I need a little help? Would You sell this Horn?

[pgym]

And, contrary to popular belief, possession is NOT nine tenths of the law, except in cases where ownership of the property is BOTH unknown and disputed. In this instance, ownership of the tuba is both known and undisputed.

NO NO NO!!! MERE POSSESSION IS NEVER A BASIS FOR CLAIMING OWNERSHIP!

My learned colleague's objection notwithstanding, in Western jurisprudence, the principle that, in instances where RIGHTFUL OWNERSHIP IS BOTH UNKNOWN AND DISPUTED, absent presentation of a PRIOR claim to RIGHTFUL OWNERSHIP, current possession does form a valid basis for establishing the possessor's ability to possess, use and dispose of property as he sees fit, is both clearly and firmly established in case law from time immemorial. So while mere possession neither CONVEYS nor ESTABLISHES rightful ownership, it MAY, in very limited circumstances, serve as a basis for CLAIMING rightful ownership—a point learned counsel concedes in the fourth paragraph of his brief.

In the case immediately under discussion, AS NOTED IN THE SECOND SENTENCE quoted by learned counsel, the petitioner has no right to use or dispose of the property in question since, as he himself concedes, the rightful owner of the property in question is both KNOWN and and the rightful owner's claim to the property is UNDISPUTED.

[Rob]

Of course I was joking in regards to the pawning...did think though that the idea of construeing a payment plan in regards to trying both to entice the owner to settle and get the "mechanic" his due payment was possibly a good one.

So with the pawning joke aside, and the legal opinions free and flowing, how about an opinion as to whether constucting a "contract" either oral or written at this point in time is even possible. The work is done, he sends a bill offering a payment plan? Would the making of the first payment now bind the owner, and would the failure to pay in full result in a position that leaves Harvey with a better claim upon the horn?

Could a post work device such as this create any sort of contract, without Harv having to hire a lawyer and watch his profit margins slip? Would it make any legal action easier and more straight forward if he did make a payment and then not finish paying?

I think this is a better point to contemplate...but if the pawning is the most important thing I said, then: Put it on display at your friends pawnshop, right in the front window where the world and the owner can see it. Tell the owner he can drop by at his earliest convenience and settle the bill.

Rob "shaking his head and thinking he shouldn't have bothered typing this much on an Ipod"

[iiipopes]

And, contrary to popular belief, possession is NOT nine tenths of the law, except in cases where ownership of the property is BOTH unknown and disputed. In this instance, ownership of the tuba is both known and undisputed.

NO NO NO!!! MERE POSSESSION IS NEVER A BASIS FOR CLAIMING OWNERSHIP!

My learned colleague's objection notwithstanding, in Western jurisprudence, the principle that, in instances where RIGHTFUL OWNERSHIP IS BOTH UNKNOWN AND DISPUTED, absent presentation of a PRIOR claim to RIGHTFUL OWNERSHIP, current possession does form a valid basis for establishing the possessor's ability to possess, use and dispose of property as he sees fit, is both clearly and firmly established in case law from time immemorial. So while mere possession neither CONVEYS nor ESTABLISHES rightful ownership, it MAY, in very limited circumstances, serve as a basis for CLAIMING rightful ownership—a point learned counsel concedes in the fourth paragraph of his brief.

In the case immediately under discussion, AS NOTED IN THE SECOND SENTENCE quoted by learned counsel, the petitioner has no right to use or dispose of the property in question since, as he himself concedes, the rightful owner of the property in question is both KNOWN and and the rightful owner's claim to the property is UNDISPUTED.

Thanks for clarifying your position.

[Uncle Buck]

All this gobbledegook about different legal precedent in different states (and trust me - I've sat through all those ad-nauseum law school discussions, and had the same discussions with practicing attorneys who want to analyze every issue to death), is there or isn't there a contract, etc., may or may not be interesting.

But in the REAL world, where the guy who brought in the horn would have to decide whether to first, ignore the letter and refuse to pay Harv and then, take it on himself to try to go after Harv to re-gain possession of either the horn or the money, pay a filing fee, convince the small-claims court judge (who will be a pretty busy guy not wanting to waste time with someone who never paid his bill in the first place) of some obscure legal theory he hasn't heard since law school, etc., etc., . . .

then Bloke's original advice still sounds pretty damn good to me.

