobody should be able to point out to my client the unfair terms. I am sorry but this is America. You can have your contract enforced if you want, but you can't stop anybody from pointing out that the other party is on the wrong end of an unfair contract.
 
Old 08-17-2012, 07:24 PM
 
Location: Needham, MA
6,324 posts, read 9,033,141 times
Reputation: 5324
Quote:
Originally Posted by Brandon Hoffman View Post
You never answered my question. How did your deal work out?
I'm not even paying attention to anything else in this thread at this point. It's really devolved into something I'm not interested in taking part in. I just want to know whatever happened with the OP's offer.
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