Bait and Switch the Fact

Bait and Switch

The fact that Betty drove three hours in one-hundred degree heat does not have any bearing on whether Tony must perform. Legally, the distance traveled to make a deal has no bearing on the performance of the deal. The vendor cannot be held responsible, and has no obligation to take into consideration, the lengths that the prospective buyer has gone through to make the offer.

Tony's offer over the phone does not constitute a legally-binding offer to purchase the vehicle from Betty. That offer does contain the five elements of a contract. There was a meeting of the minds. There was an offer made by Tony, which was accepted by Betty. However, it is unclear whether she accepted over the phone or not. There is mutual consideration in the form of Betty's truck. There is performance on Betty's part, as she has delivered the truck. There is no violation of public policy and presumably the parties are acting on good faith (Larson, 2010).

However, it would be almost impossible for Betty to enforce this agreement in law. Oral contracts are almost impossible to enforce. In auto sales involving a dealership, there is almost always a written contract, and the deal is not completed without it. Tony could reasonably argue that there was no good faith offer on a vehicle, and that one could not be made over the telephone. One of the key elements in this situation is what a reasonable person would think of the situation (no author, 2011). Betty's viewpoint is unenforceable because it is highly likely that a reasonable person would expect that no serious offer was being made for a vehicle without the dealer having actually seen the vehicle, and even then no sale could possibly be made without a bill of sale.

3. A bait and switch situation is defined by the Federal Trade Commission as one where there is an "alluring but insincere offer which the advertiser…does not intend to sell" (Duff, 2011). There are a few ways in which this manifests. The first is with respect to product availability, where the product being advertised is not made available for sale. Discouragement is another form of bait and switch. In this case, we definitely see discouragement as Tony is unwilling to discuss the advertised truck with Betty and tries immediately to steer her to other models.

We also see, however, a lack of genuine intent to sell the advertised truck to the public at all. In general, employees of a retailer would not be allowed to purchase out the inventory of a deal that was advertised. The store might be allowed to sell whatever vehicle it wants to the employee, but it cannot sell a vehicle that is the focus of an advertised special to an employee before the store even opens. 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 to Betty even though he was have to have been aware of it. He was using that advertised truck as a means to get Betty into the dealership and sell her another truck.

4. An advertisement is not an offer, but an invitation to treat. Thus, the dealership doe not need to sell the truck to Betty as she must be the one making the offer. However, the dealership does need to advertise the truck in good faith, so it must be available to the public and the price does need to be as advertised. Thus, while Tony is not bound to sell the truck specifically to Betty until she makes an offer to buy the truck at that price, the dealership must make that truck available at that price. Betty does make Tony an offer for that specific truck from the ad, and she specifically mentions the price. As no other member of the public has made that same offer than Betty did, it is likely that the dealership would be compelled to sell the truck to Betty under those terms, or being found guilty of having executed a bait and switch.

5. To avoid a bail and switch situation, the advertisement has to be true to the extent that the specific product in question is available at the advertised price during the period of the ad. In this case, the truck was actually sold internally before the dealership would have opened, meaning that the truck in the ad was never even available to the public for sale. As such, it is reasonable to find that the truck was "bait."