[pgym]

Without getting into the details of PA law, it is impossible to answer any of your questions. That is why the OP needs to consult with HIS lawyer

As for "watching his profit margins slip," sorry, that's the cost of doing business. Had the OP consulted a lawyer to draw up a repair policy that complies with PA's legal requirements from the get-go, he wouldn't be in this position now. That's not meant to be mean or uncaring: it's simply a statement of fact. The question is, what's he doing to avoid similar situations going forward?

Re: the presenting problem:

----------
DISCLAIMER: THE FOLLOWING DOES NOT CONSTITUTE LEGAL ADVICE OR A LEGAL OPINION, AND MUST NOT IN ANY WAY BE CONSTRUED AS SUCH. SEE MY SIGNATURE BELOW
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Gold Rush times. Tenderfoot from back east...gonna get rich quick. Buys all the necessaries in a mining town…supplies, clothes, tools, a mule, the works…packs up and heads out. Twenty feet past the town line, the mule sits down, and WILL NOT MOVE. NO amount of persuasion, cajoling, threats, kicks...NOTHING’S gonna move this mule.

An old, tattered prospector and his old, tattered mule approach from the other direction. Old man says “Whatsa matter, there, youngblood? Mule trouble? Lemme have a try.” Walks up to the mule, cups his hand around the mule’s ear, whispers a few words....No response. Tries again, same result.

Steps in front of the mule, gives it a TREMENDOUS whack right in the snout.

The mule keels over as if it had been poleaxed, lies there on the ground w/its eyes all crossed up and rolling, foam coming out of its mouth. The old prospector leans over, cups the mule’s ear, and once again whispers a few words. The mule slowly struggles to its feet, and stands, a little dazed but apparently ready to go.

The tenderfoot says “That’s AMAZING !!! What did you say to that mule?”

The old man answers “Waaall, ‘tain’t really all that important WHAT y’say to a mule. The IMPORTANT thing is...first y’got t’get their ATTENTION.”

-------------

Hypothetically speaking, if the OP were a client, I would "observe" that there is no legal prohibition against writing a demand letter along the lines suggested up-thread and sending it to the owner—registered mail, restricted delivery*, return receipt—"possibly" highlighting in bold the threat** to sell the instrument if payment in full is not received, or other arrangements are not made, within a stated period of time.

* restricted delivery is crucial since it ensures that the letter can be delivered ONLY to the owner rather than to the owner's girlfriend, secretary, dog, or whomever happens to be at the address at the time of attempted delivery.

** THREAT, i.e. the expression of an intention wherein a negative consequence is proposed in order to elicit a response, and not an actual course of action to be pursued until all the necessary legal requirements have been met to CYA against possible legal action by the owner.

----------

Like the old man said: it ain't important what you say; you gotta get their attention first.

Bet on it.

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DISCLAIMER: THE FOREGOING DOES NOT CONSTITUTE LEGAL ADVICE OR A LEGAL OPINION, AND MUST NOT IN ANY WAY BE CONSTRUED AS SUCH. SEE MY SIGNATURE BELOW
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Pgym.

[iiipopes]

What pgym said. I concur completely -- been there, done that, watched people lose the t-shirt right off their backs on both sides.

Unless down the road a repair person is prepared or willing to take the risk to purchase another instrument for the owner, or cough up cash for its value (we can argue later whether the repair person is liable for the value of the instrument as it was presented to him, or for its value after repairs were effected), the hoops must be jumped through.

Oh, yeah, I guess I better state nothing I said can be construed as legal advice, either, especially as I do not practice law at the current time, just a rant from a guy who really gets tired of hearing cliche'd phrases misused.

Just one of these days, but for all the requirements of debt collection laws, finance laws, defamation laws, etc., I'd love to be able to just say it short and sweet like the following to a guy who owes a lot of money who has been demonstratably obstinate about paying. (The following, of course, being what I'd like to say, but for the prohibitions of all of these laws, and others, will never get to actually say it like that in an actual collection letter.)

