Bill White
Well-known member
One issue that many posters have speculated about is when goods should be considered "used." I do not know what New York law provides. Unless there is a special section relating to consumer goods, it could be covered by the Uniform Commercial Code (which is a misnomer as it is not totally uniform from state to state). Is there a New York lawyer in the house? 
This is my take on the issue and should not be considered a legal opinion as I cannot offer an opinion on New York law. (only a lawyer licensed to practice in New York can do that) Nevertheless, this may provide some help to those who have asked. (or perhaps not)
Everyone would probably agree that once title passes, goods should not be considered new. If I own it, the store does not and the goods are now used goods. Therein lies the problem. Some have suggested that title should pass when you walk out the door but that is not the case in Georgia. The issue of title passing is not as simple as it may seem.
Under the UCC in Georgia, (and it could be different in NY but apparently not) a sale is not complete and title does not pass until the buyer accepts the goods. If the seller gives the buyer a certain period of time to reject the goods and the buyer does so, the UCC provides that title has not passed and the sale is a nullity unless the buyer takes some action to evidence an acceptance of the goods inconsistent with the right of exchange. Thus the goods have not been sold and would still be new. So a store is not selling used goods if they resale returned merchandise under the UCC in Georgia.
The seller and buyer have the right to set their own terms under the UCC. In the case of a photo store, the seller advertises its terms and you accept those terms when you buy from them. Unfortunately for us as buyers, we do not have leverage to change the terms. So if the store policy is to allow you to return the goods for a specific period of time, no sale occurs until that time period expires under the UCC in Georgia unless you take some action to accept the goods (such as sending in the warranty card).
I think Mr. Posner alluded to this when he said someone had returned a product with the UPC removed for a rebate and B&H refused to accept the return. This policy is consistent with the concept of an acceptance by the buyer thereby passing title.
So as a buyer, you have to decide what you want and you must read the store policy very carefully. Factory fresh merchandise may only be available at a store with a policy of "All sales final unless defective." Otherwise you may be buying a new product that has been exchanged and reinspected. Of course, you then have a right to return that merchandise. In the final analysis, that may be the best option.
Personally, I prefer the right to exchange as defective is another term without a precise definition.
--Bill
This is my take on the issue and should not be considered a legal opinion as I cannot offer an opinion on New York law. (only a lawyer licensed to practice in New York can do that) Nevertheless, this may provide some help to those who have asked. (or perhaps not
)Everyone would probably agree that once title passes, goods should not be considered new. If I own it, the store does not and the goods are now used goods. Therein lies the problem. Some have suggested that title should pass when you walk out the door but that is not the case in Georgia. The issue of title passing is not as simple as it may seem.
Under the UCC in Georgia, (and it could be different in NY but apparently not) a sale is not complete and title does not pass until the buyer accepts the goods. If the seller gives the buyer a certain period of time to reject the goods and the buyer does so, the UCC provides that title has not passed and the sale is a nullity unless the buyer takes some action to evidence an acceptance of the goods inconsistent with the right of exchange. Thus the goods have not been sold and would still be new. So a store is not selling used goods if they resale returned merchandise under the UCC in Georgia.
The seller and buyer have the right to set their own terms under the UCC. In the case of a photo store, the seller advertises its terms and you accept those terms when you buy from them. Unfortunately for us as buyers, we do not have leverage to change the terms. So if the store policy is to allow you to return the goods for a specific period of time, no sale occurs until that time period expires under the UCC in Georgia unless you take some action to accept the goods (such as sending in the warranty card).
I think Mr. Posner alluded to this when he said someone had returned a product with the UPC removed for a rebate and B&H refused to accept the return. This policy is consistent with the concept of an acceptance by the buyer thereby passing title.
So as a buyer, you have to decide what you want and you must read the store policy very carefully. Factory fresh merchandise may only be available at a store with a policy of "All sales final unless defective." Otherwise you may be buying a new product that has been exchanged and reinspected. Of course, you then have a right to return that merchandise. In the final analysis, that may be the best option.
Personally, I prefer the right to exchange as defective is another term without a precise definition.
--Bill
