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post #13 of Old 06-02-2011 Thread Starter
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Thanks guys, I got the feedback I was looking for, these defects exceed the usual and customary.

Like I mentioned above, I don't look at issues such as this as "legal/contract" issues. It is a customer service question. Does the vendor want a customer who has done three charters in the past 14 months to be happy or to shop around for their next charter.

But since so many want to talk about contracts, and the law, and mitigation of damages, and opportunity to cure, and the like, I will quickly address those issues. Although I see them as completely irrelevant.

The following does not constitute legal advice. If you have a contract question, you should contact your own counsel.

A number of people want to examine the contract to see if it addresses these issues. Well, if I were putting on a lawyer hat, I would no doubt take a look at the contract. If I didn't like what it said, then I would fumble around in my law books and I might stumble upon the concept of "fraud in the inducement." If there was "fraud in the inducement" then what the contract says might not matter. So, what is "fraud in the inducement?" It is more than Puffery. We could spend 100s of pages exploring the distinction, but instead we will skip ahead and see if there are any facts that might be more than puffery and might rise to the level of "fraud in the inducement."

The boat was represented to be a certain age. In fact it was a tad bit older than represented.

The boat was represented to have been maintained "to rigorous standards." Res ipsa.

The boat was represented to have "freely accessible dingy davits." Literally true, but substantively false.

Talking like a lawyer here, I think those will get us past a motion to dismiss. Which gives us something to talk about.

What other tools might we have available? Well, there is "unfair and decptive practices" claims which we would base on the above facts. And then there are false advertising claims. I think we have enough to work around the contract.

Now that we have found our path to possible liability, we need to explore whether the vendor has a defense by the failure to provide an opportunity to cure. Someone proposed the analogy of a resturant meal that was fully consumed. Let's run with that for a minute. Suppose I am in trial and the judge granted us a 45 minute recess for lunch. I run down to the cafeteria and order a cheeseburger, french fries, and a coke. The french fries are frozen. I do not have time to wait for them to cook the french fries (I don't even have time to point out that they are frozen). I simply eat the cheeseburger drink the coke and throw the french fries away. Should I have to pay for the french fries?

I think a better example might be a chef who ordered prime tenderloin for Saturday night. His butcher sends over select meat. (For the benefit of non-U.S. readers, U.S. meat grades are Prime, Choice, Select.) There isn't time to send it back and get the prime meat. So the chef serves steak tartare using the select meat instead of filet mignon. Should the chef still have to pay for prime meat because he made do with the select meat?

Our analysis was that the cost (the value of our time) of affording the vendor an opportunity to cure would have exceeded the value of that cure (a working refrigerator). We, in effect, mitigated our damages. Should we still have to pay for "prime meat?"

In the real world, I am probably just as obnoxious. Occupational hazard.
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