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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Legal
Satisfied Customers: 41221
Experience:  Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.
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client purchased closeout shipment from me.I informed this

Customer Question

client purchased closeout shipment from me.I informed this must be sold out of US via email and he reassured in text messag it was sold to Mexico.I see this product still sold here and he's saying we never signed any contract on the conditions and he denies knowing about the product not meeting the regulations but I verbally told him when he came to see the sample.Am I protected if there's no signed contract on it not meeting the regulation?He did text it was sent to mexico.Im in CA.
Submitted: 4 years ago.
Category: Legal
Expert:  Dimitry K., Esq. replied 4 years ago.

Thank you for your question. Please permit me to assist you this evening.

My apologies to you on your situation. To be honest I am not seeing protection here for you--the reason is because if it was not in the commercial agreement with you, then you as the distributor remain liable if you had potential knowledge or notice that the buyer would not honor the conditions. Furthermore there are no exportation conditions in the sale, so in that case you as the seller are not really protected by his text, since that is really outside the contract is not supported by any sort of consideration (valuable exchange for his promise). I am sorry, but I have to provide you with an answer that I see as best fitting the facts and here his email may not be enough.

Good luck.

Customer: replied 4 years ago.


My email introducing the closeout clearly says must be sold out of usa and he responded to that email,wouldn't that be considered acknowledging the condition? I wasn't aware he was not keeping the promise of selling outside of the country. He also verbally promised me several times of understanding the product condition and that he's selling out of country. A verbal contract was formed between us on the business transaction based on the product condition which is why the item is a closeout. Our invoice states closeout items no exchange, return and refund.

Expert:  Dimitry K., Esq. replied 4 years ago.

Thank you for your follow-up. Please allow me to respond to each point that you raised.

My email introducing the closeout clearly says must be sold out of usa and he responded to that email,wouldn't that be considered acknowledging the condition?
An acknowledgment, yes, but not a binding promise. Since that was not part of the final agreement, what governs is the final contract especially if this email took place before the purchase. The courts treat the email as if it was intentionally not included because the final agreement would represent all of the conditions and terms of sale between the parties. If the email occurred after the sale, then arguably there is at least an outside shot to claim that the initial agreement was modified by the promise, but then the issue would be based on what promise or exchange of terms would the promise be binding. An email before the contract was signed would be considered negotiation only and not part of the agreement.

I wasn't aware he was not keeping the promise of selling outside of the country. He also verbally promised me several times of understanding the product condition and that he's selling out of country.
A verbal contract is not binding when there is a written contract in place. Written terms always trump an oral promise.

A verbal contract was formed between us on the business transaction based on the product condition which is why the item is a closeout. Our invoice states closeout items no exchange, return and refund.
I understand but the verbal contract is irrelevant. What governs is the language in the contract and on the invoice. If no limitations were put in either of those places, then the other party can sell the items wherever he wishes without penalty to him. You obviously may be liable to the original party, but he would not be liable himself.

Good luck.