My roomate and I decided we hated a certain piece of art, and we
decided that my roomate would list it through his internet auction
account.  He did so. There was a buyer for it. The buyer then paid for
it.  It was my roomates account, and my roomates bank account to which
the buyers' $ went.  We did not get a chance to ship  the item, and my
roomate several days later died in a car crash.  I later wrote to the
buyer anonymously and told him I would make a refund on my roomates'
behalf, even though he had passed on.  I did not send the buyer a
check, and lost my communication method and contact with the buyer,
and havent heard from him in months until last week when my roomate's
mother was in contact with the buyer and now he and I are in touch. 
The buyer states that I committed internet fraud and identity theft
and will contact appropriate law enforcement.
What are my legal obligations to the buyer? I have offered a refund of
all that he paid + 20 % interest just to boot.  He says I must come up
with the painting he says I sold him, and I cannot do that because the
painting was destroyed many months prior in the weeks surrounding my
roomates death.  I am trying to make things right with the buyer. 
LEGALLY WHO IS OWED WHAT?? IS ANYONE AT FAULT? HAS ANYONE COMMITTED A
CRIME ??

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Clarification of Question by gene20045-ga on 05 Jan 2005 08:54 PST

To clarify a bit: I personally did not receive a thing from this sale.
He gave it to him to sell and he did so under his name, and handled
the entire transaction, took the buyers money which was put into his
own account in his name and used it for his own purpose. I made no
money off of it.  My name was never mentioned throughout the entire
process until the end where i offered to refund his money.
Towartds comment #2 -> He dealt with the buyer up until his death.,
and then I took over and identifyed myself as a friend of the deceased
but didnt give my name.

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Clarification of Question by gene20045-ga on 06 Jan 2005 04:55 PST

Thank you eve,  you have been vry helpful, one more quckie
clarification and I will condier ths quesiton answered.

The buyer states, YOU ARE THE SELLER.  He says, I Intentionally used
my roomates account to set this whole thing up, and that I should
prove to him that it wasnt me using my roomates accoutns, but my
roomate using his own.

Even if this was true, which it isnt, I never received a dime, the
money..$72 is what we are talking about, went into my roomates
checking account directly from the buyer.

Wouldnt the person who was paid be the buyer no matter what else?

Get tough with this jackass.  Tell him the person who sold you the
painting has died.  Suggest he sue the estate.  You are not
responsible!  Return the money you received to your friend's family
(minus the 20 percent) and let them deal with it.  Or if he bothers
you anymore tell him that you are  going to report him to the internet
auction house and then the police for threating you. Block his email
and then forget about it.

If you really want to get tough, find a lawyer to write a very
threating letter to this "person".  I would bet you never hear from
him again.

Gene,

It is reasonable to presume that legal obligation is to restore the
situation to pre-contractual state.  It would be best and probably
most ehical to return the money.

Now, who should pay?  The person(s) who entered the contract.  Just
because the money went into your late roomates account it does not
mean he placed the offer.  If he did, the estate of the deceased.  No
interest on the boot needed.  If your name is attached to any legal
documents/interent acceptance buttons, you may want to restore.

Some legal jargon. If your country is guided by the roots of the
"Common Law", the judge would order you to refund the moneys in the
case where you cannot complete your part of the contract.  (US,
Canada)

Sorry to hear about your roomate.  
Eve

That must have been some nasty artwork.  You must hate it even more now.
Eve

Hi Gene.

For this case, as outlined above, here are some answers. If the amount
in question is small, it is only worth for you to read the first
paragraph under  ea question. When amounts are small, I do not think
that the buyer would even waste the time/effort and stress for the
refund.

I have added the background that you may find interesting:

LEGALLY WHO IS OWED WHAT??
You do not owe anything.  The deceased estate needs to refund the
money, if there are assets left in the estate.   The executor of the
estate should be informed and this person is obligated to compansate
the buyer from the funds in the estate.

Background: The buyer is owed his money back or the artwork from the
roommate.  Because there is no artwork, the money needs to be
returned.  Becasue the roomate is deceased, the Estate of the deceased
must compensate.

The person who handles the estate is the Estate Executor and is
ususally appointed by the law, either as requested in the will or by
the courts.
As the Executor the responsibility includes disposition of all assets
and an obligaton to find all of the deceased' creditors to restore the
debts prior to distributing the estate.  That is anyone, including the
taxman, who can legally prove that they have a claim.

The estate executor normally places an add in the paper informing the
public of the issue and has the obligation to contacts all known
creditors.  There is a cutoff date of how late a claim can be made
from the official public announcement.  Any claim subsequent to this
date is voided and creditor suffers the loss.

If there is no announcement and the estate executor distributes the
assets, the executor of the estate can be personally held liable for
the debt due to lack of due dilligence.

If all the assets are insufficient to cover debts, creditor/buyer
suffer the  loss.  Simply put, there is no money, too bad, so sad. 
This case is the most common and often no procedures as listed above
are even bothered with.  If there was a lot of money in the estate, be
sure to find people coming out of the woodwork.
 
