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tcope
Premium Member
join:2003-05-07
Sandy, UT

tcope to javaMan

Premium Member

to javaMan

Re: I got a refund check and now they want the money back

said by javaMan:

There is a fault in your analogy. And it is the underlying assumption of original intent. Any gift that is given is done freely with the knowledge and consent of the giver. In other words, if I give you a present on your birthday, I do it with the foreknowledge and intent that you should be the recipient. If, after receiving the gift, I then decide I want it back then, yes, you are under no moral or legal obligation to give it back. That is not the case here. So your analogy does not apply.

Very well could be but it's also in the eyes of the recipient. Any "giver" could always claim it was a mistake. But I'd betting the court system would apply that claim against what the recipient would have/should have thought. If the OP was given $1,000,000 would he have thought he was entitled to it? If the OP was given $200 would he have thought he was entitled to it? The court system is just not going to allow anyone to simply take back what they have freely given whenever they want. Think about that. We'd have a line around the court house every day of people wanting things back!

But we also have the issue of this being a civil matter and not criminal (as some people would like to think by calling this "theft"). How many people think a store is going to spend time/money to get that $200 back?

javaMan
The Dude abides.
MVM
join:2002-07-15
San Luis Obispo, CA

2 edits

javaMan

MVM

said by tcope:

said by javaMan:

There is a fault in your analogy. And it is the underlying assumption of original intent. Any gift that is given is done freely with the knowledge and consent of the giver. In other words, if I give you a present on your birthday, I do it with the foreknowledge and intent that you should be the recipient. If, after receiving the gift, I then decide I want it back then, yes, you are under no moral or legal obligation to give it back. That is not the case here. So your analogy does not apply.

Very well could be but it's also in the eyes of the recipient. Any "giver" could always claim it was a mistake. . .

Which of course is how you've framed your analogy. I'm only pointing out that a gift, in order to actually be termed a gift, needs to originate with intent of the giver not the receiver. And you're right, the giver could always make that claim. However, if the giver made it clear in some way to the recipient that it was a gift then the giver has no right to ask for it to be returned. If I receive your Christmas present all nicely wrapped and labeled to me and it turns out that you mislabeled the iPod you meant for your wife, what should I do as the recipent? Should I say, well you must have meant the gift for me because it had my name on it? As the recipient, was it really a gift?
tcope
Premium Member
join:2003-05-07
Sandy, UT

tcope

Premium Member

I'd agree 100% with that.
Mce Saint
Premium Member
join:2007-10-03
Saint Louis, MO

Mce Saint to tcope

Premium Member

to tcope
quote:
Very well could be but it's also in the eyes of the recipient. Any "giver" could always claim it was a mistake
Fortunately, the issue isn't what people can *claim.* I can claim that I'm the King of England. Unfortunately, I cannot prove it. And proof is not just a matter of what people say their intent was, but what the surrounding circumstances would indicate to reasonable people.

If I know you - and if we are friends - and I show up at your birthday party and give you a check for $200, I certainly may later claim that it was all a "mistake." But - absent any other facts - my claim of a "mistake" is not likely to sway a reasonable jury or judge.

Likewise, most businesses are NOT in the habit of issuing random "gifts" of $200 (by check or cash) to former customers. Additionally, you ignore the fact that the business issued the check in question as a "refund" and stated that much - which clearly indicates that it was NOT a gift as far as they were concerned. Therefore, a claim made said business that it issued you the check by "mistake" - and not as a "gift" - is likely to be believed by a reasonable jury or judge.

Again, the matter is NOT - as you keep wanting to assert - that it was "freely given," but rather the INTENT that accompanied that which was "freely given."

Intent is NOT just a matter of subjective point of view ( i,e,that of the giver or the recipient), but can also be inferred from the surrounding facts and circumstances. In this case, the giver did not intend a gift (subjectively stated) and the facts do not reasonably support that it was intended as a gift as the check was marked or accompanied by paperwork stating that it was a "refund."

By definition, a "refund" is NOT a gift, but a return of money due to the customer. As the OP was not due any money as a "refund" he cannot reasonably treat the check as a "gift."
Mce Saint

Mce Saint

Premium Member

said by Mce Saint:

quote:
Very well could be but it's also in the eyes of the recipient. Any "giver" could always claim it was a mistake
Fortunately, the issue isn't what people can *claim.* I can claim that I'm the King of England. Unfortunately, I cannot prove it. And proof is not just a matter of what people say their intent was, but what the surrounding circumstances would indicate to reasonable people.

If I know you - and if we are friends - and I show up at your birthday party and give you a check for $200, I certainly may later claim that it was all a "mistake." But - absent any other facts - my claim of a "mistake" is not likely to sway a reasonable jury or judge.

