davidc11291
New Member
Yesterday, I bought 4 necklaces from an antique store. The necklaces are yellow and each one is stamped 14K. In the store I magnet tested each necklace and rubbed them with a file (to see if they were gold plated). The necklaces passed these preliminary tests for gold. I paid $700, then took them to 2 pawn shops where they could be acid tested. The necklaces were tested and have no gold content at all.
Mississippi doesn't require a contract to be written, and also provides for express warranty protection, stating in statute (Mississippi Code Title 75, Chapter 2) that-
"Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description........It is not necessary to the creation of an express warranty that the seller use formal words such as "warrant" or "guarantee" or that he have a specific intention to make a warranty."
With respect to implied warranty, statute states-
"(2) Goods to be merchantable must be at least such as
(a) pass without objection in the trade under the contract description; and
(c) are fit for the ordinary purposes for which such goods are used; and
(d) run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and
(e) are adequately contained, packaged, and labeled as the agreement may require; and
(f) conform to the promises or affirmations of fact made on the container or label if any.
(3) Other implied warranties may arise from course of dealing or usage of trade.
....Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is an implied warranty that the goods shall be fit for such purpose."
Furthermore-
"(1) Where the contract requires payment before inspection nonconformity of the goods does not excuse the buyer from so making payment unless........
(2) Payment pursuant to subsection (1) does not constitute an acceptance of goods or impair the buyer's right to inspect or any of his remedies."
Statute also states-
"if the goods or the tender of delivery fail in any respect to conform to the contract, the buyer may
(a) reject the whole; or
(b) accept the whole"
Furthermore-
"(1) Rejection of goods must be within a reasonable time after their delivery or tender. It is ineffective unless the buyer seasonably notifies the seller......
(2)(b) if the buyer has before rejection taken physical possession of goods in which he does not have a security interest under the provisions of this chapter, he is under a duty after rejection to hold them with reasonable care at the seller's disposition for a time sufficient to permit the seller to remove them; but...."
So I have established
The seller has provided express and implied warranties based on labeling, merchantability based on quality, and fitness for a particular use.
The buyer has the right to reject goods that fail to conform to the contract
Payment and possession of goods does not establish acceptance of goods, and goods may be rejected after payment and physical possession of goods have occurred "if the goods fail to conform to the contract in any respect."
Sorry for all the long quotes of statute. Here's where it gets interesting, and here's where my real question lies. In the section of statute that deals with remedy, it is stated that
"(1) Where the buyer has accepted goods and given notification he may recover as damages for any nonconformity of tender the loss resulting in the ordinary course of events from the seller's breach as determined in any manner which is reasonable.
(2) The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.
(1) Specific performance may be decreed where the goods are unique or in other proper circumstances.
(2) The decree for specific performance may include such terms and conditions as to payment of the price, damages, or other relief as the court may deem just.
(3) The buyer has a right of replevin for goods identified to the contract if after reasonable effort he is unable to effect cover for such goods or the circumstances reasonably indicate that such effort will be unavailing or if the goods have been shipped under reservation and satisfaction of the security interest in them has been made or tendered. In the case of goods bought for personal, family, or household purposes, the buyer's right of replevin vests upon acquisition of a special property, even if the seller had not then repudiated or failed to deliver.
Remedies for material misrepresentation or fraud include all remedies available under this chapter for nonfraudulent breach. Neither rescission or a claim for rescission of the contract for sale nor rejection or return of the goods shall bar or be deemed inconsistent with a claim for damages or other remedy.
(2) The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.
Whenever the prevailing price or value of any goods regularly bought and sold in any established commodity market is in issue, reports in official publications or trade journals or in newspapers or periodicals of general circulation published as the reports of such market shall be admissible in evidence.
My specific question is one of damages calculation. I paid $700 for 4 necklaces with a total weight of 4.66 troy ounces. Based on the prevailing price of scrap gold at the time of purchase, the necklaces would have had a value of $4,760. I bought these necklaces simply because of the value of scrap gold.
Based on the above bold statement, specifically that "The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted" and the statement concerning the admissibility of "the prevailing price or value of any goods regularly bought and sold in any established commodity market" am I entitled to damages of $4,760, even though my purchase price was $700?
Reading this portion of the statute surprised me, and I'm wondering if in most cases a court would determine damages based on my purchase price, or if it actually wouldn't be uncommon for a court to award damages based on "difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount." I'm also curious how the line about "special circumstances show(ing) proximate damages of a different amount" would affect the determination of damages.
The determination of damages impact whether I need to seek relief with the assistance of an attorney in a traditional lawsuit or if I should pursue small claims court.
I realize that you are probably not an attorney in Mississippi, and are inexperienced in the specifics of Mississippi contract law, so I have made special effort to quote all relevant statutes from Mississippi Code Title 75, Chapter 2, for your general information, but not for your expert advice or counsel. I realize that any information you provide me is general opinion only, and may or may not be accurate.
Thank you very much for any help you can provide.
