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  #41  
Old 04-24-2019, 10:23 AM
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crufflers crufflers is offline
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Originally Posted by triple-tap View Post
My Word Is My Bond! How long do out of state private parties and vendors have to send to CA per our large mag contracts?
If you are BOTACH you might send something out in September OR you might never send something out apparently. I guess that's better odds than PSA.
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  #42  
Old 04-24-2019, 5:50 PM
Chewy65 Chewy65 is offline
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Originally Posted by nu2gunstuff View Post
Huh? That's pretty cryptic. I'm talking about physical exchange of dollars and goods.
If an agreement was made during Freedom Week how long is it legally allowable to complete the transaction?
It depends on the terms you agreed upon. I know of nothing limiting how long the seller has to ship, other than the terms of the agreement to which you agreed. If you are talking about an internet deal, then look to the terms of your agreement, and especially the terms of use and any thing the site may have posted about things such as back orders, out of stock, and there right to cancel. Did they reserve the right to cancel up until your credit card was charged, which many do not charge until time of shipment?
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This is neither legal advice nor a legal opinion.
Being on “inactive status” with the State Bar of California I cannot practice law. Were I "active", you would not be entitled to rely on my posts because you are not my client.
Were I practicing, an attorney client relationship could only be created in a writing by both the client and myself. Not by a post, private message, or email.
I never practiced criminal nor firearms law.Do not rely on my post, but consult your own attorney.
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  #43  
Old 04-24-2019, 8:02 PM
KHF1222 KHF1222 is offline
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The window for standard capacity magazines is long past.

At this point in time if you ordered standard capacity magazines within the window, received the magazines, and a
magazine(s) is broken or defective and you want to return it for a replacement, then this magazine exchange will work
like the roster where if the manufacturer under warranty has to replace the frame to return the firearm to service and
the original firearm which was on the roster is no longer listed, you do not get back your original model but offered
the closest equivalent that is on the roster.

You may contact the vendor to send the standard capacity magazine(s) back back and receive a refund if the terms of sale
allow a refund, but you will not receive a replacement. If you receive a replacement it will be for a magazine that
holds 10 rounds or less in exchange for the magazine returned which holds more than 10 rounds.

Also at this point in time whatever the contracted terms of sale by the vendor for standard capacity magazines, you are
SOL if you expect to receive them let alone attempt to order more. As far as standard capacity magazines it does not
matter whatever the terms of any agreement on how long you have to complete the transaction, you are still SOL. As far
as standard capacity magazines the window is closed, the door is shut, that train has left the station, and that ship
has sailed. There is no sales in perpetuity, protected class, extended back-orders, or anything else. Any attempts to
push this nonsense and it could be considered to be acting in bad faith in regards to the stay by Benitez.

Now what the Calguns forum members and their 2A friends did on their own was the single biggest movement ever
accomplished for firearm owners in California even though the Benitez order barely had any media coverage. The very
large quantities of standard capacity magazines which were legally purchased in that short one week window was because
there was an huge inventory of readily available magazines in stock. That would seem to establish 'common use'.

All that needed to be done was to establish common use. That was done and it was big. What are we to do? Well, you wait
for this to go through the courts. Now we stand back and let our lawyers work with that and other arrows they have in
their quiver. Whether the 9th even considers common-use is something else though.
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  #44  
Old 04-25-2019, 9:37 AM
nu2gunstuff nu2gunstuff is offline
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So vendors currently shipping backordered items are breaking law in your opinion?
This is all kind of a fascinating topic for me.
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  #45  
Old 04-25-2019, 9:39 AM
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Originally Posted by nu2gunstuff View Post
So vendors currently shipping backordered items are breaking law in your opinion?
This is all kind of a fascinating topic for me.
It depends. Legally, title / ownership transfers when payment is made and accepted, not when the product is delivered. If the paymentis made when the order is accepted then I think that is legal. If the vendor does not charge your credit card until the product is ready to ship.. then yea you have a problem If the mags are being shipped COD, then yes that would be a violation in my opinion.
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  #46  
Old 04-25-2019, 10:59 AM
Chewy65 Chewy65 is offline
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This isn't a train and there is no station. The key is when a LCM was "bought" and "sold".

Quote:
IT IS HEREBY FURTHER ORDERED that the permanent injunction enjoining enforcement of California Penal Code § 32310 (a) and (b) shall remain in effect for those persons and business entities who have manufactured, imported, sold, or bought magazines able to hold more than 10 rounds between the entry of this Court’s injunction on March 29, 2019 and 5:00 p.m., Friday, April 5, 2019.
While the above is read by some as meaning the injunction against enforcing 32310 against persons doing any of the above remains in force for acts done after Freedom Week, that is nonsense. You have to read the quoted part of the Order in context with its entire 6 pages.

