At a sports card show in 1995, James Fitl of Omaha, Nebraska, met Mark Strek, do

Question

At a sports card show in 1995, James Fitl of Omaha, Nebraska, met Mark Strek, doing businessas Star Cards of San Francisco. On Strek’s representation about the condition of a certain baseballcard, Fitl bought it from Strek for $17,750. In May 1997, Fitl sent the card to Professional SportsAuthenticators, a sports-cards grading service, which told Fitl that the card was ungradable. Fitlcomplained to Strek, who replied that Fitl should have acted within “a typical grace period for theunconditional return of a card, ... 7 days to 1 month” of its receipt. ASA Accugrade, Inc., anothergrading service, agreed that the card was ungradable. Fitl filed a suit in a Nebraska state courtagainst Strek, seeking damages. The court awarded Fitl $17,750, plus his court costs. Strek appealed.The Nebraska Supreme Court affirmed. In the circumstances of this case, notice of a defect in thegoods two years after their purchase was reasonable. Fitl had reasonably relied on Strek’s represen-tation that the goods were “authentic,” which they were not, and when their defects were discovered,Fitl had given a timely notice. “[T]he policies behind the notice requirement, to allow the seller tocorrect a defect, to prepare for negotiation and litigation, and to protect against stale claims at a timebeyond which an investigation can be completed, were not unfairly prejudiced by the lack of an ear-lier notice to Strek. Any problem Strek may have had with the party from whom he obtained thebaseball card was a separate matter from his transaction with Fitl, and an investigation into thesource of the altered card would not have minimized Fitl’s damages?

Suppose that Fitl and Strek had included in their deal a clause requiring Fitl to give notice of anydefect in the card within “7 days to 1 month” of its receipt. Would the result have been different?Why or why not?

Explanation / Answer

If both the parties to the contract has inserted a provison which is enforceable, then there is possibility for getting the different result. In that situation, Fitl should need to act quickly to discover the defects sooner.

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