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More info?)
Loosey wrote:
> Can you answer this for me though; if you pay for an item
> and then find out it is not "as described" before delivery should you
> accept delivery of the goods? I ask because I was always told (in
> Australia anyway) that if I do a job for someone and say I charge them
> $1500 for my services, I should not bank any "part" payments. So if
> they send me a cheque for $1000 I should hang on to it until the other
> $500 is paid to me. Apparently the reason for this is that they can say
> I accepted the $1000 as full payment and so I thought that if you
> accept delivery of the substandard goods you are saying you accept the
> goods as they are. This of course is based on that you know that the
> goods are not up to scratch before they are delivered.
Hi, Dave:
If I understand your question it has two parts.
First, should a person accept goods that are different from those
represented and, second, if a person accepts partial payment does that
prevent them from demanding the balance be paid.
Let me begin by saying I am a California lawyer and laws can be
different between one state and another so they can certainly be
different between one country and another country. In California there
is something called the Uniform Commercial Code which sets forth the
law on commercial transactions. And if there is no particular statute
then the courts will look to what is known as the "common law," which
simply means basic legal concepts.
Now, to answer your question as to acceptance of goods, there are
specific provisions in the Uniform Commercial code as to goods which
are leased and those which are purchased. Generally speaking, if a
person discovers they have purchased non-conforming goods and has not
yet received them, then they can refuse to accept them and have a right
to recover their money. Naturally, if the non-conformity is not
discovered until after acceptance, then the buyer has a reasonable time
to reject the goods by giving notice to the seller and returning the
goods for a full refund. Because there is a large body statutory law
on the subject that is simply an overview. But you can look it up for
yourself by going to this link, clicking on the box for the Commercial
Code and then entering the phrase "nonconforming" (without the quotes).
It will bring up various code sections which you can then read.
Here is the link:
http://www.leginfo.ca.gov/calaw.html
As for accepting a partial payment and that preventing a person from
seeking the balance due the rules are a bit different depending upon
whether the payment is to an individual or an institution. If to an
institution prior notice must be given that the payment is going to be
sent as payment in full but that is not required if the payee is not an
institution. In either event there must be a clear notice provided by
either a letter with the payment or on the check itself, that it is
being tendered as payment in full of a disputed claim. The law on this
can also be found in the above link and after you check the box for the
Commercial Code just enter "3311" (without the quotes), which is the
code section that sets out the California law in this area.
And, because I am an attorney, forgive the following, "disclaimer:"
The foregoing is all provided as general information and is not to be
relied upon as a legal opinion for any purpose whatsoever. Nobody
should act or not act in reliance upon the foregoing and should
actually retain counsel to obtain independent legal advice before
considering the foregoing as applicable to any situation which may have
affected or which may yet affect their legal rights and/or their course
of conduct.