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Posted 06/05/2007 07:46 am
I hope I'm not beating this to death; but it is an interesting question. I think Houston_guy is incorrect that this seller's actions would not constitutute common law fraud. All the elements are easily met: (a) a representation (b) false (c) having to do with past or presnt fact (d) that is material, and (d) that the representor knew to be false and asserted the fact without knowledge whether it was true with intent to induce the other person to act.
It does not matter that there were several replicas listed next to this listing: they were clearly labeled as copies or replicas. This one wasn't. In fact it was advertised as a 1804 silver dollar. That is a factual representation. Later, in response to questions, the seller admits he does not know if his original assertion is true. He does not correct it however. He holds out the possibility that the buyer will get an actual 1804 silver dollar. He is counting on the possibility that there are naive, clueless, gullible and, yes, greedy people out there who will be sloppy in their DD and buy this coin. These are usually just the kind of people our laws are designed to protect. It should be highly probative that several honest sellers labeled their copies and replicas clearly as such, while this seller didn't.
This seller would likely mount the affirmative defense that he wasn't really representing this to be an actual 1804 silver dollar or a copy - just a coin of uncertain origin that may or may not be real. A lottery ticket so to speak. I think it's a close call but should come down to intent. This guy had an intent to take someone's money thru deception.
As to the affirmative defense that no reasonable person could have justifiable reliance on the seller's representations - that'll just do more harm than good. You mean you represented this to be an 1804 silver dollar knowing that no reasonable person could take that claim seriously? Not a very good defense, IMHO.
It does not matter that there were several replicas listed next to this listing: they were clearly labeled as copies or replicas. This one wasn't. In fact it was advertised as a 1804 silver dollar. That is a factual representation. Later, in response to questions, the seller admits he does not know if his original assertion is true. He does not correct it however. He holds out the possibility that the buyer will get an actual 1804 silver dollar. He is counting on the possibility that there are naive, clueless, gullible and, yes, greedy people out there who will be sloppy in their DD and buy this coin. These are usually just the kind of people our laws are designed to protect. It should be highly probative that several honest sellers labeled their copies and replicas clearly as such, while this seller didn't.
This seller would likely mount the affirmative defense that he wasn't really representing this to be an actual 1804 silver dollar or a copy - just a coin of uncertain origin that may or may not be real. A lottery ticket so to speak. I think it's a close call but should come down to intent. This guy had an intent to take someone's money thru deception.
As to the affirmative defense that no reasonable person could have justifiable reliance on the seller's representations - that'll just do more harm than good. You mean you represented this to be an 1804 silver dollar knowing that no reasonable person could take that claim seriously? Not a very good defense, IMHO.
