Suggestion of Wording on an Offer

[Jd1]

Originally Posted by David_Old_Jersey

Whether these new terms are legally enforceable or not, nonetheless IMO they do still serve a useful purpose......if the Vendor can also spot $5k of fixes required, then he has the opportunity to simply mention them early doors. In practice I would probably already know at least a couple of things that a prudent / honest Vendor would mention (even if only "just in case" / to save future argument or surprise), and if he failed to disclose them I probably would not sign the contract let alone pay for a survey as a good indicator that Vendor is not straight.

That is basically the point here. It would be nice if a 'you knew about this and tried to hide it' clause would be easily enforced but it isn't and I am fully aware of that. Sometimes (if the vendor got a quote for example) these clauses are enforceable. Sometimes the vendor honestly didn't know and that is fine too and comes under Caveat Emptor. I just don't like to be intentionally screwed (been there, paid my educational dollars, hopefully learned a little bit).
Time will tell ..... first the vendor has to accept the offer

[barnakiel]

Any owner that agrees to sign c) is a moron.

b.

[David_Old_Jersey]

Originally Posted by barnakiel

Any owner that agrees to sign c) is a moron.

b.

OP is the buyer

(see other thread where I am suggesting to the Vendor that the Buyer sign over his first born as a deposit ).

[Ex-Calif]

It appears you are asking for a warranty disguised as a full disclosure clause.

As a seller I would have a hard time waranteeing a used boat.

I would agree with disclosure. The problem is if it was a 30 y/o boat with previous owners, I may have no clue about orevus repairs or damage.

[Jd1]

Originally Posted by Ex-Calif

It appears you are asking for a warranty disguised as a full disclosure clause.

As a seller I would have a hard time waranteeing a used boat.

No, not at all. A warranty implies coverage of stuff that will break once the new owner takes possession and can obviously not be given (unless the vendor is compensated sufficiently for the risk he is taking)

Yes, the current owner might not know what the previous owner experienced but if he knows and if it affects the potential new owners enjoyment of the boat, it should be disclosed.

[foggysail]

Surveys????

Often I read that a survey is recommended. Really??? I don't know how to get insurance without having a survey done. But maybe those who opt out of a survey plan to not insure their boat ---------

Foggy

[David_Old_Jersey]

Originally Posted by foggysail

Surveys????

Often I read that a survey is recommended. Really??? I don't know how to get insurance without having a survey done. But maybe those who opt out of a survey plan to not insure their boat ---------

Foggy

Over here you can get an Insurance Survey - which costs probably half a buying survey, and is intended to say nice things rather than vice verce.

[Ex-Calif]

Originally Posted by Jd1

No, not at all. A warranty implies coverage of stuff that will break once the new owner takes possession and can obviously not be given (unless the vendor is compensated sufficiently for the risk he is taking)

Yes, the current owner might not know what the previous owner experienced but if he knows and if it affects the potential new owners enjoyment of the boat, it should be disclosed.

We have a big risk of bogging down in semantics but...

Read Stumbles post.

A declaration that things are so may or may not be true. I can declare the boat is blue even if in fact it is white.

If I warrant that the boat was never used in charter then I am promising. However once there are stipulations or warrantees, this opens the question of remedies. In other words if the warranteed statement turns out to be false, then what is the buyer's remedy? Correct the fault? Refund?

Statement c is most problematic. As a seller under what expertise or authority do I have to warrant that the boat is seaworthy? As a seller I would not agree to c and as a buyer it seems pointless to ask for it. What constitutes seaworhtiness?

In aviation airworthiness is defined under manufacturers continued airworthiness instructions and FAA regulations. Nothing like that for boats.

And regarless of declarations or warrantees the remedy lies in court. At which point it is expensive for buyer and seller and becomes a crap shoot.

[David_Old_Jersey]

Originally Posted by Ex-Calif

And regarless of declarations or warrantees the remedy lies in court. At which point it is expensive for buyer and seller and becomes a crap shoot.

I understand where you are coming from - but for me the value of the contract is not after the deal has been completed (i.e. cash paid in full and boat now bought and in my name)........and it turns out that not everything was as claimed, in the contract or otherwise. For me that definately falls under Caveat Emptor (aka hard cheese!), whether or not a legal remedy is potentially available. As you say, going to court is expensive and a crap shoot.......but the good news is that is true for both parties .

For me where the contract and these clauses work is for the short period just before signing (by gathering the info I need to help me sign) to after the Survey has been completed or abandoned half way (so I have extra fuel to claim a bad survey to refuse the boat - in practice that can already get done on pretty much any basis, especially if helped by the Surveyor - even if the real reason is the wife has now decided that she does not like the curtains ).

