Purchase Price Negotiations

[keronarts]

It seems that there are a few issues at work here. On one hand it is reasonable for the purchaser to expect a virtual guarantee that they WILL get some satisfaction for sending their green tender abroad into the hinterlands. How many times have there been SERIOUS scams of all sorts as regular news?

Then the issue of damage in transit. If you ship it and they DON'T LIKE IT [sight UNseen, etc. ...], they're probably not even going to be all that careful to make sure you get the horn back unscathed. It's one thing for Sears or Walmart to have a "scratch & dent department" -- you the tuba player don't need to take over that role.

Unless extreme circumstances exist, the purchaser is making a MAJOR investment that they should verify any assumptions by even getting together with Mom & Dad, taking a ride in the wagon over to your place -- or half-way? -- to make sure they're going to be happy with the horn in the first place. If they're not, then you'd have the hassle of the returns, shipping, etc. They're already making something of an investment by taking the time and expense for private lessons before they ever contacted you. The horn is just an extension of that.

You the seller, on the other hand need to be assured that you're going to get paid in full, the check won't bounce, no hanky-panky exists, etc., when you ship out/ deliver the merchandise. My inclination would be to settle for nothing less than payment in full on this. That's just the way of the world. Why should you be any different? I've even sold computers on totally private sales where I don't EVEN THINK of shipping the item till the $$$ clears. Tubas should somehow be exceptional?

They want a trial period and I understand their jitters on the issue. How about a general solution such as this. Don't know what if any relationship you might have with your attorney. But they could act like an escrow agent in the deal. Chen, Dean E & cjk alluded to this above. On the one hand this is YOUR attorney. And, contrary to popular rumor, they're not ALL sharks with blood dripping from their jaws and might be very good at this. On the one hand they are your representative, but would hold the funds [and as such, really have a fiduciary with the PURCHASER during the holding period] till a 2-week trial period expired. Unless they heard of dissatisfaction by the purchaser, they would, at the end of that period, automatically release the funds to you. Title would remain in YOUR hands until funds clear. If they charge (you) for this, pass that cost on to the purchaser. The purchaser would have to agree to all this ahead of time. It's much like a real estate or other BIG ticket item transaction. Such a person to ask about this type of involvement probably should be an attorney or similar professional. They'd understand the transaction, and the penalties for not abiding with what you say you will do -- and, any slipperiness on their part would be tantamount to grand theft, for which they could be disbarred or even serve jail time. But I wouldn't approach this situation without a deposit and perhaps any shipping costs/ attorney fees [if you wanted to go that route] right up front. Then the balance would be held by the escrow agent till apparent satisfaction occurred.

[Tom B.]

I've had good luck, both as a seller and a buyer, with an online escrow agent, http://www.escrow.com. There are probably others that provide this service, but this is the one I happened to use. It's probably cheaper than an attorney. The money is held by the escrow agent until both buyer and seller are satisified with the deal, or the merchandise is returned, unharmed. Just make sure every shipment has insurance on it.

Tom B.

[Mitch]

I am amazed that more people don't use contracts (written, that is) in the sale/purchase of instruments, given that we're dealing with thousands of dollars.

(I am a licensed real estate agent in IL and use contracts all the time; however, an attorney I am not.)

In any market, be it fruit, houses or tubas, the price is set by the seller, and the value is determined by the buyer. You can ask whatever you want, and you can determine what's too much.

In the Chicago real estate market, we're more stable than the east coast, west coast and other formerly "hot spots," such as Florida and Nevada. But people hear all the garbage in the media about how the housing market is "crashing" (historically speaking, it's not true, but that's another topic). So we are experiencing buyers who think they're going to get a deal no matter what the list price of a home is. Stupidly so, quite frankly, such that market research and current statistics are ignored.

But this sounds a little like what many posters here experience; no matter how reasonable the asking price, someone comes along thinking you're in the mood to give it away to the first nut that falls from the tree.

As a seller, you have every right to ask for whatever you feel is reasonable. After all, it's your property and remains so until payment in full is rendered. You have the right to take reasonable steps to protect your property, including its current value, vis-a-vis condition. This can, and should, include measures to protect the value should someone trying the instrument cause it damage. You have the right to secure the property against loss of value, even if the potential buyer balks. I would recommend language such as:

"Buyer agrees to render payment in full of the listed purchase price to initiate the trial period. Once funds are secured, the Buyer will have 10 (ten) business days to try the instrument [having already defined the instrument by maker, model and ser. #, as well as photo documentation of condition at time agreement commences]. The instrument must be returned within the time specified or Buyer forfeits 10% of the full purchase price without further claim and agrees to take no measure to seek remedy or reimbursement. If the Instrument is returned in a timely fashion and in the same condition delivered, 100% of the full purchase price will be returned to Buyer. Should the Instrument be returned in damaged condition, Seller will seek one estimate for the cost of repairing said damage, and will then withold that amount plus 10 (ten) per cent of the full purchase price. Buyer will make no claim against Seller if damage has been done, and agrees to make no claim against Seller. Any claims of damage done in shipping will be between Buyer and Shipper only to settle."

Or something like that.

You can set whatever terms you like. It's up to a Buyer to decide if they want badly enough to try it, whether through a local pick-up or shipping. But I always advocate taking reasonable measures to secure your property against damage.

Seller sets the price, buyer determines the value. You can ask whatever you want, and buyers may or may not go for it. If they don't, you then have to decide which items from your list of preferred terms you're willing to sacrifice, be it ancillary terms or price.

[keronarts]

Some additional excellent suggestions by Tom B & Mitch on this issue. One thing you should DEFINITELY do is to get it all in writing with a signed AND acknowledged WRITTEN contract with many of the suggestions that Mitch has spoken about -- perhaps more. But you need an admissible written document in hand before proceeding -- even if you close it with lipstick on the back of a coffee cup -- be sure to get it in writing before proceeding. Worst case scenario, there would be a problem that would wind the whole thing up in a courtroom and now YOU the seller need proof that would render the judge's determination in your favor.

There is a statute of frauds issue without proper written docs in hand. Oral agreements are not only not binding, if he has NOT signed it, he could also claim it was hearsay and just NOT part of the deal. If you don't spell out all issues to be agreed upon, they right away fall into that hearsay category. NOT where you want to be.

And be concise yet thorough in anything written and agreed to. Vagaries usually go against the drafter of any contract so if you want the buyer to do something of ANY kind, be sure he agrees in advance in writing.

Also get some pictures BEFORE the instrument is sent. Keep these AT LEAST one year after the buyer receives the product. If any damage occurs, he may try to claim that you shipped damaged goods and to perhaps seek restitution from you. Keep proof on your side.

By all means encourage the deal and move it forward -- just be sure you're amply protected against present and future eventualities and potentialities. It's suicidal to be naive about this or anything else in the BIG DEAL category. We all know tubas are a BIG DEAL -- they also need to be a GOOD deal too.