Re: Butterfly Labs Forced "On Hold For Refund" for all my Single SC orders
the Implied contract your talking about is covered under UCC there it the revision (which I understand to be the controlling factor) for the state of missouri:
http://www.moga.mo.gov/statutes/C400-499/40002A0505.HTM
http://www.moga.mo.gov/statutes/C400-499/40002A0505.HTM
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400.2A-505. (1) On cancellation of the lease contract, all obligations that are still executory on both sides are discharged, but any right based on prior default or performance survives, and the cancelling party also retains any remedy for default of the whole lease contract or any unperformed balance.
(2) On termination of the lease contract, all obligations that are still executory on both sides are discharged but any right based on prior default or performance survives.
(3) Unless the contrary intention clearly appears, expressions of "cancellation", "rescission", or the like of the lease contract may not be construed as a renunciation or discharge of any claim in damages for an antecedent default.
(4) Rights and remedies for material misrepresentation or fraud include all rights and remedies available under this Article for default.
(5) Neither rescission nor a claim for rescission of the lease contract nor rejection or return of the goods may bar or be deemed inconsistent with a claim for damages or other right or remedy.
(2) On termination of the lease contract, all obligations that are still executory on both sides are discharged but any right based on prior default or performance survives.
(3) Unless the contrary intention clearly appears, expressions of "cancellation", "rescission", or the like of the lease contract may not be construed as a renunciation or discharge of any claim in damages for an antecedent default.
(4) Rights and remedies for material misrepresentation or fraud include all rights and remedies available under this Article for default.
(5) Neither rescission nor a claim for rescission of the lease contract nor rejection or return of the goods may bar or be deemed inconsistent with a claim for damages or other right or remedy.
http://www.moga.mo.gov/statutes/chapters/chap407.htm
Quote
407.020. 1. The act, use or employment by any person of any deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression, or omission of any material fact in connection with the sale or advertisement of any merchandise in trade or commerce or the solicitation of any funds for any charitable purpose, as defined in section 407.453, in or from the state of Missouri, is declared to be an unlawful practice. The use by any person, in connection with the sale or advertisement of any merchandise in trade or commerce or the solicitation of any funds for any charitable purpose, as defined in section 407.453, in or from the state of Missouri of the fact that the attorney general has approved any filing required by this chapter as the approval, sanction or endorsement of any activity, project or action of such person, is declared to be an unlawful practice. Any act, use or employment declared unlawful by this subsection violates this subsection whether committed before, during or after the sale, advertisement or solicitation.
That I believe would be the governing statute in the state of MissouriNow I'm no lawyer, so correct me where you see fit to argue point or redirect me to where you feel I haven't looked.
but it seems that (1) says that cancellation relieves both parties from "obligations that are still executory", so unless he can prove prior breach, there is no recourse
please let me know if I miss something.
also christians(xian)'s order http://i.imgur.com/V2b80U1.jpg
was placed when the web site appeared like this:
http://web.archive.org/web/20120628113158/http://www.butterflylabs.com/order-form-bitforce-sc-single/
it cleared stated "currently scheduled for October", which clearly show "scheduled" not "shipping" which is a huge difference.
so that's out as point of default
but it seems that (1) says that cancellation relieves both parties from "obligations that are still executory", so unless he can prove prior breach, there is no recourse
please let me know if I miss something.
also christians(xian)'s order http://i.imgur.com/V2b80U1.jpg
was placed when the web site appeared like this:
http://web.archive.org/web/20120628113158/http://www.butterflylabs.com/order-form-bitforce-sc-single/
it cleared stated "currently scheduled for October", which clearly show "scheduled" not "shipping" which is a huge difference.
so that's out as point of default
Yes, when he ordered it was scheduled for October. After that date came and went, the series of misrepresentations about the state of the product became more numerous. But even before then, statements about measurements of power usage and performance were made. It was only after BFL shipped their first few units that people realized that those claims about power usage could not possibly have been valid. In fact, there is much evidence to suggest that BFL did not have any working chips at all by October 2012. Of course, that would have made it impossible to measure the power usage of them.
and since he and everybody else who didn't just accept the refund agreed to the new specification in accordance with UCC, there isn't much else to say... .
now I'm no lawyer and this isn't to be construed as legal advice, feel free to point to the mistakes, as I would enjoy learning through interaction.
truly
now I'm no lawyer and this isn't to be construed as legal advice, feel free to point to the mistakes, as I would enjoy learning through interaction.
truly Yes. Having their customers agree to the new specifications was a very important legal hurdle for BFL to surmount. Had they not done so, they would have been up a creek sans paddle so to speak. The problem is that BFL took payment in full for the pre-orders. Most companies do not charge your card for the full amount until they can ship you the product. They authorize the purchase, but do not complete it. BFL could not support credit cards to pre-order because CC companies frown on imaginary products being sold (they will yank your account and freeze your funds). That puts them into a very gray legal area. For instance, how do they account for those funds? They cannot be sales because they have not shipped the units. Do they collect sales tax? Do they escrow the funds? Are they using the funds for capital investments and/or development? Did they notify their customers that their pre-order funds would be used for these purposes and does that constitute a solicitation of investment?
so I see this a good old game of chase the point. . .
actually the process of getting their customers to agree was non-voluntary and in compliance with the legal guidelines established by the UCC (you can look that up I'm not your personal wikipedia
). not only was it proper, but legally necessary to continue the "implied" contract you are so fond of. also required by Missouri consumer protections. . . . .Most companies do charge pre-orders. . .otherwise it's called a reservation. . .just look up Duke Nukem' receipt on google images that poor bastard had a 11 y.o. pre-order receipt.