Failed Background Check

[Bmars06]

1.. Yes, maybe, it depends....

You and the seller entered into a contract to buy/sell a gun. The contract, to be valid, requires agreement between the parties as to what shall be done -- a meeting of the minds (I sell this gun; I buy his gun). The parties must be competent--legally cable of making a contract by age and mental ability. There must be consideration (I give you "x" dollars, you give me gun). And the transaction must be legal (generally, if it's not your gun, you can't sell it.)

In this case, everything was fine, all parties acting in good faith until the state ruled you cannot legally buy the gun. At that point, a mutual mistake was discovered-- you both thought you could buy, and you were both mistaken. The contract became null and void, and all parties should be restored to their original status. (Gun to seller; cash to buyer).

As mentioned earlier, this is a restitution issue. He can either attempt to rescind the contract (because of mistake or other qualifying legal theories) or seek unjust enrichment.

However, mistake is not that simple. Mistake only works if the party seeking to use it as an excuse to the contract does not bear the burden of mistake. A party can bear the burden of mistake by either the contract allocating it to him ("as is" provision), by the court allocating it to him through equity, or if the buyer realizes he does not have adequate knowledge regarding the transaction yet goes through with it anyways.

[Bmars06]

As seller, its not my job to hold the buyers hand in purchasing the firearm. I'm also not a bank to hold his money until he picks up said firearm. If my buyer doesn't have his act together, its not my duty to try to starve my kids to scrounge money to pay him back or go without electricity. In this situation or any, the buyer is a d-bag for trying to put me through that.
Of course at the moment, thank God I am not in this situation but many people sell guns to pay bills. I sell to fund toys and projects so I don't dig too much into my personal accounts. Hell, last gun I sold here, I went straight from the gun shop to the motorcycle shop to buy a new helmet. The buyer was real cool and in a ccw process so I doubt he would of failed anyways but if he did, I would tell the gun shop to turn it in to pd as I sold it and its not mine in my mind.
Make sure you have your act together before you buy if you're thinking you're not going to pass.

Completely agree.

However, it works the exact opposite in the legal world (for the most part).

[Dvrjon]

As mentioned earlier, this is a restitution issue.

Um, Yes, we agree. We know that from the OP's initial question:

Am I entitled to get my money back from the seller if I fail a background check when I buy a gun through ppt?

He can either attempt to rescind the contract (because of mistake or other qualifying legal theories) or seek unjust enrichment.

Unjust enrichment is a great concept, but the OP doesn't seem to have the ability to prove the price paid. Without a value, enrichment of any kind is unprovable.

My premise is that there is no contract to rescind. Buyer (unknowingly) was not legally capable of entering into the contract. That's a basic element of a contract -- legal capacity. Lacking that, the contract is null and void in all parts. Had the contract contained an indemnification against failure to clear background, that provision would govern and we wouldn't be here, now.

However, mistake is not that simple. Mistake only works if the party seeking to use it as an excuse to the contract does not bear the burden of mistake. A party can bear the burden of mistake by either the contract allocating it to him ("as is" provision), by the court allocating it to him through equity, or if the buyer realizes he does not have adequate knowledge regarding the transaction yet goes through with it anyways.

In many cases, mistake is not simple. But, in this case, I think it is. Let's, for review of your points, pretend the contract exists:
-The contract did not contain provisions allocating the burden of mistake to either party. So this point is moot.
-The court has not allocated "mistake" to either party. That comes in the, "can I sue" question. Arguably, if heard, the court could easily find mutual mistake; (the court could easily do whatever it wants.)
--The seller should have verified the buyer's ability to buy; the buyer should have done the same. Absent proof that the buyer was aware of his inability to legally participate (e.g.; convicted felon; previously failed purchase clearance, etc.), the judgement becomes a draw.
-- the court could also find that, since DOJ provides the ability to obtain status prior to purchase, the buyer had a duty to discover this prior to the transaction. Since this is not common practice, that would, in my mind, be a stretch.
-The buyer did not (apparently) realize he did not have adequate knowledge and went through with the transaction. So, the final point also appears moot.