Dear Deadbeat:

Pay up or get sued.

With Love,
/s/

[pgym]

Just one of these days, but for all the requirements of debt collection laws, finance laws, defamation laws, etc., I'd love to be able to just say it short and sweet like the following to a guy who owes a lot of money who has been demonstratably obstinate about paying. (The following, of course, being what I'd like to say, but for the prohibitions of all of these laws, and others, will never get to actually say it like that in an actual collection letter.)

Dear Deadbeat:

Pay up or get sued.

With Love,
/s/

Make an intern do something useful for a change. Assign one the task of writing an acrostic demand letter, in which the first letter of every sentence, in order, spells out the above.

[J.c. Sherman]

Perhaps I'm beginning to see the light here...

It was looking a bit nightmarish to contemplate how one could accept any work from people - especially large jobs - if you may get stiffed. But the more I look at it and the abandoned carcasses in our shop and the economic collapse around us, I guess it would behoove all of us 'techs to get a legal policy - a reasonable policy - to communicate to clients.

In a world of fairness, if the dude refuses to pay, you should be able to sell the $3,500 horn for $800 (or whatever the bill is) and tell him to stuff it.

In a world of law (which portion of the thread I'm enjoying greatly) there have to be rules to protect both parties. While the list of scenarios I can contemplate excusing the customer's lack of payment is small (the dude could be in a hospital and the girlfriend left him...), there have to be protections for him too.

Guess I'm going to speak with a lawyer (sigh...).

J.c.S.

[iiipopes]

Guess I'm going to speak with a lawyer (sigh...).J.c.S.

Good call. Good luck. Let us know how it turns out.

Just one of these days, but for all the requirements of debt collection laws, finance laws, defamation laws, etc., I'd love to be able to just say it short and sweet like the following to a guy who owes a lot of money who has been demonstratably obstinate about paying. (The following, of course, being what I'd like to say, but for the prohibitions of all of these laws, and others, will never get to actually say it like that in an actual collection letter.)

Dear Deadbeat:

Pay up or get sued.

With Love,
/s/

Make an intern do something useful for a change. Assign one the task of writing an acrostic demand letter, in which the first letter of every sentence, in order, spells out the above.

Oh, yeah! Now that's rich! I had never thought of that. I haven't done acrostics since I was a boy doing the puzzles in the back of Boys Life!

[pgym]

Perhaps I'm beginning to see the light here...
While the list of scenarios I can contemplate excusing the customer's lack of payment is small (the dude could be in a hospital and the girlfriend left him...)

Could be deployed.

[The Big Ben]

Guess I'm going to speak with a lawyer (sigh...).

It will be money well spent and probably not that much...

The TNFJ can say what it wants but the lawyer is the one who should know what will fly and will be there in court to support it if it gets that far...

[Rick Denney]

There's a theoretical legal discussion going on here. But it seems to me that Harv would not be risking any legal consequences until he actually sells the instrument.

But there is nothing in the world keeping him from making the owner believe that he might sell it.

Thus, a letter sent by certified mail that demands pay and threatening to sell the instrument is a bluff. But it is likely to be an effective bluff. And a sentence like "Pay the bill and collect the instrument within 10 days or I will pursue selling the instrument to collect the repair charges" would not threaten anything except "pursuing" possession, which is Harv's next legal step in any case.

The owner has several options:

1. Ignore the letter, in which case Harv is no worse off. Then, Harv knows he's done all he can and a legal process (or hiring a collection company) is his only recourse.

2. Pay for the repair--the best possible outcome.

3. Call Harv and work something out--an acceptable outcome.

4. Tell Harv that he doesn't have the money and to go ahead and sell it, in which case it seems to me Harv only needs to get that in writing to be become a sales agent for the owner, after which he can deduct his repair bill from the sales price.

The one option not available to the owner is to hold Harv legally liable for merely threatening to sell the instrument, and especially not to "pursue" selling the instrument. And consulting a lawyer would cost as much as just paying the bill.

