About Fundamental Fairness

It is about fundamental fairness. Truth in advertising. Keeping a promise. If I promise something, and then I don't keep my promise, there should be consequences. Sometimes a promise is broken because its impossible to keep, external events interfere. But, maybe there should still be consequences for a broken promise, even if the breaking of it was unavoidable. Or maybe the breaking of that promise should just be forgiven. But, making a promise with no intention of keeping it? Isn't that simply unfair, deceptive?

If I advertise a car for sale at a certain price. And someone comes along and says, ok, I'll give you the price you're asking -- I have cash; can I then turn around and say, no I want more money than that? Or can I say, no I'm going to think about it. Is it ethical to advertise a price for a thing when you have no intention of accepting that amount? Is it legal?

Can I, as a seller, say to the wannabe buyer that I want to hold out for more money?

Can I, as a seller, say to the wannabe buyer, I'll let you know later whether I'll sell it to you and for what amount. And when later comes, I tell the wannabe buyer that now there are others offering me more money for the same car. So, I say to the wannabe buyer, what is your highest and best price? Is this legal and ethical?

What if I never had any intention of selling the car for the advertised price? Is that bait and switch?

Probably not, since no other car was being switched. But is it deceptive? I think so, The following is from the FTC website:

"WHAT MAKES AN ADVERTISEMENT DECEPTIVE?

According to the FTC's Deception Policy Statement, an ad is deceptive if it contains a statement - or omits information - that:

• Is likely to mislead consumers acting reasonably under the circumstances; and
• Is "material" - that is, important to a consumer's decision to buy or use the product.

Certain elements undergird all deception cases.

First, there must be a representation, omission or practice that is likely to mislead the consumer. Practices that have been found misleading or deceptive in specific cases include false oral or written representations, misleading price claims, sales of hazardous or systematically defective products or services without adequate disclosures, failure to disclose information regarding pyramid sales, use of bait and switch techniques, failure to perform promised services, and failure to meet warranty obligations.

Second, we examine the practice from the perspective of a consumer acting reasonably in the circumstances. If the representation or practice affects or is directed primarily to a particular group, the Commission examines reasonableness from the perspective of that group.

Third, the representation, omission, or practice must be a "material" one. The basic question is whether the act or practice is likely to affect the consumer's conduct or decision with regard to a product or service. If so, the practice is material, and consumer injury is likely, because consumers are likely to have chosen differently but for the deception. In many instances, materiality, and hence injury, can be presumed from the nature of the practice. In other instances, evidence of materiality may be necessary.

Thus, the Commission will find deception if there is a representation, omission or practice that is likely to mislead the consumer acting reasonably in the circumstances, to the consumer's detriment. 

The Commission also considers claims or omissions material if they significantly involve health, safety, or other areas with which the reasonable consumer would be concerned. Depending on the facts, information pertaining to the central characteristics of the product or service will be presumed material. Information has been found material where it concerns the purpose, safety, efficacy, or cost, of the product or service. Information is also likely to be material if it concerns durability, performance, warranties or quality. Information pertaining to a finding by another agency regarding the product may also be material."

I think that when a thing is offered for a certain price its a promise. Contract law is all about enforcing promises. I also think that offering a thing for sale at a certain price is a contract that can be enforced. Contract enforcement remedies include money damages and specific performance. And, contract law is surprisingly not as cut and dried as I thought. Many times, contract enforcement remedies are based on the intent of the parties and reasonableness.

I have always been mystified as to exactly how bidding wars for houses can happen. In general, a listing for a house for sale is treated as a request for offers. In general, people list a price for sale above what they are willing to accept and anticipate negotiations. But, if someone accepts the offer to sell without any attempt to negotiate the price or terms -- isn't the seller bound to honor their promise? Apparently not, at least in common practice in 2015. I maintain that legally, the offer to sell at a set price is just that - an offer. And a buyer's acceptance of that price and terms is acceptance.

All real estate contracts must be in writing, as per the Statute of Frauds. And, in my scenario, this is also the case. The first writing is the offer to sell, which is the MLS listing for sale at a certain price, the property and terms described with specificity. In my theory, this itself is a unilateral contract. So, if someone comes along when there is no other offer pending, and accepts the offer to sell; and agrees to price and terms; it then becomes a bilateral contract. And is enforceable.

I have had realtors, a real estate broker, a worker at Fannie Mae, and various individuals tell me that I am wrong. That my thinking is muddled, that I don't know how things work, and more or less that I'm an idiot. I also asked a real estate attorney, who, to his credit, said "I don't know". I keep asking the same question.

If someone offers a property for sale, and I say ok, I'll buy that property for that amount with cash and no contingencies -- doesn't the seller have to sell it to me for that amount and for those terms? After all, it was the seller's idea in the first place, not mine. He was the one offering (promising) to sell.

On three different occasions, what I thought should have been a contract has suddenly turned into a bidding war. On all three occasions, we offered full price with no contingencies. And, on all three occasions, the seller did not accept our "offer", but instead let us know that we should now submit our highest and best bid. I continue to maintain that this practice is unethical and probably illegal. I further believe that if I sued the seller, the suit would be based on breach of contract, and that as a remedy I would request specific performance. So that the court might then order the seller to sell us the house.

