Note: Sample below may appear distorted but all corresponding word document files contain proper formattingExcerpt from Essay:
Bait and Switch
Betty drove three hours in one-hundred degree heat. Explain if this fact has any bearing on whether or not the dealer must perform in accordance with the publisher advertisement
The fact that Betty drove three hours in one-hundred degree heat is in no way a fact that can compel the dealer in performing the contract. The choice to dive was Betty's and the advertisement was merely an offer that could have been technically withdrawn any time before Betty claimed the contract. The dealer was bound to sell a car as per the advertisement which has a small print that says "Just one at this price, number 121567." ("Video 48: Advertising and Communication Law: Bait and Switch," n. d)
Whether that is enforceable or not is another issue. But the fact that the advertisement was answered to by Betty by traveling three hours in hot climate has no bearing on the case. It is the same if she just walked over from the next block or traveled all across the globe. An action of the complainant that was not directly caused by the advertisement does not have any bearing on the case. But the fact is that the advertisement deceptively made it known that a particular truck was available and the actions of the dealer that followed show that Betty was made to travel to be a victim of Bait and Switch. As per laws in various states the travel could also be included as a part of the bait and switch as in Texas for example. (Cross; LeRoy, 2008)
It could also be construed as a tortuous act arising out of the violation of the FTC standards. It appears that at the time of the journey the fine print was not read by Betty. Betty can thus bring about a tort act but not under a contract. Even though the advertisement is not a contract, a consumer can find redress under the consumer protection statute against advertisements that mislead or is put up with the intent to cheat the customer. This applies to the case of Betty where the automobile dealer can be sued under the consumer protection laws. (Beatty; Samuelson, 2006)
2. When Tony said over the phone "three thousand dollars firm," explain whether or not he was making an offer that, if accepted, would bind the dealership in contract.
Though the courts look upon advertisements as an invitation to offer, in this case it can be seen that there was the following scenario -- "Betty Okay. & #8230; I called over the phone, and the man said he'd give me three thousand dollars in trade for it. Tony, Oh yeah, I remember. That was me. Betty Well, it's all yours." ("Video 48: Advertising and Communication Law: Bait and Switch," n. d) In this case the offer to take up the truck at a specific price was made by Tony and it enforced the statement in the advertisement and therefore it is an offer made direct to Betty. She accepted the offer in the same terms as the advertisement and when she said it is yours she has accepted Tony's offer.
The offer can be terminated only if the offeree rejects an offer. However when an offer is made over the phone and the offer has not rescinded the offer before acceptance the offer becomes a contract. (Beatty; Samuelson, 2006) Betty accepted the offer at once. The actions of Betty show that Tony could be compelled to stick to the terms of the offer. The question then is what if the contract did not go through and if the truck was not sold as anticipated? Could the offer be then invoked? Could Betty compel the agent to buy the truck in exchange for the goods she wanted? While non-availability may not raise an action against the retailer under contract laws it is a moot question if the offer by Tony constitutes a separate contract with regard to Betty's vehicle. The price for the trade was fixed by phone, which Betty accepted. So between her and Tony did a contract exist? The answer depends on whether the exchange was made as an offer with the condition of sale of a new vehicle. In that case if the original offer was not performed the subsequent offer made collateral to the original offer cannot also be enforced for want of consideration.
3. Explain whether or not advertised specials can be taken advantage to the terms of the advertisement
The advertisements and obligations concerning the contracts was excluded or limited by exemption clauses as in the impugned advertisement - Number 121567, for example. ("Video 48: Advertising and Communication Law: Bait and Switch," n. d) "This was the exemption or limitation clause. Earlier it was prima facie binding on consumers even if not understood or read. This anomaly 'Lord Denning MR' called as a bleak winter for our law of contract was further compounded by the use of standard forms called the contracts of adhesion. Thus in modern times the form may be a part of a contract that is forced on a consumer." (Miller; Harvey; Parry, 1998)
It is also unfair, and courts will have to look at these types of contracts with a different eye. Advertisements may cause injury in tort if the advertisement can be shown to be false. Thus the pricing issues may cause injury although the manufacturer can determine the price of the product. Price discrimination may cause a tort of injury where a primary injury can be caused by selling a product at two different prices depending on the parties. Thus between seller and customer, customer injury may be caused giving raise to actions. (Evans, 1995) The contract must be based on consensus ad idem and in malicious cases the mirror image rule states that the acceptance must be in the same terms of the offer and thus there must be consensus ad idem in the understanding of the offer by both parties. (Beatty, Samuelson, 2007) Thus the special services that come as a part of the whole contract can be fulfilled only as a general part of the whole contract and cannot be severable.
4. Explain to what extent an advertisement binds the advertiser to the terms of the advertisement.
Even in a case of impossibility of performance as in the case where the U.S. Liberty coins were advertised and applied for, the Mint was unable to process the flood of requests and in this case the plaintiff sued the mint for not getting the coins as ordered. The court stated that the advertisement is not a contract and not even an offer. The advertisement is merely a request for an offer. (Beatty; Samuelson, 2006) Thus false advertising is a criminal offence. The prohibition on the false advertising can be seen from the passing of the 'Merchandise Marks Act 1887' and the act has been made a crime. This was intended to protect the buyers of goods but having found to be full of contradictions it was amended with the 'Trade Descriptions Act 1968' which is the act under which the consumers seek redress now, it being simple as compared to other consumer statutes. (DiMatteo, 1998)
Ironically the larger part of retailers and traders who are booked under this act for false trade descriptions are car sellers, where the act specifies that applying a false trade description to any goods and making statements concerning the provision of services etc. that are false can bring about strict liability. (DiMatteo, 1998) Therefore the advertisement must be performable and even if there is a small difference, actions ensue in other laws other than contract act because under the contract, performance is not dependant on the advertisement but more on the contract that ensues after the purchase. The advertisement is seen as an invitation to offer. The offer may be another form that is different from the advertisement and therefore an advertisement can bind the advertiser only to the extent that the opposite party entered into the contract believing the truthful nature of the statement in the advertisement.
5. Explain to what extent an advertisement has to be true
Advertisements have to be true to the factual and correct details of what is sought are to be advertised. The false advertisements that do not give correct information or those which promote a product by making it appear better than what it really is can be false. The advertisement that contains falsehood is unlawful. States have different statutes to regulate this. The Texas Deceptive Trade Practices Act is one such statute. The advertiser stands the risk of being sued for triple damages. It is a deceptive trade practice also under section 5 of the Federal Trade Commission act and will invoke action by the FTC. The individual industries like food, pharmacy and so on also have their own acts that prohibit claims that are false and wrongful advertisements. (Evans, 1995)
To make an advertisement false, the ingredients are that…[continue]
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There is a reasonable expectation that on a used car lot the quantity of any given vehicle would be one, but selling to an employee before the lot even opens to the public constitutes a bait and switch situation. This is especially the case since Tony and Betty were having their conversation after the advertised truck was sold to the employee, and Tony made no mention of this fact