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  • "You Break It, You Buy It" policies - validity of

    I was in an art gallery the other day, and I noticed that in some but
    not all of the rooms (and not at/in the entryway or first room,
    either) there were the typical "if you damage an item, we regret that
    we will have to charge you the full purchase price plus sales tax"
    signs.

    Just how enforceable are they? IANAL, but:
    * What consideration have I received that would go towards
    making these signs a binding contract?
    * There's no language saying anything like
    "your continued presence in the gallery constitutes
    acceptance of these terms", so again, how does the
    sign bind me?
    * What happens if I break something before I come to
    a room where one of these signs is posted, anyway?

    I'm sure you guys can think of a ton of other similar things :-)

    And no, I did not break anything. :-) But seriously, I was
    wondering about whether or not these signs accomplish anything
    aside from hoping to intimidate people into being more careful
    and possibly intimidating someone into accepting a responsibility
    they did not(?) legally have.

    --
    Rich Carreiro [email protected]



  • #2
    "You Break It, You Buy It" policies - validity of

    On Mon, 29 Dec 2003 13:49:21 -0500, Rich Carreiro
    <[email protected]> wrote:
    I was in an art gallery the other day, and I noticed that in some but not all of the rooms (and not at/in the entryway or first room, either) there were the typical "if you damage an item, we regret that we will have to charge you the full purchase price plus sales tax" signs. Just how enforceable are they? IANAL, but: * What consideration have I received that would go towards making these signs a binding contract? * There's no language saying anything like "your continued presence in the gallery constitutes acceptance of these terms", so again, how does the sign bind me?
    I guess they are going to give you the broken item. They argument
    would be that you accept the contract when you break the item.
    * What happens if I break something before I come to a room where one of these signs is posted, anyway?
    Would you have been negligent? In that case you can consider the sign to
    be an offer to settle.

    Isaac

    Comment


    • #3
      &quot;You Break It, You Buy It&quot; policies - validity of

      In article <[email protected]> in
      misc.legal.moderated, Rich Carreiro wrote:
      I was in an art gallery the other day, and I noticed that in some butnot all of the rooms (and not at/in the entryway or first room,either) there were the typical "if you damage an item, we regret thatwe will have to charge you the full purchase price plus sales tax"signs.Just how enforceable are they? IANAL, but:* What consideration have I received that would go towards making these signs a binding contract?
      I don't think the signs, as such, are enforceable -- because to a
      large extent they restate what is true at common law. If you
      negligently damage the property of another, you must pay the amount
      of the loss.

      The question that the signs prejudge, and which may not be correct,
      is the amount of the owner's loss. It must be the amount the owner
      paid, plus the owner's reasonable expectation of profit. That may or
      may not be the difference between owner's cost and asking price,
      depending on how much "haggling" is customary for ordinary
      purchases. I don't know about sales tax, since compensating the
      owner for a loss caused by your carelessness wouldn't be a "sale".

      Suppose you refuse to pay for a $4000 china figurine that the owner
      paid $1000 for? The owner will take you to court. The owner will
      have to show that you broke it, that it wasn't placed where a
      careful person would have broken it, and the amount of the owner's
      loss. The judge would probably award the owner something between
      $1000 and $4000, figuring that the owner would have been unlikely to
      get a 300% profit any time soon.

      What are the signs for? Most people figure they have to do what a
      sign says. So by having the signs posted, the owner resolves most
      incidents of breakage quickly and at the full sale price. But if you
      broke something, it would be possible (and prudent) to offer less
      than the full asking price in settlement. If it got to court, it
      couldn't hurt to say "Judge, I admitted breaking this thingamabob,
      and I offered $2500 right away which was the owner's cost plus a
      profit. After all, there's no telling how long it might have sat on
      the shelf unsold if I hadn't broken it. I'm prepared to pay for my
      clumsiness, but I don't think I should have to pay the full asking
      price because it could well have sold for a lower price."

      --
      If you e-mail me from a fake address, your fingers will drop off.

      I am not a lawyer; this is not legal advice. When you read anything
      legal on the net, always verify it on your own, in light of your
      particular circumstances. You may also need to consult a lawyer.