The problem many have is they attempted to buy magazines during FW that have yet to ship. If they will be shipped from outside of California the issue is importation, but that is not an issue if you bought or sold during FW.

This is why I say it all turns on when the sales transaction took place. What is customary may not be the same as what you agreed to with your seller. No one size fits all. I simply don't understand why someone thinks the ship has left the dock, for magazines bought within the designated period.

I have undoubtedly forgotten much and retained very little about sales law, but are we talking about when title passes or simply when a purchase was made. If the vendor requested payment by means of a credit card and you tendered payment by a valid credit card, if the terms of the order were clear, you probably completed a purchase unless the seller somehow reserved the right to later decide to accept your order. Some online sellers may have done so regarding out of stock product. I don't know if that is considered a completed purchase. Arguably, the seller having failed to agree to the order until after FW, the transaction took place after the train left the station.

This is not like the situation in which a vendor puts up the description and price at which merchandise if offered. Such is called a unilateral offer and all that is needed to complete the agreement is to accept the terms, which usually means filling in the order form and giving them your credit card information.

Some of the sellers with terms reserving the right not to accept your order may have been advised not to ship since everything will have gone down, as far as when the magazine is sold, bought, or imported until after FW.
Some may not even have been manufactured during it.
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This is neither legal advice nor a legal opinion.
Being on “inactive status” with the State Bar of California I cannot practice law. Were I "active", you would not be entitled to rely on my posts because you are not my client.
Were I practicing, an attorney client relationship could only be created in a writing by both the client and myself. Not by a post, private message, or email.
I never practiced criminal nor firearms law.Do not rely on my post, but consult your own attorney.

Last edited by Chewy65; 04-25-2019 at 11:06 AM..
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  #47  
Old 04-25-2019, 11:32 AM
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Quote:
Originally Posted by Chewy65 View Post
This isn't a train and there is no station. The key is when a LCM was "bought" and "sold".



While the above is read by some as meaning the injunction against enforcing 32310 against persons doing any of the above remains in force for acts done after Freedom Week, that is nonsense. You have to read the quoted part of the Order in context with its entire 6 pages.

The problem many have is they attempted to buy magazines during FW that have yet to ship. If they will be shipped from outside of California the issue is importation, but that is not an issue if you bought or sold during FW.

This is why I say it all turns on when the sales transaction took place. What is customary may not be the same as what you agreed to with your seller. No one size fits all. I simply don't understand why someone thinks the ship has left the dock, for magazines bought within the designated period.

I have undoubtedly forgotten much and retained very little about sales law, but are we talking about when title passes or simply when a purchase was made. If the vendor requested payment by means of a credit card and you tendered payment by a valid credit card, if the terms of the order were clear, you probably completed a purchase unless the seller somehow reserved the right to later decide to accept your order. Some online sellers may have done so regarding out of stock product. I don't know if that is considered a completed purchase. Arguably, the seller having failed to agree to the order until after FW, the transaction took place after the train left the station.

This is not like the situation in which a vendor puts up the description and price at which merchandise if offered. Such is called a unilateral offer and all that is needed to complete the agreement is to accept the terms, which usually means filling in the order form and giving them your credit card information.

Some of the sellers with terms reserving the right not to accept your order may have been advised not to ship since everything will have gone down, as far as when the magazine is sold, bought, or imported until after FW.
Some may not even have been manufactured during it.
I am not an attorney but I thought...

There are three fundamental requirements for the formation of a legally enforceable contract, and they are as applicable online as offline.

-First, the contracting parties must agree on the terms of the contract, through the issue and acceptance of a contractual offer.

Second, they must intend to create a legally binding agreement.

Third, the contract must be supported by consideration: an exchange of value.
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  #48  
Old 04-25-2019, 12:41 PM
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Originally Posted by OCEquestrian View Post
I am not an attorney but I thought...

There are three fundamental requirements for the formation of a legally enforceable contract, and they are as applicable online as offline.

-First, the contracting parties must agree on the terms of the contract, through the issue and acceptance of a contractual offer.

Second, they must intend to create a legally binding agreement.

Third, the contract must be supported by consideration: an exchange of value.
It is the first part that is important. For example, if the seller's website indicated it would take orders but was OOS and may not fill them, that could be construed as no more that a solicitation of interest. When the buyer completed the forms and submitted his credit card, he was making an offer that the vendor had to accept. If the vendor charged your card, depending on the terms of the agreement, that might be construed as acceptance and that is when the magazines were bought.