BTW, I have no legal education or training, whatsoever. I'm a paramedic, but the law has always fascinated me. If you find my legal research to be of a higher quality than normal, I would be very interested in advice on how to begin a career providing legal research services to attorneys.
Mississippi doesn't require a contract to be written, and also provides for express warranty protection, stating in statute (Mississippi Code Title 75, Chapter 2) that-
"Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description........It is not necessary to the creation of an express warranty that the seller use formal words such as "warrant" or "guarantee" or that he have a specific intention to make a warranty."
With respect to implied warranty, statute states-
"(2) Goods to be merchantable must be at least such as
(a) pass without objection in the trade under the contract description; and
(c) are fit for the ordinary purposes for which such goods are used; and
(d) run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and
(e) are adequately contained, packaged, and labeled as the agreement may require; and
(f) conform to the promises or affirmations of fact made on the container or label if any.
(3) Other implied warranties may arise from course of dealing or usage of trade.
....Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is an implied warranty that the goods shall be fit for such purpose."
Furthermore-
"(1) Where the contract requires payment before inspection nonconformity of the goods does not excuse the buyer from so making payment unless........
(2) Payment pursuant to subsection (1) does not constitute an acceptance of goods or impair the buyer's right to inspect or any of his remedies."
Statute also states-
"if the goods or the tender of delivery fail in any respect to conform to the contract, the buyer may
(a) reject the whole; or
(b) accept the whole"
Furthermore-
"(1) Rejection of goods must be within a reasonable time after their delivery or tender. It is ineffective unless the buyer seasonably notifies the seller......
(2)(b) if the buyer has before rejection taken physical possession of goods in which he does not have a security interest under the provisions of this chapter, he is under a duty after rejection to hold them with reasonable care at the seller's disposition for a time sufficient to permit the seller to remove them; but...."
So I have established
The seller has provided express and implied warranties based on labeling, merchantability based on quality, and fitness for a particular use.
The buyer has the right to reject goods that fail to conform to the contract
Payment and possession of goods does not establish acceptance of goods, and goods may be rejected after payment and physical possession of goods have occurred "if the goods fail to conform to the contract in any respect."
Sorry for all the long quotes of statute. Here's where it gets interesting, and here's where my real question lies. In the section of statute that deals with remedy, it is stated that
"(1) Where the buyer has accepted goods and given notification he may recover as damages for any nonconformity of tender the loss resulting in the ordinary course of events from the seller's breach as determined in any manner which is reasonable.
(2) The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.
(1) Specific performance may be decreed where the goods are unique or in other proper circumstances.
(2) The decree for specific performance may include such terms and conditions as to payment of the price, damages, or other relief as the court may deem just.
(3) The buyer has a right of replevin for goods identified to the contract if after reasonable effort he is unable to effect cover for such goods or the circumstances reasonably indicate that such effort will be unavailing or if the goods have been shipped under reservation and satisfaction of the security interest in them has been made or tendered. In the case of goods bought for personal, family, or household purposes, the buyer's right of replevin vests upon acquisition of a special property, even if the seller had not then repudiated or failed to deliver.
Remedies for material misrepresentation or fraud include all remedies available under this chapter for nonfraudulent breach. Neither rescission or a claim for rescission of the contract for sale nor rejection or return of the goods shall bar or be deemed inconsistent with a claim for damages or other remedy.
(2) The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.
Whenever the prevailing price or value of any goods regularly bought and sold in any established commodity market is in issue, reports in official publications or trade journals or in newspapers or periodicals of general circulation published as the reports of such market shall be admissible in evidence.
My specific question is one of damages calculation. I paid $700 for 4 necklaces with a total weight of 4.66 troy ounces. Based on the prevailing price of scrap gold at the time of purchase, the necklaces would have had a value of $4,760. I bought these necklaces simply because of the value of scrap gold.
Based on the above bold statement, specifically that "The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted" and the statement concerning the admissibility of "the prevailing price or value of any goods regularly bought and sold in any established commodity market" am I entitled to damages of $4,760, even though my purchase price was $700?
Reading this portion of the statute surprised me, and I'm wondering if in most cases a court would determine damages based on my purchase price, or if it actually wouldn't be uncommon for a court to award damages based on "difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount." I'm also curious how the line about "special circumstances show(ing) proximate damages of a different amount" would affect the determination of damages.
The determination of damages impact whether I need to seek relief with the assistance of an attorney in a traditional lawsuit or if I should pursue small claims court.
I realize that you are probably not an attorney in Mississippi, and are inexperienced in the specifics of Mississippi contract law, so I have made special effort to quote all relevant statutes from Mississippi Code Title 75, Chapter 2, for your general information, but not for your expert advice or counsel. I realize that any information you provide me is general opinion only, and may or may not be accurate.
Thank you very much for any help you can provide.
BTW, I have no legal education or training, whatsoever. I'm a paramedic, but the law has always fascinated me. If you find my legal research to be of a higher quality than normal, I would be very interested in advice on how to begin a career providing legal research services to attorneys.
