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My background check came up undetermined and 30 days past and the shop won't release a gun undetermined. Here is the problem, the seller and I have decided go to another shop that will release if undetermined, the original shop is making the seller do a background check to pick up his own gun, is this right?
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what a nightmare! interested to know the answer as well. -
Who?s the shop?
IIRC, no DROS would be needed to return to seller. Some shops seem to insist on this apparently.Comment
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No. He should be able to get it back without Dros.Comment
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The FFL can legally deliver on undetermined.
If the FFL choose to ignore a legal transfer than can....
28050.
(a) A person shall complete any sale, loan, or transfer of a firearm through a person licensed pursuant to Sections 26700 to 26915, inclusive, in accordance with this chapter in order to comply with Section 27545.
(b) The seller or transferor or the person loaning the firearm shall deliver the firearm to the dealer who shall retain possession of that firearm.
(c) The dealer shall then deliver the firearm to the purchaser or transferee or the person being loaned the firearm, if it is not prohibited, in accordance with Section 27540.
(d) If the dealer cannot legally deliver the firearm to the purchaser or transferee or the person being loaned the firearm, the dealer shall forthwith, without waiting for the conclusion of the waiting period described in Sections 26815 and 27540, return the firearm to the transferor or seller or the person loaning the firearm. The dealer shall not return the firearm to the seller or transferor or the person loaning the firearm when to do so would constitute a violation of Section 27500, 27505, 27515, 27520, 27525, 27530, or 27535.Comment
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I believe that’s correct. The seller will need to drosComment
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Make sure the second ffl will release on undetermined.Comment
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Seller does not have to dros. Read ;post #5Comment
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I wonder how this works with undetermined since the dealer can legally deliver to the buyer. I always understood undetermined to still be transfered to the transferee technically.
The FFL can legally deliver on undetermined.
If the FFL choose to ignore a legal transfer than can....Comment
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^^^^^^
I suspect that it was written to allow a seller to have his property returned in the event the buyer was actually rejected or denied.
Not having to wait for 10days from time of PPT.
Having a FFL be "extra legal" by not delivering on undetermined was not the intent since it goes the 30days to get that determination.
It all goes back to the wording "will" was changed to "shall" deliver is my understanding.
Some FFLs see "shall" as a option to deliver.
This is a opinion...28050.
(a) A person shall complete any sale, loan, or transfer of a firearm through a person licensed pursuant to Sections 26700 to 26915, inclusive, in accordance with this chapter in order to comply with Section 27545.
(b) The seller or transferor or the person loaning the firearm shall deliver the firearm to the dealer who shall retain possession of that firearm.
(c) The dealer shall then deliver the firearm to the purchaser or transferee or the person being loaned the firearm, if it is not prohibited, in accordance with Section 27540.
Legalwriting.net
Wayne Schiess's legal-writing blog. Home is here: Legalwriting.net
Monday, May 16, 2005
"shall" vs. "will"
Question:
What is your opinion on "shall" vs. "will" in contracts?
These words have different meanings but both can be used effectively in contract drafting as long as you're careful about your usage.
Shall
Did you know that "shall" is the most misused word in all of legal language? It is. In the current edition of Words and Phrases, "shall" alone is followed by 109 pages of case squibs, and "shall" phrases cover 45 more pages. Yet its misuse is one of the most heavily repeated errors in all of law.
Here's where lawyers go wrong: When "shall" is used to describe a status, to describe future actions, or to seemingly impose an obligation on an inanimate object, it's being used incorrectly. For example, all of these are wrong:
Status: "Full capacity" shall have the following meaning . . .
Future action: If . . . then the contract price shall be increased . . .
Faulty imposing of obligation: The remaining oil shall be sold by lessee . . .
To correctly use "shall," confine it to the meaning "has a duty to" and use it to impose a duty on a capable actor. Bryan A. Garner, A Dictionary of Modern Legal Usage 940?941 (2d ed., Oxford U. Press 1995). Here's how:
Lessee shall sell the remaining oil . . .
In other words--
Lessee [an actor capable of carrying out an obligation] shall [has a duty to] sell the remaining oil . . .
Some suggest that lawyers are incapable of using "shall" correctly, so we ought to banish it entirely. Mich?le M. Asprey, Shall Must Go, 3 Scribes J. Leg. Writing 79 (1992). One recommendation is to use "must" instead. Of course, you cannot search and replace every "shall" with "must." Scrutinize each use carefully.
Will
You can use "will" to create a promise--a contractual obligation. See Bryan A. Garner, A Dictionary of Modern Legal Usage 941-942 (2d ed., Oxford U. Press 1995). When used in this way, "will" is not merely stating a future event, it is creating a promise to perform:
Landlord will clean and maintain all common areas.
You could use "shall" for the other party's obligations and "will" for your client?s obligations, though the effect of these words should be the same. The difference reflects only the impact on the reader.
Recommendation
In most basic contracts, I recommend using "will" to create obligations, as long as you are careful to be sure any given usage can't be read as merely describing future events. I'm generally against "shall" because it is harder to use correctly and it is archaic. But not everyone agrees with me. Kenneth A. Adams, A Manual of Style for Contract Drafting 24-25 (ABA 2004). Adams prefers using "shall" as long as it's used correctly.
See also Joseph Kimble, The Many Misuses of Shall, 3 Scribes J. Leg. Writing 61 (1992)
posted by Wayne Schiess at 12:43 PMComment
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