Collection agencies dun deadbeats all the time, and threaten all sorts of things that they could never follow through on. And they do that without consequence. Writing a letter like this could not be considered harassment. The point is to get the deadbeat to pay the bill, not to explore legal theory or end up with all the money in a lawyer's pocket.

Rick "knowing of no law against demanding payment for services rendered" Denney

[Uncle Buck]

http://ftc.gov/bcp/edu/pubs/consumer/credit/cre18.shtm" target="_blank

[iiipopes]

([Sigh], before I comment, because this time I have to get technical, again, I have to say get your own lawyer, I'm not it. I'm not in practice, so don't call me privately about it. The following is not advice, just rants from my prior experiences.)

http://ftc.gov/bcp/edu/pubs/consumer/credit/cre18.shtm" target="_blank

Nope. Doesn't apply generally in this case. Our main man is not a "debt collector," for purposes of the FDCPA because that's not his main business. His main business is horn repair. So he doesn't have to put all the junk in the letter, "This is an attempt to collect a debt..." and so forth. One of my jobs in my "former life" I used to be corporate counsel for a moderate sized, new at the time, finance company that bought bundled commercial paper on the secondary market, mostly retail installment contracts for everthing from vacuum cleaners to automobiles, and even manufactured homes. I lived, breathed, and woke up in the middle of the night from nightmares spouting off the FDCPA and other laws and regs, especially including Reg Z, the monster reg that applies to all sorts of consumer credit, and especially since I set up the company's entire network of collection attorney referrals for the company nationwide, and prepared all the delinquent files to be shipped out to the appropriate local collections counsel for prosecution. It could get really sticky, because there is a buried clause in the definitions that talks about people who acquire the paper when it's not in default as also being exempt, but occasionally we'd have dealers who shuffled their files and tried to dump off on us in the package some loans that had already gone south. It gave the due diligence guys fits trying to reconstruct the chronology so they could be sure it was still "good paper."

Depending on the state laws where he is, however, there might be some general stuff that applies to everybody, even those collecting their own debts. And common law and statutory state claims of harassment might still apply in general if he leans on the guy too much. But that's way down the road.

The pertinent exception here: if a repairman does write a letter directly, the letter has to be clear it comes directly from the repairman for the actual work, supplies, and such the repairman did and supplied. A person can't "dress up" the letter as a "fake" collection agency letter, or make it look like it's from someone else, like a collection agency or lawyer, because then the FDCPA will apply. A regional hospital got nailed big time for that about twenty years ago.

Yeah, just don't call him every night at 1:00 a.m. trying to collect. That could get a guy in even worse trouble otherwise, and I'm not talking from a legal perspective, depending on how much it hacks off the horn owner to get called at all hours.

[sailn2ba]

Nuts! Send the guy the letter with bill and storage costs (from some reasonable date) . . . RRR and only HIMSELF to sign for it. Stick the horn in a garage someplace and see what happens. . There's GOT to be a statute of limitations in any state. Meantime, go to your community college or small business advisory and find out what the law is. Then relax and let it brew.

[pgym]

There's a theoretical legal discussion going on here. [snip] The point is to get the deadbeat to pay the bill, not to explore legal theory or end up with all the money in a lawyer's pocket.

Wrong.

The point is to get the owner to pay the bill WITHOUT THE OP EXPOSING HIMSELF TO UNNECESSARY LEGAL RISK AND IN A WAY THAT DOES NOT JEOPARDIZE HIS REPUTATION OR HIS LIVELIHOOD.

(And, incidentally, you're wrong about the OP not exposing himself to risk of legal action until he sells the instrument. I can spell out half a dozen concrete, significant civil AND CRIMINAL risks, off the top of my head, by which the OP could expose himself to simply from how the demand letter is worded.)

[RANT]
It is entirely too easy for the TNFJ—especially those who have little or no understanding of the potential ramifications, both legal and BUSINESS, of a course of action—who have NOTHING at stake in the situation or the outcome to pontificate about what the OP "can" or "should" do or what "we would do" if we were in his shoes, so it may be a theoretical legal discussion FOR YOU because you have nothing at stake in the outcome, but—guess what?