Likewise, most businesses are NOT in the habit of issuing random "gifts" of $200 (by check or cash) to former customers. Additionally, you ignore the fact that the business issued the check in question as a "refund" and stated that much - which clearly indicates that it was NOT a gift as far as they were concerned. Therefore, a claim made said business that it issued you the check by "mistake" - and not as a "gift" - is likely to be believed by a reasonable jury or judge.

Again, the matter is NOT - as you keep wanting to assert - that it was "freely given," but rather the INTENT that accompanied that which was "freely given."

Intent is NOT just a matter of subjective point of view ( i,e,that of the giver or the recipient), but can also be inferred from the surrounding facts and circumstances. In this case, the giver did not intend a gift (subjectively stated) and the facts do not reasonably support that it was intended as a gift as the check was marked or accompanied by paperwork stating that it was a "refund."

By definition, a "refund" is NOT a gift, but a return of money due to the customer. As the OP was not due any money as a "refund" he cannot reasonably treat the check as a "gift."

By the way, as an addendum to the above, let me just say this notion that because something was "freely given" - standing alone by itself (absent intent, knowledge of facts, etc.) - makes it "legal" is wrong.

In the classic "pigeon drop scam," the victim "freely gives" the con artists his/her cash . . . under, of course, a mistake belief as to their identity and completely unaware of their intention to rip him/her off.

The "pigeon drop scam" is fraud and prosecutable as such. The fact that the fraudsters relied on the victim's cooperation - in lieu of a gun - to get their cash, doesn't make the scam legal. Nor does it mean that the con artists received a "gift" from the victim.
tcope
Premium Member
join:2003-05-07
Sandy, UT

tcope to Mce Saint

Premium Member

to Mce Saint
said by Mce Saint:

Likewise, most businesses are NOT in the habit of issuing random "gifts" of $200 (by check or cash) to former customers.

But the same laws apply. There is not one set for friends and another set for businesses.

My main point along that line of thought is the receivers point of mind and state. If the OP was freely given something he/she should have some sort of standing to consider those fund his/hers. The OP could have thought he was entitled to the money and spent it... or made decision based on having those funds. Is it then right to screw over the OP because the business made a "mistake" and now want their money back? There are two different views that the legal system will consider in this matter.

Part of the problem is that some people want to combine the moral value and legal value all into one. It does not work that way.
said by Mce Saint:

Additionally, you ignore the fact that the business issued the check in question as a "refund" and stated that much - which clearly indicates that it was NOT a gift as far as they were concerned. Therefore, a claim made said business that it issued you the check by "mistake" - and not as a "gift" - is likely to be believed by a reasonable jury or judge.

I agree that this would/could be the issue brought up in court... no doubt about that. But then this also considers that the OP is taken to court. The business would need to serve the OP and the OP could always give the money back at any point. But two things to also consider... would the business be willing to spend the money to take the OP to court and also, the business would be stuck with the legal costs (the judge would not stick the OP with these as their is no contract to address this and the OP has a right to dispute that he owes money back that was freely given to him.
said by Mce Saint:

Again, the matter is NOT - as you keep wanting to assert - that it was "freely given," but rather the INTENT that accompanied that which was "freely given."

I'm sorry... but it _was_ freely given. Look up the definition and you will see that it fits perfectly. In that the business _later_ discovered that they made a _mistake_ does not change how it was given to the OP. The OP did not force the company to give the money, he did not trick them out of it, he did not mislead the company in anyway. The money just showed up. That is _certainly_ money that was given "freely".
said by Mce Saint:

By definition, a "refund" is NOT a gift, but a return of money due to the customer. As the OP was not due any money as a "refund" he cannot reasonably treat the check as a "gift."

This is a very good argument that the business could bring up in court... and it is probably their best and one/only argument to get the money back.

But I also don't see that the OP legally owes the money back until a judge rules and _that_ is what the OP asked about.
tcope

tcope to Mce Saint

Premium Member

to Mce Saint
said by Mce Saint:

The "pigeon drop scam" is fraud and prosecutable as such. The fact that the fraudsters relied on the victim's cooperation - in lieu of a gun - to get their cash, doesn't make the scam legal. Nor does it mean that the con artists received a "gift" from the victim.

The difference here is that the OP did not have a plan to fraudulently obtain the money from the business. In what you describe we need to look at the entire picture and it can be shown that the intent of the fraudsters was to defraud the victim of the money (a plan was in place to do this).

My use of the word "freely" was very general. But the OP also never intended to obtain the money by fraudulent means.
Mce Saint
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join:2007-10-03
Saint Louis, MO

Mce Saint to tcope

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to tcope
Actually the OP's question was:

"So my question is, since it was addressed to me, and the check cleared, can they really legally demand I give the money back? I'm thinking no but thought I'd put the question out there."

And, tcope, since you're wanting to hyper-literal and all, the answer is yes: they can LEGALLY DEMAND that OP give the money back. They can demand anything they want.

