Tim
Valparaiso,#2Consumer Comment
Wed, December 15, 2004
I don't want to sound condescending here, William, and I surely hope that grandma ends up with a machine suited to her needs. I would just like to correct a couple of contract points. First, it seems to me that this is more a failure to comply with the "perfect tender rule" than a "meeting of the minds" issue. Meeting of the minds seems present as both parties intended to contract, albeit possibly for different things. You might also have a claim of mutual or unilateral mistake, but mistake defenses are tough. The perfect tender rule requires that the seller deliver exactly the goods contracted for. If your assertion that what was delivered was something different than what was contracted for is correct, then they have failed to tender perfectly conforming goods. The only problem with this is that some time has passed since she received the wrong machine, and the law may imply acceptance of the non-conforming good. Also, "warranty of fitness for a particular purpose" would be a better argument than "warranty of merchantability." If the product delivered does what IT is supposed to do, then it is merchantible. The problem here, however, is not that the product sent is defective, but that it is incapable of meeting your grandmother's needs. If the seller knew of your grandmother's particular needs, and set a machine with that understanding, which subsequently failed to meet those needs, then it is likely that 1) a warranty of fitness for a particular purpose was given and 2) that it was breeched. To illustrate, let's say that I go to a sporting goods store and ask for a tent that can fit ten people. They give me a quality tent made for eight people. If the tent can fit eight people, it is merchantible because it does what it is supposed to do. However, the seller had notice of my particular need, and gave me a product that was supposed to fit that need. He has simaltaneously created and breeched a warranty of fitness for a particular purpose. Again, here you may be plagued by the fact that Grandma has been in possesion of this machine for so long. But, if you made reasonable attempts to have it replaced with the correct machine, you're probably in the clear. If you have done everything you're supposed to do, and they have stifled your efforts, you should end up pretty well. One last thing: the law has never heard of the word "always," and there is virtually nothing that "any judge" would do. Best of luck!