It's NOT a "theoretical" discussion for the OP.

This ISN'T an open-and-shut case about whether or not the OP deserves to be paid for the work he's done. He does. No one's disputing that. The question for the OP, which NONE of us on the TNFJ have to face, is whether or not he can AFFORD to pursue payment?

Regardless of how this situation is resolved, at the end of the day, the OP has to live and earn a living in the community where this is happening: something that neither you, nor I, nor any other member of the TNFJ has to do. No matter how long he's been in business, no matter how sterling his reputation in the community to date, a situation such as this has the potential to enhance, but a vastly greater potential to damage—perhaps even break—the perception of him and his business in the community. That puts his livelihood and his professional reputation on the line. (Ever see the damage an angry or vindictive customer with access to the 'Net or an unsympathetic "consumer advocate" TV reporter can do to trash a business's good name when a transaction goes awry?)

The fact is that even if he handles it exactly by the book and dots all his "I"s and crosses all his "T"s legally, it could still blow up in his face, and any lawyer worth a damn will admit that's the case; but if he fails to observe the expected social courtesies and conventions of dealing with commercial disuptes, much less the legal technicalities, he's pretty much ASKING for it to blow up on him. Either way, if it does blow up, the outcome ain't gonna be pretty.

The fact of the matter is, there ain't NO lawyer, living, dead, or as yet unborn, who can guarantee that a disgruntled customer won't go out and trash a business, but a competent lawyer CAN prevent a business owner from putting a gun to his own head or from handing the customer any more ammunition to trash him with. I've seen too many instances in the course of my practice where a business owner did something that was indisputably within his legal AND moral right to do and have it blow up in his face because he didn't have an eye on the larger picture and the possible consequences of his course of action, and I'll bet that iiipopes has seen it, too.

So I put it to you again: regardless of the fact that the OP deserves[/b] to be paid for the work he's done, and regardless of the fact that he has the legal right to pursue payment, can he AFFORD to pursue payment for this repair if the WAY he goes about collecting payment costs him a substantial chunk of good will and his good standing in the eyes of the community?

Factor that into your answer next time you''re tempted to pontificate from the peanut gallery on how someone "should" run his or her business.

[/RANT]

Pgym

[Rick Denney]

Factor that into your answer next time you''re tempted to pontificate from the peanut gallery on how someone "should" run his or her business.

[/RANT]

Pgym

The problem with your rant, of course, is that it assumes the common folk of this country want to live their lives in the debt of attorneys. Getting the advice you recommend could easily exceed the cost of the repair (even the cheap attorneys around here get $300 an hour, and charge an hour if their thoughts even wander in your direction). If that's the only reasonable recourse in a simple case like this, then why would anybody go into business?

If writing a letter saying, "this is what you owe me, please pay or I will pursue my legal options" exposes the owner to risk in Pennsylvania, I would move to a state less hostile to people in business. Maybe that's why some states never seem to prosper.

And, yes, that's a theoretical argument, too.

Rick "hoping it works out for Harv without enriching only the legal profession" Denney

[Todd S. Malicoate]

Wow. No offense intended pgym (and I do appreciate the thought you put into it and the thoroughness of your reply), but...

I have a small Brass repair shop a one man shop. I have a nice 20K dedented,new lacquer.But The ower has not picked it up. For over 6 months. About 3 Month ago his girlfriend called me and said .He would pick it up on the 20th of March.I got to talk to his grilfriend 7 days ago. She said would have him call me But No call.
Before I started the job I called the custormer , I gave him a price , and told him it would be finished in a week. He said go ahead with the job.I called him in week with the horn finished. and now its 6 month later. I am thinking about selling It I could uses the repair money. What do you other repair people do in a case like this?? Thanks Harvey

isn't a request for legal advice. The OP got exactly what he asked for - opinions from contributors to this forum. He can go to http://www.laborlawtalk.com or any number of other sites if he wants a debate on the subtleties of the legal issues (from a wide range of people from qualified to irresponsibly ignorant).