This gets into another messy ball of twine, which is what does 32310 mean by "buys". Read up on the Rule of Lenity. The rule concerns interpretation of criminal statutes, such as 32310, and I think it so unfair to construe a buy to the vagaries of sales law, which are difficult for even lawyers to puzzle out, that the rule of lenity should be applied even though when a fine point is put on a pencil a sale never actually occurred. The other side of he coin is that the term "buy" only becomes ambiguous if given the meaning held by a few lawyers, when there is no ambiguity if it the intent of the statue is the same as its plain meaning. As long as the sale is completed, the buy occurred when the buyer hit submit.
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This is neither legal advice nor a legal opinion.
Being on “inactive status” with the State Bar of California I cannot practice law. Were I "active", you would not be entitled to rely on my posts because you are not my client.
Were I practicing, an attorney client relationship could only be created in a writing by both the client and myself. Not by a post, private message, or email.
I never practiced criminal nor firearms law.Do not rely on my post, but consult your own attorney.
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  #49  
Old 04-25-2019, 12:55 PM
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Wow, hey, thank you for the detail.
My questions were genuinely curious and I appreciate the time you spent responding (and hopefully many others too).
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  #50  
Old 04-25-2019, 1:17 PM
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U r welcome. I know I can go off into the weeds. Back when I was in practice it sometimes paid off, but then sometimes the forest was missed because of the trees.
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This is neither legal advice nor a legal opinion.
Being on “inactive status” with the State Bar of California I cannot practice law. Were I "active", you would not be entitled to rely on my posts because you are not my client.
Were I practicing, an attorney client relationship could only be created in a writing by both the client and myself. Not by a post, private message, or email.
I never practiced criminal nor firearms law.Do not rely on my post, but consult your own attorney.
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  #51  
Old 04-25-2019, 1:22 PM
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Awesome. In my humble opinion, you helped with both the forest and the trees.
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  #52  
Old 04-25-2019, 7:09 PM
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There was a kid in class when I was a boy who didn’t turn in homework for a couple of days. The kid argued that the teacher couldn’t do anything about it because the teacher had said a few days ago that there wouldn’t be any homework because kids need to sleep. Due to the rotation of the earth producing different time zones, the boy said, there was always a place on earth where children were sleeping. Therefore, no homework could ever be due.

Smart kid. Anyone want to guess what happened?

You can be as linguistically precise as you want, but in the end the law is whatever the legal system ultimately decides it is. And all prosecutors know that there is such a thing as punishment by unsuccessful prosecution. They can lose the prosecution, and in the end you will still lose your house, your car, your job, your retirement savings, years of your life, and perhaps even your health and your family, and you’ll get to be right.

But hey, you do you.
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  #53  
Old 04-26-2019, 8:16 AM
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U r welcome. I know I can go off into the weeds. Back when I was in practice it sometimes paid off, but then sometimes the forest was missed because of the trees.
Once a lawyer, always a lawyer...
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  #54  
Old 04-26-2019, 3:32 PM
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Once a lawyer, always a lawyer...
Double trouble for my wife and daughter, who work for lawyers, as well as . . . Once a Marine, always a Marine
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This is neither legal advice nor a legal opinion.
Being on “inactive status” with the State Bar of California I cannot practice law. Were I "active", you would not be entitled to rely on my posts because you are not my client.
Were I practicing, an attorney client relationship could only be created in a writing by both the client and myself. Not by a post, private message, or email.
I never practiced criminal nor firearms law.Do not rely on my post, but consult your own attorney.
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  #55  
Old 04-26-2019, 4:56 PM
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Quote:
Originally Posted by nu2gunstuff View Post
Huh? That's pretty cryptic. I'm talking about physical exchange of dollars and goods.
If an agreement was made during Freedom Week how long is it legally allowable to complete the transaction?
Quote:
Originally Posted by Chewy65 View Post
It depends on the terms you agreed upon. I know of nothing limiting how long the seller has to ship, other than the terms of the agreement to which you agreed. If you are talking about an internet deal, then look to the terms of your agreement, and especially the terms of use and any thing the site may have posted about things such as back orders, out of stock, and there right to cancel. Did they reserve the right to cancel up until your credit card was charged, which many do not charge until time of shipment?
Quote:
Originally Posted by nu2gunstuff View Post
So vendors currently shipping backordered items are breaking law in your opinion?
This is all kind of a fascinating topic for me.
Quote:
Originally Posted by OCEquestrian View Post
It depends. Legally, title / ownership transfers when payment is made and accepted, not when the product is delivered. If the paymentis made when the order is accepted then I think that is legal. If the vendor does not charge your credit card until the product is ready to ship.. then yea you have a problem If the mags are being shipped COD, then yes that would be a violation in my opinion.
This was how I understood the original question.

The discursion into other territory is best left dormant.
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