Based on the below reading can there be relief for: fundamental breach of contra

Question

Based on the below reading can there be relief for: fundamental breach of contract and fraud

Thank you for your patience and thanks to you for your service on this jury. We are here to representing the plaintiff Mr. Alex. We are here seeking relief in this case on two grounds: fundamental breach of contract and fraud; we claim the defendant Ms. Abigail is liable for damages caused to Mr. Alex. The defendant placed an ad to sell her “purebred” puppy. My client accepts the offer and pays her by mailing a check. Later you see your honor and jury Ms. Abigail has a change of mind about selling the puppy; she cashes the check (accepting the offer/contract) and then decides she cannot part with the dog and commits fraud by attempting to pass another dog (from the pound) off as the purebred (that she initially advertised). Ladies and gentleman of the jury, Mr. Alex is a hardworking, honest, and law-abiding citizen. At the conclusion of this trial, I hope that in the interest of justice you will find that the defendant is responsible for breach of contract and fraud.

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Chain Of Events

Abigail decides to put her litter of purebred Chihuahua puppies for sale, the ad stated “ purebred toy breed puppies for sale--$100 per puppy.”

My client Alex accepts the offer and mails the check for $100 check to box 456 with instructions to send the information as to when he can pick up his puppy to his home Abigail has a change of heart about selling the puppy and decides not to sell it but does indeed cash the check. By law she ( accepts the offer/contract signed )

? Abigail breaches the contract ( decides she cannot part with the dog ) and commits fraud by attempting to pass a dog she purchases from the poundoff as the purebred (that she originally advertised).

? My client Alex has the right to sue Abigail for damages and fraud

? My client is an animal lover and will not even consider parting with this dog because he believes that the dog has an emotional connection with him and it will cause the dog emotional damage if he parts ways with this dog.

Abigail decides to put her litter of purebred Chihuahua puppies for sale , the ad stated “ purebred toy breed puppies for sale--$100 per puppy.”

Abigail is soliciting offers for Purebred puppies. This is not an offer in itself.

we claim the defendant Ms. Abigail is liable for damages caused to Mr. Alex.

What are the damages?

The defendant placed an ad to sell her “purebred” puppy. She did not sell a pure bread puppy. She sold a mutt

My client accepts the offer and pays her by mailing a check.

This is not an acceptance, this is an offer that can be accepted or refused by Abigail.

Later Ms. Abigail has a change of mind about selling the puppy

At this point, there is no acceptance of the offer at this point and Abigail is not obligated to sell the puppy

Abigail cashes the check (accepting the offer/contract) and then decides she cannot part with the dog

Once Abigail cashes the check, it is an implied contract and she has accepted the offer.

She commits fraud by attempting to pass another dog (from the pound) off as the purebred (that she initially advertised).

This would constitute fraud, Except when Alex is not willing to return the dog, he created a new implied contract that he is happy with his purchase.

My client Alex accepts the offer and mails the check for $100 check to box 456 with instructions to send the information as to when he can pick up his puppy to his home

This is an innacurate Statement in that there was no offer made until Alex makes the offer by sending the check. Only Abigail can accept Alex’s offer.

Abigail has a change of heart about selling the puppy and decides not to sell it

Until acceptance of the offer is made, Abigail has the right to do this.

Abigail cashes the check. By law she ( accepts the offer/contract signed )

This constitutes acceptance of the offer.

Abigail breaches the contract ( decides she cannot part with the dog ) and commits fraud by attempting to pass a dog she purchases from the pound off as the purebred (that she originally advertised).

Breach and Fraud are separate issues.

A breach is the failure to act or perform in the manner called for by the contract. This contract called for the exchange of money for purebred puppies. The puppy supplied was not purebred.

Fraud is the making of a material misrepresentation (or false statement) of fact with (1) knowledge of its falsity or reckless indifference to its truth, (2) the intent that the listener rely on it, (3) the result that the listener does so rely, and (4) the consequence that the listener is harmed (pg 273) The first three conditions exist, but The fact the Alex won’t return the “fraudulent” dog after 6 months leaves the fourth condition of the listener being harmed makes fraud unenforceable.

My client is animal lover and will not even consider parting with this dog because he believes that the dog has an emotional connection with him and it will cause the dog emotional damage if he parts ways with this dog.

When it is established that there has been a waiver of a breach, the party waiving the breach cannot take any action on the theory that the contract was broken. The waiver, in effect, erases the past breach. The contract continues as though the breach had not existed. The waiver may be express or it may be implied from the continued recognition of the existence of the contract by the aggrieved party. When the conduct of a party shows an intent to give up a right, it waives that right. Alex, by not returning the dog, waived the breach and accepted the terms and waived the right to a breach.

Explanation / Answer

Based on this case it can be decided though there is fundamental breach of contract and fraud by Ms. Abigail when she accept the order and deliver the wrong puppy for which contract was not made. The 4th condition is not satisfying by Alex because he didn't return the dog after 6 months. There was no fraud in this case because damage was not done to the aggrieved party.First three conditions do exist in this case, so it will be sufficient to prove fundamental breach of contract and fraud.

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