If you want to take his question less hyper-literally as "am I legally liable to the company for the amount of money?"

The answer, again, is: yes.

If the OP - as a strategy to avoid paying the money back - makes the company go through the hoops of obtaining a judgment against the OP and, then, attempting to enforce the judgment, that's a strategy, but it doesn't alter the legal liability of OP at all.

I know LOTS of clients who simply don't care about their "legal liability" because - at the end of the day - they're simply trying to survive. So, the longer they put off a reckoning, the better off they believe they are. And, if a judgment is entered against them . . . well, there's always bankruptcy.

But, that's a *strategy* not a legal analysis.

As I said in a prior post, the company COULD take the position that OP is indebted to it for the sum of $200 and send the matter over to collections. That would be one of the strategies available to it - short of calling in the lawyers.

I note that you skipped over the part of my post that stated that the cause of action the company would likely pursue against the OP if they took him to court would be the tort of "conversion." There's also the cause of action for "unjust enrichment." Are there possible defenses arguments that OP or his lawyer could raise? Sure.

Yes, lawyers can argue two, three, or four sides of anything. And there can never be any guarantees.

But, as a lawyer, my job is to assess the merits of a client's case. And to assess the likely outcome at the outset . . . not to tell the client what the outcome is AFTER a judgment is entered.

In this instance - looking at it from both sides - I like the chances of the company against the OP IF it decided to pursue a claim for $200. And, if they didn't want to spend the money to sue, I'd support the company taking less formal collection efforts.

In my opinion, the company wins a judgment against the Plaintiff in the amount of $200 . . . 99 times out of 100 that this case gets filed.

At the same time, if OP walked into my office and was willing to pay my fee, I'd do my best to represent him/her . . . but honesty and ethics require me to point out to OP that it may be in his best interest to settle with the company on the most favorable terms he could obtain. If the Plaintiff wants to take the risk that he'll be sued and, likely, lose, well that's his business. And if the client wanted my assistance in avoiding enforcement of the judgment through 100% legal means (i.e., NOT fraudulent ones), then I would. Lawyers take cr*ppy cases like this they know they'll ultimately likely lose all the time.

MikeTest
Non-Believer
join:2010-10-19
Moribund

MikeTest

Member

said by Mce Saint:

As I said in a prior post, the company COULD take the position that OP is indebted to it for the sum of $200 and send the matter over to collections. That would be one of the strategies available to it - short of calling in the lawyers.

In my opinion, the company wins a judgment against the Plaintiff in the amount of $200 . . . 99 times out of 100 that this case gets filed.

Thanks, after looking around some more I do think they would send it to collections.

I'd also like to say what a shitty thing I think that would be to do.
Ding somebodies' credit score because of your f-up? I mean collections to me, is to be used for when a person extends some sort of credit line or accumulates some sort of debt via a contractual agreement.

Oh well, he can at least enjoy the beer for now.
Mce Saint
Premium Member
join:2007-10-03
Saint Louis, MO

Mce Saint to tcope

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to tcope
For the record, I wrote:
quote:
Again, the matter is NOT - as you keep wanting to assert - that it was "freely given," but rather the INTENT that accompanied that which was "freely given."
And your reply was:
quote:
I'm sorry... but it _was_ freely given.
Who are you "arguing" with? I did not say it wasn't "freely given." I did, however, clearly state that whether it was freely given (or not) was NOT - as you want to make it - the ONLY and DECISIVE issue in resolving the legal positions/liabilities of OP and the company.

You keep ignoring the more decisive issue: intent of the parties. And, as I've now stated several times, intent is found both from viewing the subjective mindset of the company and the OP AND from the objective facts surrounding the event.

Freely given or not, the fact that the check WAS accompanied by a letter stating that it was a "refund" means that OP KNEW the company wasn't making or intending to make a gift to him.

In a courtroom, no judge or jury is going to let OP ignore that knowledge and turn a blind-eye to the "refund" language that accompanied the check and find that the OP, under those circumstances, REASONABLY believed that it was "gift."

In so far as "screwing over the parties" I fail to see how it's "screwing over" the OP to hold him liable for a check denominated as a "refund" when he admits that from the beginning he wasn't DUE a refund from the company.

It strikes me the OP spends such a check at his own risk: the risk being that he spends the $200 on wine, women and song and, then, later is on the hook to the company to repay the $200.

Some clients are willing to accept that risk . . . others are not.
Mce Saint

Mce Saint to MikeTest

Premium Member

to MikeTest
quote:
I'd also like to say what a shitty thing I think that would be to do.
In terms of shittiness - being a business owner myself as well as a consumer - I'd say it's as equally shitty as taking a check denominated as a refund and cashing the check - when you know from the outset that you're not due the refund -and then telling the company to pound sand.