[Leica] Re: The Optical Wars: Was Zoom Saga

["Dante A. Stella" <dante@umich.edu>]

Hey Bryan:

Don't forget that you need (depending on your state's formulation)

a material representation
known to be false
made with intent to induce reliance
which resulted in reliance
which resulted in damage

Gee, it just comes out in blank verse - sort of like

Pater noster
qui es in caelis
sanctificatur nomen tuum
adveniat regnum tuum
fiat voluntas tua
sicut in terra et in caelis
&c.

(from 12 years ago, so sorry if I snag a line) But the rhythm of that harkens
back to a passage (Thucydides or Herodotus, it slips my mind) - and it was
probably spoken in dactylic hexameter as the Athenians (or was it the
Persians?) threatened  the Spartans:

If you do not surrender, we will attack you
If we attack you, we will land on your shores
If we land on your shores, we will lay siege to your cities
If we lay siege to your cities we will rape your women
If we rape your women, we will burn down the city

(Paraphrasing liberally)  To this the Spartans (now it seems to be the
Pelopponesian Wars, since in the Persian Wars the Spartans and the Persians met
on land - and Marc, I'm sure you'll jump in on this one) replied:

If.

But - back on track - don't forget that fraud needs to be alleged with
particularity and proven by clear and convincing evidence.  Fraud is a bitch to
win on.  What you want is breach of contract.  It would be much easier to force
the seller to pay you the difference between the lens at the price he promised
and the lens at the price available to you now.  Geez - that's in the UCC.

Dante
(also an attorney but one who dimly remembers 6 years in a Jesuit prison camp).



Bryan Caldwell wrote:

> Austin,
>
> I would suggest that you read California Civil Code section 1572 for the
> relevant definition of "fraud," not the dictionary. eBay, with headquarters
> in California, specifies that its User Agreement is to be interpreted under
> California law.
>
> Granted, listing property for which one does not have title or the authority
> to transfer title does not necessarily rise to the level of a criminal
> offense until someone suffers damages (at which point civil liability is
> also an issue), but it clearly is a violation of eBay's User Agreement -
> which everyone who lists an item agrees to follow.
>
> A finding of fraud does not require "deliberate deception" nor "unfair or
> unlawful gain." I would not rely on the dictionary to render legal advice
> any more than I would use it to render medical advice.
>
> Bryan (yes, an attorney)
>
> ----- Original Message -----
> From: "Austin Franklin" <austin@darkroom.com>
> To: <leica-users@mejac.palo-alto.ca.us>
> Sent: Friday, March 09, 2001 12:43 PM
> Subject: RE: [Leica] Zoom Saga
>
> > > Please look up the
> > > definition of fraud in a dictionary!!!!!!
> >
> > Two things to your more or less irrelevant post.
> >
> > One, YES go look up fraud, and make sure YOU read it:
> >
> > "A deception deliberately practiced in order to secure unfair or unlawful
> > gain."
> >
> > What do you believe was the fraud, and also note, do you have any evidence
> > that shows this was clearly done as a "deliberate deception"?  You have to
> > show 1) deliberate deception AND 2) unfair or unlawful gain.  Neither of
> > those can hardly be substantiated.
> >
> > Look up the word REASONABLE in the dictionary.  If the seller has a
> > REASONABLE expectation that s/he made arrangements to have clear ownership
> > of the item, there was nothing unlawful.  Obviously there was NO
> deliberate
> > deception intended either, so it isn't fraud.  A mistake, yes, fraud NO.
> >
> > Second.  This is a CIVIL matter.  Unless 'someone' can show damages, and
> > they HAVE TO BE MONETARY in this case, claiming emotional distress is
> absurd
> > (though it would appear some of you might try!), you have no case, period.
> > The reserve on the auction was NOT met, and anyway, if it was, the auction
> > was not run to completion, and the ONLY person who could have any case
> would
> > have been the winning bidder, and since there was no winning bidder, NO
> > CASE.
> >
> > I hope you didn't waste any money on that attorney...
> >
> > My God, get over this!
> >