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Listening: a conversation between a client and her attorney (1)

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Ms Witherby recently signed a contract to buy a mobile home. When the mobile home was delivered, she was not happy with it.

 

W: Hello? Mr. Adams? This is Dorothy Witherby.

A: Ah, yes, Ms. Witherby. I got your message. So you’re not happy with the condition of the mobile home you’ve recently bought?

W: That’s right. It’s nothing like the one I saw in the store.

A: Okay, why don’t you tell me the story from the beginning?

W: Well, a few months ago, I was thinking about buying a mobile home, and I saw an ad for Sporting mobile homes on television. The homes in the ad were used1, but they looked like new.

A: Uh huh.

W: So I went to a Sporting store, and the sales associate showed me a beautiful mobile home. It had new carpeting, two air conditioners and a kitchen with a modern stove, refrigerator, and microwave. Everything about the home was perfect, and the price was right, so I decided to buy one.

A: Did you sign a contract that day?

W: Yes I did.

A: Was that a contract to buy that particular mobile home—the one you saw?

W: No, that was just the model. But the sales associate told me mine would be as nice as the model—or even nicer.

A: He used those exact words?

W: Yes, he did.

A: So you never actually saw the unit you were buying?

W: Uh…no.

A: Right, so then what happened?

W: Okay, so I signed the contract and gave him a check2. But I was very disappointed when they delivered the mobile home last week.

A: Why was that?

W: It’s not anything like the model! The carpets are dirty, and the stove and refrigerator are at least 10 years old. The air conditioners are really small, and they don’t even work half the time. And the electricity has failed twice! An electrician told me that I can’t use the air conditioner and the microwave at the same time because the electrical system can’t handle it.

A: Did you ask the company to fix the problems? Companies usually have a right to cure any defects.

W: I’m sorry, cure any defects?

A: It means that they have the right to fix the problems instead of giving you a refund or giving you another mobile home.

W: But I’ve called them several times, and they’ve never offered to fix anything! Now they’ve stopped taking my calls. I’m fed up with it. I don't want the mobile home, I just want my money back.

A: I’m sure you do. OK, if they don’t cure the defects, that may discharge your obligations under contract. If that’s the case, you’ll be released from the contract and should be able to get your money back.

W: What??!! Do you mean that I might not get my money back?

A: Yes, that is one possibility. When you sign a binding contract, you have a legal obligation to do everything you agreed to do in the contract.

W: Well, then it should be easy. I paid them, and they cheated me!

A: Yes, but unfortunately the discharge of obligations under contract is not always as simple as it might seem. Did the sales associate tell you that your mobile home would be sold as is? In other words, that you would accept the mobile home with no changes in its condition?

W: Yes, I think that’s what he said. And he also made a point of saying that mine would be the same as, or even nicer than, the model. And the model was beautiful. It wasn’t defective, unlike like the one that I was sent!

A: I see. And did you read the contract carefully before signing it?

W: I tried to read it, but I couldn’t understand most of it. The sales associate told me not to worry, that it was just a formality. He said that nobody ever reads the contract-- they’re just standard.

A: So, they were using boilerplate provisions? That is, a standard contract with standard language, nothing unusual or special about it.

W: Yes, that’s what he said.

A: Okay, I think I understand the issues. But I need to read the contract before I can determine anything. Can you fax it over to me? Or put a copy in the mail?

W: Sure, I’ll fax it over right away.

1 UK: second-hand
2 UK: cheque

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