      Stan Brown, Oak Road Systems, Cortland County, New York, USA
      http://OakRoadSystems.com

      Comment


      • #4
        &quot;You Break It, You Buy It&quot; policies - validity of

        Rich Carreiro <[email protected]> wrote in message
        news:<[email protected]>. ..
        I was in an art gallery the other day, and I noticed that in some but not all of the rooms (and not at/in the entryway or first room, either) there were the typical "if you damage an item, we regret that we will have to charge you the full purchase price plus sales tax" signs. Just how enforceable are they?
        [snip]

        One informal but well-thought-out opinion that these policies are
        widely thought to be enforceable but in reality unenforceable, both
        legally and practically:

        http://www.sunshineartist.com/magazine/sellerbeware.htm

        The general argument is that if a merchant displays goods in a way
        that encourages customers to touch or handle them, he has no recourse
        against customers who do what he invited them to do, even if they do
        so clumsily.

        --
        Not a lawyer,

        Chris Green

        Comment


        • #5
          &quot;You Break It, You Buy It&quot; policies - validity of

          Rich Carreiro <[email protected]> wrote:
          I was in an art gallery the other day, and I noticed that in some but not all of the rooms (and not at/in the entryway or first room, either) there were the typical "if you damage an item, we regret that we will have to charge you the full purchase price plus sales tax" signs. Just how enforceable are they?
          If you are in the shop, see the signs and then damage the goods, it
          appears that you have accepted their offer to purchase the product.
          IANAL, but: * What consideration have I received that would go towards making these signs a binding contract?
          You bought it. How's that for consideration?

          In addition to that, you have damaged someone else's property. For
          that alone you'd be liable for damages unless you show that you were
          not negligent.
          And no, I did not break anything. :-) But seriously, I was wondering about whether or not these signs accomplish anything aside from hoping to intimidate people into being more careful and possibly intimidating someone into accepting a responsibility they did not(?) legally have.
          I haven't seen a case dealing with these signs specifically. But I
          had a client that was an art gallery, that had signes on the walls
          that said that property that was purchased could only be returned
          for 30 days.

          They were sued when someone bought a painting, held on to it for
          months and then decided that he wanted to return it. The gallery
          told him they'd sell if for him, but they wouldn't simply take it
          back and refund his money. The buyer sued, and lost. The judge
          found the signs very significant.

          Stu

          Comment


          • #6
            &quot;You Break It, You Buy It&quot; policies - validity of

            RC> I was in an art gallery the other day, and I noticed that in some
            RC> but not all of the rooms (and not at/in the entryway or first
            RC> room, either) there were the typical "if you damage an item, we
            RC> regret that we will have to charge you the full purchase price
            RC> plus sales tax" signs.

            RC> Just how enforceable are they?

            I'm not a lawyer, but I think that they might have a merit if they were not
            insured, and what you broke was their loss. But I hardly imagine gallery
            items w/o insurance.

            Most likely, they wouldn't be able to even stop you to find out whom to
            charge.

            Comment


            • #7
              &quot;You Break It, You Buy It&quot; policies - validity of

              Rich Carreiro <[email protected]> wrote in message
              news:<[email protected]>. ..
              I was in an art gallery the other day, and I noticed that in some but not all of the rooms (and not at/in the entryway or first room, either) there were the typical "if you damage an item, we regret that we will have to charge you the full purchase price plus sales tax" signs. Just how enforceable are they? IANAL, but: * What consideration have I received that would go towards making these signs a binding contract? * There's no language saying anything like "your continued presence in the gallery constitutes acceptance of these terms", so again, how does the sign bind me? * What happens if I break something before I come to a room where one of these signs is posted, anyway?
              Note: I am not a lawyer. This is not legal advice.

              I think that you are using contract law to analyse these signs, and
              I think that is a mistake. The sign is not attempting to create
              a contract, it is just informing you of something that is already
              true.

              If you break something, you need to pay for it. This is true
              if there is a sign there or not. The purpose of the sign is to
              remind you, and raise the chances that you will actually pay.

              If you break a window of my car; I can sue you for the money
              to fix the window. I don't need a sign that says "people breaking
              this window will pay for it". Breaking stuff in a store is no
              different.

              Joshua Levy

              Comment


              • #8
                &quot;You Break It, You Buy It&quot; policies - validity of

                On Tue, 30 Dec 2003 16:15:59 -0500, Christopher Green
                <[email protected]> wrote:
                Rich Carreiro <[email protected]> wrote in message news:<[email protected]>. ..
                I was in an art gallery the other day, and I noticed that in some but not all of the rooms (and not at/in the entryway or first room, either) there were the typical "if you damage an item, we regret that we will have to charge you the full purchase price plus sales tax" signs. Just how enforceable are they?
                [snip] One informal but well-thought-out opinion that these policies are widely thought to be enforceable but in reality unenforceable, both legally and practically: http://www.sunshineartist.com/magazine/sellerbeware.htm The general argument is that if a merchant displays goods in a way that encourages customers to touch or handle them, he has no recourse against customers who do what he invited them to do, even if they do so clumsily.
                I didn't see significant legal arguments in that article. The gist
                was that the the merchant might find it difficult to prove negligence,
                that it would not promote goodwill to sue customers, and that the
                customers could probably run out of the store before you caught
                them. I wouldn't recommend relying on that article other than as
                a cautionary tale for merchants.

