Urban Art Association

I am a lawyer! and it didn't help my correspondence with Dora one bit!

In short, POW's posting is known as an invitation to treat and when we purchase a print from their site, what we are actually doing is making an offer for the print which they can then accept and will be subject to POWs conditions.

Online contracts or "click wrap" contracts are notoriously complex but POW know that even if there was a point to dispute they are bigger and richer then most or indeed any of us and it just wouldn't be worth litigating!

My understanding is POW should comply with the 'distance selling regulations' and it may be worth reading them to see if their T&C's cover them for breaking a contract once you proceed to purchase a print.

typing too slow Si

chickenpox, ooooh, poor mite, hope he's on the mend, tell him it could be worse i had a broken arm when i had chicken pox and was in plaster, the itching drove me insane until my mum gave me a knitting needle for the job....bliss

not a recent episode i was 7 at the time

What Daz said, pretty much exactly!

although as far as destroying reputation - irrelivant if they still have Banksy IMO. its all about Mr B!!!

they have alot money from this in their accounts in someway they will be profiting from it

Lets face it POW isn't scheming ways to break the law or beat the system for profit by holding money for prints etc they can do as much business as they want or feel they can. With GIWTBB and Trolley I think a lot of delays come from the artists and getting all the prints signed etc. Shipping and paperwork refunds communicating back and forth with disgruntled people who for f**ked by Protx like me.... I also think that the delay may also give them a little bit of time to do some cleanup on the Trolley resale market. But in the end I don't see any reason for POW to delay for a couple of grand worth of interest. I mean why not just sell some more back door Banksy's ;D

I do think it's a bit much selling prints before you've even got them, but didn't pow admit during all the fake print business that they knew about members of staff selling prints on ebay?

If so i find it quite amusing that they are still going on about other people selling on ebay!

Guys, without intending any disrepect to anybody it is important to realise that there is so much more to contract law than offer and acceptance. The point has been made that ownership is distinct from possession (and indeed risk) which is correct. Normally ownership passes when the parties intend it to. Generally this is extremely unhelpful as the seller is only interested in when he gets paid and the buyer only interested in when he gets possession, as such these two factors are normally considered but nobody bothers to stop and consider when legal ownership transfers. As risk passes with ownership this can be vital when goods are damaged in transit or whilst in a warehouse awaiting dispatch; are they still the seller's property as they have not been delivered to the buyer or are they the buyer's property as he has made payment for them? This can be a vital and often very difficult question to answer when the contracts are not as well drafted as they should be.

However, whilst this can be a big problem in commercial contracts private buyers are helped out by consumer legislation. S.20(4) of the Sale of Goods Act ensures that where the buyer acts as a consumer property (ie ownership) does not pass until safe delivery to the buyer. As such legal ownership in the print remains with POW until it is delivered to you. If it did not then you would have no legal right of complaint if it arrived damaged as it would have been at your risk during transit.

However, just because they retain ownership until delivery does not mean that they are not legally obliged to deliver the goods to you. This is the real question here - once you have made your payment and this has been accepted, are they obliged to send the print to you or can they rely on the term that says they can refund for any reason prior to dispatch? I'm not convinced that they could rely on this clause, it flies in the face of the general principle that you cannot seek to control what somebody can do with the goods once they are delivered. Whilst ethically I totally agree with POW's intentions, legally you either sell the prints or you don't - you can't sell them and then seek to restrict what the buyer can do with them. If this is the main aim of this clause (which I guess is arguable) then I have a suspicion that it would not be upheld as it may constitute an unfair contract term. However the beauty of the law is that there is never any right or wrong answer - I argue, I submit, I contend and I suggest but I would never be so bold as to state!! When I win I'm brilliant and when I lose the Judge is an idiot that ought to know better.

POW would of course be perfectly within their rights to blacklist those flippers and refuse them any further purchases - however with payments being automated it would be very difficult for POW to filter out the blacklisted buyers before payment was taken - to get around this POW would need to inform relevant flippers that they are barred from future purchase so that in the event they ignore the ban and manage to get their order accepted POW would be able to escape the contract on the basis of mistake as to identity regardless of offer/acceptance and regardless of the wording of the T&Cs.

Sorry this turned into a longwinded essay, I got carried away. Main message is that if I were POW I would happily use the term to point those buyers to whom I wanted to refund but would I want to rely on it 100% when the chips are down? - No. As a seller of goods I have to accept that I have no right to dicate to buyers what they can and can't do with the goods I sell them and that any clause that tries to achieve this is open to challenge.

Having said that POW have my full support in their anti-flipper policies but ethics and the law are very different things.

You can all wake up now!

EDIT: (a) I don't see that the Distance Selling Regs have any relevance to this particular question
(b) Don't assume that just because something is stated "officially" in T&Cs or elsewhere that it will necessarily stand up - how many times have you seen a notice saying "We accept no responsibility for injuries etc" - totally meaningless and simply put up as a deterant to would be claimants.

Oh, and you are all correct you cannot sell what you don't own but the e-bay sellers are not actually selling the print, they are entering into a contract agreeing to send the print on to the e-bay buyer when it is received. They should be making the deals conditional upon them actually receiving the print otherwise they could be in trouble if it never arrives however legally they are entitled to do this.

interesting read rydal, essentially you cannot be the seller of goods and retain a third party control at the same time? you either sell or you don't, is that right?

could any retailer insert a covenant stipulating a period of time where resale is prohibited?

thanks rydal, it makes a lot of sense and it is so nice to have it clearly written in simple terms, not your usual legal mumbo jumbo

+1 for the info sir.

Fantastic Rydal. +1
So how about my £35 Xbox 360 that Tesco's 'withheld' from me? ;D

Already dealt with that a few days ago Danvnuk, not good news I'm afraid:

"Good try guys but Tesco's will not be obliged to honour these purchases and I doubt very much they will chose to do so as a gesture of goodwill. Regardless of their terms and conditions and principles of offer and acceptance they will be able to void the contracts on the basis of "operative mistake". Previous cases have involved Argos selling TV's (which they didn't honour) and Kodak selling cameras online (which they did honour but only because the deal was just about believable, given that the page was covered in "Special Deal" type promotions etc)."

Basically if a retailer makes a mistake they will generally have to honour it UNLESS the buyers ought reasonably to have realised it was a mistake, in which case the contract will be void. Obviously therefore the question is whether the reasonable consumer should have realised the deal was too good to be true. In this case I'm confident a court would conclude they should have. Sorry!