My detractors have told me, that there is no contract in my scenario. I beg to differ. A contract is a promise, the initial promise, the contract occurred when the seller offered the property for sale and I accepted the offer for sale.

The broker, in the most patronizing manner possible, told me that the seller is doing us a favor by allowing us to submit our highest and best offer. What????

And the entire Greek chorus of my detractors has told me that no one can make someone sell their property. Again, I beg to differ. I rely on a case that I expect is taught in law school - Lucy v Zehmer.

Lucy is a 1954 Virginia Supreme Court case in which Mr. and Mrs. Zehmer and Mr. and Mrs. Lucy were at a bar. The Zehmers told the Lucys that they would sell them their 400+ acre farm for $50,000. and proceeded to write the price and terms on a cocktail napkin.

Zehmer subsequently refused to go through with the sale, alternately claiming that he was drunk and that he was joking. Following is an excerpt from that case:

"If it be assumed, contrary to what we think the evidence shows, that Zehmer was jesting about selling his farm to Lucy and that the transaction was intended by him to be a joke, nevertheless the evidence shows that Lucy did not so understand it but considered it to be a serious business transaction and the contract to be binding on the Zehmers as well as on himself. The very next day he arranged with his brother to put up half the money and take a half interest in the land. The day after that he employed an attorney to examine the title. The next night, Tuesday, he was back at Zehmer's place and there Zehmer told him for the first time, Lucy said, that he wasn't going to sell and he told Zehmer "You know you sold that place fair and square." After receiving the report from his attorney that the title was good he wrote to Zehmer that he was ready to close the deal.

Not only did Lucy actually believe, but the evidence shows he was warranted in believing, that the contract represented a serious business transaction and a good faith sale and purchase of the farm."

Like Lucy, not only do I actually believe someone will sell a house for the promised price, I believe the promise is enforceable. The holding in Lucy was that the contract was enforced, and the farm was sold as agreed.

We ARE Disruptors

We are disruptors, and - yes - proud of it. I am happy that we disrupt the status quo. I am happy that we present an alternative to consumers. If the legal world had properly served consumers, we would not exist. Legal document preparers are here to stay. We have a foothold. Around 70% of family law litigants are pro se -- self represented. Many of the self-represented employ legal document preparers to prepare their paperwork. Some of them cannot possibly afford an attorney. Others have no desire to retain an attorney. And still others have no need for an attorney.

If, we legal document preparers, present a viable alternative for consumers - then why not? Consumers who cannot afford an attorney are not lost clients for attorneys - it was never possible for them to be attorneys' clients at all. Price being the governing factor. It makes no sense for Mercedes Benz to be upset with Kia for stealing their customers. Not the same customer, not the same demographic.

Some consumers can well afford an attorney but choose not to retain counsel. They either feel that they can easily handle their legal affairs themselves, or feel that an attorney will cause them to spend money needlessly.

Still other consumers do not need an attorney at all. They only need papers. They only need documents prepared; they are well aware of their rights and issues; and there is no legal dispute. Many of these consumers realize that if they retained counsel, it is quite possible that an attorney could create a dispute where none existed before. No dispute = no billable hours.

I have no goal to malign attorneys. They don't need my help in discrediting their profession. The numbers speak for themselves. Since 70% of family law litigants are attorney free - one can only surmise that a fair percentage of them could afford counsel if they chose.

I, as a legal document preparer, receive some attorney referrals. One of the attorneys who refers to me [we'll call him John] has done so for the past several years and I am rarely able to reciprocate, as he really only wants family law mediation clients. And I rarely have this type of customer to refer. I can only say Thank You. I suppose John refers to me because in his opinion the consumer is better off paying my lower fee and spending their money to take care of their children; rather than paying his fee and their having to stretch financially to pay it. In all these years, only once has there been a problem. The soon to be ex disputed jurisdiction for the divorce as the couple still had marital property in another state. I referred her back to John, then she came back and asked me to prepare a voluntary motion to dismiss. Which I did at no cost.

Even more than I appreciate the compensation John's referrals bring, I appreciate the respect he gives me by sending his clients my way.

On the other hand, I recently severed ties with an attorney, we'll call her Mary. She and I had an arrangement in which she would offer my customers a low cost consultation; and then in theory send them back to me for document preparation. No one ever came back. It was a legal Bermuda Triangle. She had presented herself to me as an advocate for pro se litigants and a friend to Florida document preparers. Although it took me a while to catch on, the truth came out. Beware the wolf in sheep's clothing. I was blind sided, and I have yet to forgive myself for that. She displays the following on her site:

" ... many people are opting to use document preparers who can complete divorce forms at low cost, affordable rates. And while this is an attractive option, most document preparers have little or no legal training or experience outside of document preparation. ..."

That statement isn't particularly true. Most document preparers have extensive experience and academic training, including B.A. degrees in Legal Studies; paralegal certificates; years of law firm experience; JD degrees; law degrees from other states or countries; and lots of hands on experience. A few document preparers are self taught - graduates of the school of hard knocks.

The first big difference between John and Scarey Mary is that John wants to serve the consumer; while Mary wants to serve herself. The second difference is that John is established in his profession; while Mary is competing with nonlawyer lay practitioners. As a consumer, that in itself would be enough to scare me away from Mary. Did she, and other attorneys of her ilk, really go to law school to learn how to fill out forms. Scarey. Mary.