                Isaac

                Comment


                • #9
                  &quot;You Break It, You Buy It&quot; policies - validity of

                  In article <[email protected]> in
                  misc.legal.moderated, bat wrote:
                  I'm not a lawyer, but I think that they might have a merit if they were notinsured, and what you broke was their loss. But I hardly imagine galleryitems w/o insurance.
                  Insurance never has anything to do with who is liable. If you break
                  something, you are liable for it whether or not the owner is
                  insured. The difference is that if _you_ have insurance and break
                  something, _your_ insurance may pay for it. But the liability
                  legally is still yours.

                  (This is subject to the interesting article Chris Green cited in
                  this thread, suggesting that the customer is not liable for
                  breakage, in certain states anyway, unless it was deliberate. But
                  again, the presence or absence of insurance is irrelevant.)

                  --
                  If you e-mail me from a fake address, your fingers will drop off.

                  I am not a lawyer; this is not legal advice. When you read anything
                  legal on the net, always verify it on your own, in light of your
                  particular circumstances. You may also need to consult a lawyer.

                  Stan Brown, Oak Road Systems, Cortland County, New York, USA
                  http://OakRoadSystems.com

                  Comment


                  • #10
                    &quot;You Break It, You Buy It&quot; policies - validity of

                    Rich Carreiro <[email protected]> wrote:
                    I was in an art gallery the other day, and I noticed that in some butnot all of the rooms (and not at/in the entryway or first room,either) there were the typical "if you damage an item, we regret thatwe will have to charge you the full purchase price plus sales tax"signs.Just how enforceable are they? IANAL, but:* What consideration have I received that would go towards making these signs a binding contract?
                    Probably none in this case. If it were at the door, it _might_ be
                    that allowing you to enter was "consideration", but under the
                    circumstances I doubt it.
                    * There's no language saying anything like "your continued presence in the gallery constitutes acceptance of these terms", so again, how does the sign bind me?
                    See above.
                    * What happens if I break something before I come to a room where one of these signs is posted, anyway?
                    Probably the same thing that would happen if you broke something in a
                    room where the sign is posted. They'll try to intimidate you into
                    paying for it.

                    But legally I suspect that standard negligence rules apply.

                    In this case the title rests with the gallery (or the original
                    artists/previous owner if "on consignment"), so the "risk of loss"
                    also rests with them.

                    But if the breakage results from your carelessness, then you would
                    be liable under negligence theory, regardless of whether the sign was
                    there or not.
                    And no, I did not break anything. :-) But seriously, I waswondering about whether or not these signs accomplish anythingaside from hoping to intimidate people into being more carefuland possibly intimidating someone into accepting a responsibilitythey did not(?) legally have.
                    I think that they are just a reminder that if you pick something up
                    and break it, you are _probably_ negligent and would have to pay for
                    it. I have my doubts about the sales tax. If you are liable under
                    negligence, it's only for their loss which probably doesn't include
                    tax. In fact, it's probably less than the listed price of the item.
                    After all, their actual loss is what they paid for the item, plus
                    something for the "cost of money" since then and for giving it
                    shelf/wall space. At least, that's what I'd argue if somebody tried
                    to get me to pay for something on that basis. I bet we'd end up with
                    something in between.

                    And if the breakage really isn't due to your negligence, you probably
                    wouldn't be liable at all. Frex, if you pick something up because
                    there is a detail not visible when it's on the shelf, and a gallery
                    employee jostles you and you drop it, that's arguably not negligence
                    on your part.

                    But in general, if you want a closer look at something, you are
                    well-advised to ask an employee of the place to show it to you. Then
                    you won't have to argue with them if something bad happens.


                    --
                    I pledge allegiance to the Constitution of the United States of America, and
                    to the republic which it established, one nation from many peoples, promising
                    liberty and justice for all.

                    Comment


                    • #11
                      &quot;You Break It, You Buy It&quot; policies - validity of



                      On Tue, 30 Dec 2003 16:16:04 -0500, "Stuart O. Bronstein"

                      <[email protected]> wrote:


                      IANAL, but:
                      * What consideration have I received that would go towards
                      making these signs a binding contract?

                      You bought it. How's that for consideration?

