When is a deal binding?

**Onward** · 01-26-2008, 03:54 PM

If I exchange numerous e-mails with a domain owner and we come to an agreement on a price (and who is going to handle the transaction/escrow fees) and all negotiation is documented...does the e-mail correspondence with an agreement reached signify a legally binding contract if I want to go the distance and take it to court if the domain owner then decides to not sell or sell to someone else?

Does anyone have and case law or experience on this topic? Thanks.

**Acro** · 01-26-2008, 04:18 PM

Unless an offer contains the terms "without prejudice", it should be binding. However, it's all a matter of how far does the losing party want to legally pursuit the matter.

**jpf1000** · 01-26-2008, 04:29 PM

i am dealing with something just like this. I bought a domain on a popular auction site and the seller had it listed somewhere else about 5 days later. I made the escrow payment right away and the seller didnt want to transfer until auction was done. The second auction yeilded much higher results for the seller so hence he doesnt want to go through with our deal.

**INVIGOR** · 01-26-2008, 04:30 PM

You can frame up an agreement till you're blue in the face, people back out all the time. domain law is highly uncharted and in a sense unregulated. What's the jurisdiction, what constitutes a contract, why did he back out, etc, etc. Emails can easily be changed, verbals without witnesses are worthless, his word ur word deal, etc. Unless you just really, really wanna fuss over one name...move on to the next one.

**jpf1000** · 01-26-2008, 04:45 PM

in any other type of business a contract is binding... I think if one pressed it would win in court.
I just cant see why people cant keep their own word

**DomainMagnate** · 01-26-2008, 04:52 PM

Originally Posted by Acroplex

Unless an offer contains the terms "without prejudice".

Theo, could you expand on this?

**INVIGOR** · 01-26-2008, 04:54 PM

A lot of things are binding... Enforcement of the agreement is where it becomes tricky. You may win on paper, doesn't mean you'll get squat. You can waste a LOT of time "being right" when you could just move down the road. Again, so you take it to court. Where? Where you live? He lives? Where the registrar is? What laws apply? If you've got deep pockets and a lot of money for a "pressing" a win in court, ok. Just remember, after you win, you also need to enfore the judgement, which is just another contract. Good luck.

**jpf1000** · 01-26-2008, 05:01 PM

i really think the problem lies with people not keeping their word. The problem is NOT how to take him to court etc etc. Do your deal making upfront and be done with it. If ou dont want to sell something then dont sell it.

pretty simple

not to mention karma is a *****

is their a "lis pendens" for domains? I mean the person that bought the domain. If i already had a contract doesnt that put them in the middle as well?

**Bill Roy** · 01-26-2008, 05:15 PM

Unfortunately wmloz does have a point, winning in court is not the last hurdle, enforcing the courts decision is.

More unfortunately as at the present time this business is being exploited by those who shall we say are less than desirable as far as doing business deals with are concerned. Only this week a member was banned from this very forum for not upholding the high business ethics that are more and more being sought by the members here, and rightly so.

In this business more than any other in the modern world we have to be able to trust the word of those we are dealing with as very few of us actually 'know' one another.

As for the case mentioned, if the deal was agreed in writing (by email) by both parties then the contract has been formed.

Michael, in the UK legal system if a document or proposed meeting, etc. takes place under 'Without prejudice' rules it means that the contents of the letter or meeting cannot be brought up as evidence in court, basically any such letter or meeting occurs to just sound out the other side. Although quite often such letters/meetings result in an amicable settlement outside of the court.

**INVIGOR** · 01-26-2008, 05:24 PM

Let's assume you proceed with this, one simple question, what jurisdiction would you pursue your case in?

**jpf1000** · 01-26-2008, 05:28 PM

the jurisdiction would be the sellers jurisdiction. I would be in fact prusuing the "seller" so i would play ball in his home turf.

i am a man of my word and i expect the same back.

i also think it helps that i have a good friend in sellers jurisdiction that doesnt charge me for legal work.

onward i think you should try to work it out with him, if he doesnt want to do that then you have no other choice but to proceed

**INVIGOR** · 01-26-2008, 05:41 PM

Ok, so where is he from? Is he at least from the US?

**jpf1000** · 01-26-2008, 05:43 PM

yes in the states.

we will see if we can work something out.

**Onward** · 01-26-2008, 08:47 PM

Originally Posted by wmloz

Ok, so where is he from? Is he at least from the US?

Thanks for the responses...it really helps. He is in the states...

I found out tonight he wants more money than we originally agreed upon...it was 15% more than we agreed on...

I will let you all know how it turns out.

**petrosc** · 01-27-2008, 02:20 AM

when offer is made and offer is accepted, then it is binding for both of you. Yeah wmloz is right however, in theory it is easy but to enforce it is another story.

You can however mention it to him, maybe that will scare him and he'll finish the deal

**Raider** · 01-27-2008, 07:00 PM

Originally Posted by Onward

I found out tonight he wants more money than we originally agreed upon...it was 15% more than we agreed on...

I will let you all know how it turns out.

Another case of sellers remorse and greed..... If the domain is a steal at the original price, try to negotiate the deal as best you can, letting him know you dont have much money... If it's not bargain, I wouldn't offer him anymore than you originally agreed.

Also, let him know what you think of him backing out of the deal and bumping the price, otherwise he may do it again.

Sorry Petros, I have to disagree. I would not bring up any legal threats, scare tactics rarely work.

**Acro** · 01-27-2008, 07:08 PM

Originally Posted by Michael_Goldman

Theo, could you expand on this?

See the second section (Common Law)

the term "without prejudice" is also used in the course of negotiations to indicate that a particular conversation or letter is not to be tendered as evidence in court.

The chap who made the offer containing these words (and then walked away from it) was from the UK. sedo banned him after he wasted 110 days of my time faking lost payments via Paypal and Bank wires.

**petrosc** · 01-28-2008, 06:03 AM

Originally Posted by Raider

Sorry Petros, I have to disagree. I would not bring up any legal threats, scare tactics rarely work.

Hmm.. you may be right no this Eva, can't argue on that, but I did not suggest to threat the other party, rather than just mention to him that backing out of a deal is against the law

**acronym007** · 01-28-2008, 06:20 AM

IMO, regarding a domain buyer your never or rarely in a good position to go to court. Your best bet is to pay more for the domain, to even "overpay" if you really want the name. The fees in court alone will not justify the action. The seller has too many options and defensible positions, not to mention time lengthening actions. In the end what would you win? The domain and at what final price? If you add the time and total court costs etc...You want the domain, pay the price that's just my take. You can legal issues all day but at the end of the day it's a business deal all about money.

IMO, 15% is a steal, jump on it. Domain prices are increasing annually, if the domain is good you should see your return in due time.

I just don't think court should be a viable option for the average domainer. Unless we're talking about xxx,xxx domains and or business deals the buyer should either overpay or walk away.

**Onward** · 01-28-2008, 08:45 AM

Well, have followed the advice of Acronym and Raider so....I agreed to pay the additional cash he wanted...he returned an email saying now the sale is "a 100% done deal" I initiated an escrow yesterday...he has yet to confirm the escrow and I have not heard back from him yet.

This business is really frustrating sometimes...

I have talked with an attorney who tells me to be patient and wait for the escrow process to either be confirmed or ignored...if ignored...the attorney believes the correspondence I have had with the owner is pretty rock solid, but can take lots of time and money to fight...an estimation would be at least $25k to fight it if the guy did not buckle with some initial legal correspondence.

I think my only real option will be that this person keeps their word...this second time around...and follows through. I will let you all know what happens.