In practice all that probably a couple of weeks (+ / -). At that time I only have a deposit at risk (and for me that wouldn't be 10%! - but I appreciate that for others it might be)....the risk being both total loss of deposit, or having to go to court myself to try and reclaim it.

Obviously the Vendor can go to court and try and force a sale (under the agreement) but, as you say, that is an expensive crap shoot. and if the boat is basically ok, he will have no problem selling her (and therefore more likely to decide against court) - if bad (and especially if undisclosed) then more likely to fail at court (crapshoot notwithstanding).

Regarding the Seaworthy condition, I added the bit about the "full sea-trial" to reduce the scope for argument ("I never said she could tackle Cape Horn in Winter - this afternoon" )....and to help focus the Vendors mind that the boat had to be good to go.....or to disclose early doors why not - rather than it coming as a later surprise ("you mean the sea-trial involved the boat leaving the harbour?")......really only intended to make clear that the boat was expected to be able to leave the harbour under power and the sails to then go up (with everything connected to that working, in some sort of fashion) - and during the seatrial not to sink ....seatrial really to make sure that is all true, and whether true enough to buy (engine runs, but have heard healthier 90 a day smokers after running for a bus!.......the mainsail does raise - and very quickly , mostly due to being hoisted on bungee cord ).


For some reason I seem to have adopted this thread and that despite my best of intentions not to go all internet lawyer especially as I am aware that more than one or 2 real lawyers on CF .......but I feel comfortable chipping in, both as OP seems sensible enough to take internet "legal advice" for what it is worth (nadda!) and also as I am a long way away from him - so when he loses all his money / buys a boat with no keel he can't easily hit me with an axe .....which fits in with my overall approach to deals, bear the practical in mind as much as the legal.

Would be nice to hear how the offer and then deal goes - especially if badly .

[youmeandthed]

the satisfied with sea trial, or satisfied with survey results is your get away clause, but once you sign the dotted line on buying a sailboat it is yours. Do your due diligence before hand is my suggestion.

Make the contract clean and the deal fast and you can get a better price, in the end that's probably going to be of the most benefit.

[denverd0n]

Originally Posted by David_Old_Jersey

...for me the value of the contract is not after the deal has been completed (i.e. cash paid in full and boat now bought and in my name)........and it turns out that not everything was as claimed, in the contract or otherwise. For me that definately falls under Caveat Emptor (aka hard cheese!), whether or not a legal remedy is potentially available.

That's fine for you, but if it is written into the contract, then it IS legally binding, and it IS a potential basis for a lawsuit. The seller would be an idiot to take your word for it that you don't really intend to sue over this, just because it happens to be in the contract.

I have to agree with those who say the word "seaworthy" is problematic. What exactly does that mean? Look at the various threads we've had here. It means something different to everyone who uses it. There is no standard definition. As such, a prudent seller has no choice but to look at that word as a lawsuit waiting to happen.

As a seller I would be happy to disclose any serious problems that I'm aware of. I would not sign anything that says the boat is "seaworthy" though. No way.

[David_Old_Jersey]

Originally Posted by denverd0n

As a seller I would be happy to disclose any serious problems that I'm aware of. I would not sign anything that says the boat is "seaworthy" though. No way.

I have no fundamental problem with a Vendor refusing to commit to that (or to anything else) - if they came up with a rational reason for not doing so (including along the lines you suggest) I might even sign the contract regardless myself. or I might not .

Certainly I would think long and hard about going ahead with the purchase - maybe settle on a "compromise" by making the Seatrial the first step and ASAP (and before any contract is signed) and if the Vendor says no to that approach I would read that as the boat is not seaworthy, and move on accordingly.....with me accepting that the boat may well be seaworthy, at least enough for a seatrial. But Vendor not willing to either commit to that (if true - what is the problem?) or to prove it (sufficiently to me, enough to remove that from the Contract) by releasing the boat from the harbour on short notice moves the whole deal into too much of a PITA territory.

Deals is all about choices and folks settling on what works for each - or agreeing (or simply finding out!) that things don't, and for that ASAP works best.

[barnakiel]

Originally Posted by David_Old_Jersey

OP is the buyer

(see other thread where I am suggesting to the Vendor that the Buyer sign over his first born as a deposit ).

Yes. Apparent wording problems everywhere ;-)

Want warranty? Buy new.

b.

[Jd1]

Originally Posted by David_Old_Jersey

Would be nice to hear how the offer and then deal goes - especially if badly .

The offer was refused with no counter, I do not know if it was an issue with the additional clauses in the contract or the $$$ offered (about 20% below asking). The boat has been on the market for a year and was shown on at least one boat show that I know of.

[youmeandthed]

They don't really want to sell their boat..

Being from BC, I recommend you buy a boat elsewhere. Owners there have a skewed idea about how much a boat is worth.