                      In addition to that, you have damaged someone else's property. For
                      that alone you'd be liable for damages unless you show that you were
                      not negligent.


                      Surely Stuart it is the other way round. The shop owner would have to

                      show that the customer was either negligent, or that they deliberately

                      damaged the goods in malice, for any claim to succeed.



                      --

                      Bob.



                      The facts expressed here belong to everybody, the opinions to me. The

                      distinction is yours to draw...

                      ..

                      Comment


                      • #12
                        &quot;You Break It, You Buy It&quot; policies - validity of

                        SB> Insurance never has anything to do with who is liable.

                        I meant that it's very likely that the owner of the gallery and/or the
                        artist has insured the items, and the coverage includes accidental damage,
                        including the damage made by the visitors, and they would collect it later,
                        after the visitor had been charged full price.

                        The article referred by Chris Green mentioned that one of the views on the
                        subject is that the gallery owner assumes the risk by displaying the items
                        to the public, allowing to touch them, etc. If such a risk exists, most
                        likely there are insurance policies covering it. I googled "gallery
                        insurance", and got quite a number of results.

                        For instance, the discussion at http://www.potters.org/subject55088.htm
                        shows that artists' expectations of the coverage by their insurance in case
                        of damage by a visitor is pretty much general practice. Not only the gallery
                        may have the insurance, but the artist as well. In that light, paying the
                        full sticker price right at the spot appears somewhat naive.

                        Comment


                        • #13
                          &quot;You Break It, You Buy It&quot; policies - validity of

                          In article <[email protected]>,
                          bat <[email protected]> wrote:
                          SB> Insurance never has anything to do with who is liable.I meant that it's very likely that the owner of the gallery and/or theartist has insured the items, and the coverage includes accidental damage,including the damage made by the visitors, and they would collect it later,after the visitor had been charged full price.
                          That would be fraud (against their insurance company).

                          Seth

                          Comment


                          • #14
                            &quot;You Break It, You Buy It&quot; policies - validity of

                            On Sat, 03 Jan 2004 13:42:36 -0500, bat <[email protected]> wrote:
                            SB> Insurance never has anything to do with who is liable. I meant that it's very likely that the owner of the gallery and/or the artist has insured the items, and the coverage includes accidental damage, including the damage made by the visitors, and they would collect it later, after the visitor had been charged full price.
                            Filing an insurance claim on something that you sold would be fraud.

                            Isaac

                            Comment


                            • #15
                              &quot;You Break It, You Buy It&quot; policies - validity of


                              "Joshua Levy" <[email protected]> wrote in message
                              news:[email protected]
                              Rich Carreiro <[email protected]> wrote in message news:<[email protected]>. ..
                              I was in an art gallery the other day, and I noticed that in some but not all of the rooms (and not at/in the entryway or first room, either) there were the typical "if you damage an item, we regret that we will have to charge you the full purchase price plus sales tax" signs. Just how enforceable are they? IANAL, but: * What consideration have I received that would go towards making these signs a binding contract? * There's no language saying anything like "your continued presence in the gallery constitutes acceptance of these terms", so again, how does the sign bind me? * What happens if I break something before I come to a room where one of these signs is posted, anyway?
                              Note: I am not a lawyer. This is not legal advice. I think that you are using contract law to analyse these signs, and I think that is a mistake. The sign is not attempting to create a contract, it is just informing you of something that is already true.
                              In that case, it is an attempt to mislead. A sign that says "if you
                              negligently break the display goods we will require you to pay for the
                              damage" would be legally accurate. A sign that says "if you break the goods
                              you must buy them at the price displayed" (ie including a profit element)
                              cannot be true unless it purports to be a contract whereby the customer
                              assumes a greater liability in consideration for being allowed the privilege
                              of shopping in that store. And in English law (possibly not the same in all
                              jurisdictions) you cannot unilaterally impose such a contractual term. Or
                              probably not.

                              The goods might be on an overcrowded shelf in an area where lots of
                              customers are moving about, and they might break without any negligence on
                              the part of any customer.
                              If you break something, you need to pay for it. This is true if there is a sign there or not. The purpose of the sign is to remind you, and raise the chances that you will actually pay. If you break a window of my car; I can sue you for the money to fix the window. I don't need a sign that says "people breaking this window will pay for it". Breaking stuff in a store is no different.
                              The difference is the likelihood of an accidental breakage. If you invited
                              people to examine your car with a view to buying it, and one of the door
                              handles that you had previously fixed with glue suddenly came off in
                              someone's hand, would you think it reasonable to make them pay for the
                              damage? Presumably not.


                              Comment

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