I believe the buyer's best opportunity here is to obtain local FFL policies/practice in sales indemnifications (we've seen some in these posts; $125 flat, 33%), establish a value and make an offer to the seller for partial reimbursement.

Otherwise, Small Claims Court, but, this also is problematic, as there seems to be some question of proving how much money was paid.

JR
All previous caveats apply.

[Bmars06]

Um, Yes, we agree. We know that from the OP's initial question:
Unjust enrichment is a great concept, but the OP doesn't seem to have the ability to prove the price paid. Without a value, enrichment of any kind is unprovable.

My premise is that there is no contract to rescind. Buyer (unknowingly) was not legally capable of entering into the contract. That's a basic element of a contract -- legal capacity. Lacking that, the contract is null and void in all parts. Had the contract contained an indemnification against failure to clear background, that provision would govern and we wouldn't be here, now.

In many cases, mistake is not simple. But, in this case, I think it is. Let's, for review of your points, pretend the contract exists:
-The contract did not contain provisions allocating the burden of mistake to either party. So this point is moot.
-The court has not allocated "mistake" to either party. That comes in the, "can I sue" question. Arguably, if heard, the court could easily find mutual mistake; (the court could easily do whatever it wants.)
--The seller should have verified the buyer's ability to buy; the buyer should have done the same. Absent proof that the buyer was aware of his inability to legally participate (e.g.; convicted felon; previously failed purchase clearance, etc.), the judgement becomes a draw.
-- the court could also find that, since DOJ provides the ability to obtain status prior to purchase, the buyer had a duty to discover this prior to the transaction. Since this is not common practice, that would, in my mind, be a stretch.
-The buyer did not (apparently) realize he did not have adequate knowledge and went through with the transaction. So, the final point also appears moot.

I believe the buyer's best opportunity here is to obtain local FFL policies/practice in sales indemnifications (we've seen some in these posts; $125 flat, 33%), establish a value and make an offer to the seller for partial reimbursement.

Otherwise, Small Claims Court, but, this also is problematic, as there seems to be some question of proving how much money was paid.

JR
All previous caveats apply.

Lol. I've tried to make this as easy as possible for non-lawyers. I don't have time to keep correcting every legal theory lay-persons have, no offense.

To clear things up, illegality does not stop the formation of a contract. It is a way of seeking rescission of the contract. As such, it may bar enforcement of the contract but not the formation.

A Google definition of mistake or any other legal concept will not provide you with an adequate legal understanding, yet alone how local CA courts will apply them.

The amount paid for the gun can easily be proven through a preponderance of the evidence, bank receipts, witnesses, cross-examination, or just the plain testimony from the buyer... not hard. And by the way, he does not need to know the exact amount he paid. California unjust enrichment principals are based on fair market value of the good at the time the defendant obtained the benefit. Rescission requires consideration being returned (which would require a minimal showing of what consideration was give.)

Please see above for basic points on how CA law applies to remedy situations.

As always, if you want actual legal advice, not advice from Judge Judy or Law & Order, please seek private counsel. For a vast majority of the time, law practiced on television is no where close to realistic, especially in CA (who makes it a point to make their own versions of laws and disregard the majority of other states).

[joepamjohn]

????
I assume you own a gunshop and need the revenue.
Plus, reputable gunshops are hard to find with all the asshattery you see in them.
ppt is the best way to get used guns without being ***-raped.

Read what the OP wrote before you pipe in..He asked how would he protect himself in the event he does not pass the backround on a PPT.

1) Don't be a criminal so you will pass.
2) If you are concerned about getting money back, don't do PPT where it may be hard to recoup funds, use a gun store so there are receipts and documents of money paid.

Sounds like you have had experience with the a**rape thing.......................