Simply doing business of any kind is "exposing" yourself to legal action. Every business decision made has potential legal consequences - positive and negative. That fact doesn't mean that common sense has no place in such decisions, nor does it mean that the services of a legal professional should be required every time a decision must be made. In this case, common sense would dictate that some effort must be made to contact the customer, remind his of his obligation to pay for the repairs, and present some sort of consequence if he does not pay in a timely manner.

For the record, I agree most with bloke's suggestion on page one (except for the part about selling it to Joe ). That said, I still wouldn't sell it without some sort of response...hopefully just the threat of selling it will take care of the situation. I have a hard time seeing how merely threating a customer who hasn't paid for completed work for 6 months with the sale of their instrument would cost the OP any business in the future at all...any reasonable person would agree with him. Would someone looking for horn repair really want to seek out only the repairman who just lets completed work sit around his shop, unpaid for? C'mon now.

Todd, not buying the potential repercussions angle of the threat to sell

[Donn]

If that's the only reasonable recourse in a simple case like this, then why would anybody go into business?

From my very remote perspective, this is a little like the legal problem practically everyone faces at some point, testate. The key to losing it all to the lawyers is to state a legally enforceable policy beforehand, if you're a repair shop, or draw up a sound will beforehand, if you're an individual who doesn't expect to live forever. Not that we would like to see anyone get gouged in any case, but this is how we provide businesses and estates an opportunity to control legal costs.

And there's room for improvement there. I've wondered if some drugstore or office supply chain could spend a few bucks to draw up a couple of generic fill-in-the-blank wills (and same for durable power of attorney, etc.) that meet local state requirements, and a store policy, get a clerk in each store fixed up with a notary public stamp, and go into the legal business 3-7PM Tuesdays. I have no idea how many people actually die without having made a will, but I think enough that it's a gross waste of time for everyone, and it's a shame that we can't provide a simple standard option for those who would rather not pay a lawyer for more a detailed will.

Probably the same for shop owners - it's easy to say "you should have a stated policy", but you can't really arrive at a guaranteed-to-be-legal policy without hiring a lawyer to draft it? That's a shame, if the same fairly obvious wording would work for auto shops, dry cleaners, etc. all over the state.

[Rick Denney]

Probably the same for shop owners - it's easy to say "you should have a stated policy", but you can't really arrive at a guaranteed-to-be-legal policy without hiring a lawyer to draft it? That's a shame, if the same fairly obvious wording would work for auto shops, dry cleaners, etc. all over the state.

One of the problems we face as a mature society is that we cede bigger and bigger portions of our commercial lives to attorneys. I mean this as no offense to attorneys--there are zillions of really complicated questions that need their specialized knowledge. But we, as a society, really should make it possible for normal people to conduct normal daily business without being afraid to do anything without having input from lawyers. Normal daily business seems to me to include requesting payment from a deadbeat customer.

The more of these routine business activities have to be dictated by the legal profession to avoid risk, the harder it will be for normal folks just to conduct business. Every time some transaction goes bad, there is the desire to prevent that problem from occurring again. So, we build up a set of laws with page after page of protections against a whole slew of such possibilities, adding to the list without limit, and the result is so complicated that half the time even legal advice is not conclusive. Yet there is no counter-balancing influence to simplify laws so that normal people can conduct normal business without some significant percentage of what they might need to feed their families going to the legal profession. The motivation to protect people against all possible risk is usually rooted in good intentions, but at the end of the day the only rich guy in many small towns is the local attorney. That seems to me to indicate a lack of balance.

I remember writing a contract for the conductor of a community orchestra, trying to cover every possibility. The folly of that got exposed by a crusty old businessman on the board who asked me if we were prepared to sue no matter what happened. I said, no--we would never have the budget to sue someone. Then, he asked what our exposure was--and the answer was very little, except for any gross negligence we might demonstrate. He said, then write a contract that addressed the negligence issue, plus normal duties, and leave it at that. A six-page document turned into half a page.

But all that is theoretical, too, and no help to Harv.

Harv got his answer to this extent: The tuba is not his to sell without going through due process.

Rick "but the money owed for the repair is his to pursue" Denney