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Downpayment NOT returned. No contract

Discussion in 'Car Sales, Dealers, Repairs, Lemon Law' started by adam1234, Oct 11, 2019.

  1. adam1234

    adam1234 Law Topic Starter New Member

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    Hi! My name is Adam, I have a pretty straight forward situation on my hands, but I wanted to get some more opinions, and possibly some legal advise on it.

    I was going to buy a food trailer from a private seller. $60,000 was the asking price. He said there was other parties seriously interested and needs a deposit to hold it for me. So we verbally agreed to $2000 and he would not sell it to anyone els. We had a couple things happen in our life that made us have to wait to get the rest of the payment for the trailer. 1 month went by, and we decided that we don’t want the trailer. So I asked the seller for half of the deposit back $1000. He won’t respond to me. I am wondering if I can sue them in small claims court since there was no written contract. Thanks!
     
  2. army judge

    army judge Super Moderator

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    Yes, you can sue anyone you wsh in small claims court.

    I hope you have the PROOF you gave the $2K to the seller by a RECEIPT, cancelled check, purchase contract, or other written instrument.

    That might make it easier for you to prevail.

    If you only have you said, dude said, no proof of money exchanging hands; that'll make it harder.

    However, suing is easy.

    Collecting is almost impossible, because the court won't help you collect your judgment should you prevail.

    Good luck, citizen.
     
  3. zddoodah

    zddoodah Well-Known Member

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    Anyone can sue anyone for anything, but I think you'd be unlikely to win here. You paid $2k in exchange for the seller's agreement not to sell the item to someone else. After a month passed, you elected not to proceed with the deal, so the seller keeps the deposit as compensation for having to retain the item for an extra month and possibly having lost out on other opportunities to sell. What would make you think you should get any of your deposit back?
     
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  4. mightymoose

    mightymoose Moderator

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    If the seller turned away other buyers while holding the trailer for you then you are unlikely to get a refund. A month was a long time to wait.

    You can certainly sue though, and let a judge decide what is fair.
     
  5. adjusterjack

    adjusterjack Super Moderator

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    You don't have to sign a contract to have a contract. And you, Adam, have an enforceable oral contract to buy that trailer for $60,000.

    The ND Statute of Frauds lists certain types of contracts that aren't enforceable:

    9-06-04. Contracts invalid unless in writing - Statute of frauds.
    The following contracts are invalid, unless the same or some note or memorandum thereof is in writing and subscribed by the party to be charged, or by the party's agent:
    1. An agreement that by its terms is not to be performed within a year from the making thereof.
    2. A special promise to answer for the debt, default, or miscarriage of another, except in the cases provided for in section 22-01-05.
    3. An agreement for the leasing for a longer period than one year, or for the sale, of real property, or of an interest therein. Such agreement, if made by an agent of the party sought to be charged, is invalid unless the authority of the agent is in writing subscribed by the party sought to be charged.
    4. An agreement or promise for the lending of money or the extension of credit in an aggregate amount of twenty-five thousand dollars or greater.
    5. An agreement or promise to alter the terms of repayment or forgiveness of a debt that is in an aggregate amount of twenty-five thousand dollars or greater.

    https://www.legis.nd.gov/cencode/t09c06.pdf

    Your contract is not on that list so it is, indeed, enforceable.





     
  6. zddoodah

    zddoodah Well-Known Member

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    You overlooked section 41-02-08(1) (part of the Uniform Commercial Code* as adopted in North Dakota): "Except as otherwise provided in this section, a contract for the sale of goods for the
    price of five hundred dollars 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 or by that party's authorized agent or broker."

    Thus, while the verbal contract by which the OP agreed to buy this food trailer for $60k likely wouldn't be enforceable, that's largely beside the point as it relates to the OP's inquiry. The inquiry is whether the OP is entitled to the return of any or all of the deposit he/she gave. In the absence of any sort of explanation from the OP, I can think of no reason to believe it is.

    * - The Uniform Commercial Code has been adopted (with various alterations) as law in every state in Louisiana (and Louisiana may even have a law of similar effect).
     

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