IS ANYONE AT FAULT? 
Gene, you did no Fault.  The estate executor will be at fault if the
claim was made and the executor ignores it.  The executor is not at
fault if either the money is returned or the buyer is informed that
there is no money in the estate.

HAS ANYONE COMMITTED A CRIME ??
This is not a crime.  Crime is for Criminal law i.e if deliberate
fraud was committed in order to steal the purchaser's money.  This
case is under the Tort Law.

Background: Tort Law pertains to contracts.  For a contract to exist
these items are needed:  Two parties who enter it (buyer and seller),
offer and acceptance, and a consideration (money and the artwork). 
This will become a tort when one of the parties to the contract fails
to fulfill their obligation. Whch is: your roommate did not deliver
the consideration.  Because the obligation cannot be completed (the
artwork is destroyed) the parties must be restored to the
pre-contractual position.   Which is what the arbitrator/judge would
do.

SUGGESTION:
Inform the estate executor of this person.  Let this person prove the claim.
Inform the buyer that you are not a part of the contract and that you
have no legal obligation to this contract.

If you are the estate executor, let this person know either way if
there is or isn't any money to restore the situation.

Inform the buyer to stop  contacting you for the funds/artwork
otherwise this will consititute as harassment under the Tort Law and
if he/she continues,  you will be taking this person to court for the
harassment. And make sure you do.

Hope that this will answer your questions.
Eve

Oh, and the above is taken from studies under professor Yates, who
teaches at the Simon Fraser Univesity in British Columbia, Canada.  He
has written the book for the intorductory course too.

http://www.educ.sfu.ca/ugradprogs/Outlines/Educ448cassidy.html

By the way, this sounds like a case and questions he would come up with too.

Eve

Q: Wouldn?t the person who was paid be the buyer no matter what else?  
A: No, but I think you meant the ?seller?

The person who was paid is NOT the Seller no matter what else. 
Fortunately, it is a very strong and likely evidence that he is the
Seller.   It is also a strong evidence that YOU are NOT a seller.

Maybe I should elaborate.

Lets look at it from the arbitrator?s /judges point of view.  Imagine
this judge looking at the two of you.  Buyer says you are the Seller,
you deliberately used roommate?s account: prove that you did not. You
say, I am not the Seller, I did not use/receive/touch/see the money,
why should I have to prove anything?

Ok. In Canada, the onus of proof is on the plaintiff, in the US the
onus of proof is on the defendant.

Meaning, in Canada if I am taking you to court (the plaintiff) I have
to prove that you have committed a tort/crime.  For example, as the
plaintiff, I would have to track the cancelled check and see who?s
name was the account in, that the check was deposited into.  You, as
the defendant say ?prove it?.

In the US, the plaintiff says prove it, and as the defendant, you
would have to go dig for your evidence.  Example:. when MacDonalds was
sued for selling hot coffee, which spilled and burned some lady, McD?s
had to prove that their hot coffee cannot burn anyone, while in Canada
the lady would have to prove that it was McD?s coffee  that burned
her, not someone else?s (receipt, the time, hospital records etc).

In your case, as a defendant it is very difficult to prove it.  But
what you can do is give very strong evidence that the money was
deposited into the roommates account ? indicating it is unlikely that
you are the seller.  Note that this does not prove that the roommate
is the seller either.  Since his evidence, that you are the seller, is
verbal, based on his assumption (I assume there are no witnesses) it
is not as convincing/verifiable as yours, your case prevails.  (The
judge may also question how come you have a copy of the bank
statement.)

Let?s continue our judge scenario, because there is a more substantive
issue here.  The judge will need to determine who are the parties to
the contract.  After scratching his head he will say, ?Well, who owned
the artwork??

The law on property rights and common sense says that if you do not
own the rights to a property, you have no right to sell it. (Otherwise
frauds will be springing up all over the place, strangers selling your
house, car etc.)

You have mentioned that both of you decided you hated the artwork and
decided to sell it.  Did you or both of you own it?

You did not own it:
If you did not own it and you did not take the consideration ($), then
you are no party to the contract.  No obligation.  Unless buyer can
prove that you were the owner/co-owner, he has no claim and will NOT
be successful in court under the Tort Law.

If he cannot prove that you were the owner, but can prove that you did
get the money (i.e. the cheque was really cashed in your account ?
which I know you said it was not) he can take you to court for fraud
for taking money for something you did not own ? under the Criminal
Law.

If you did own the artwork:
Then you are the Seller because you gave permission to sell it and you
should return the funds.  Then YOU have to go after the estate for the
money

Let?s say you did own it at some point
If you own it and gave it to your roommate, the judge will look at:
when did you give it?  Before the item was sold or after?  If at the
time of the contract the item belonged to the roommate, you are not a
party to the contract.  You are not the seller.

Suggestion:
During the next contact with this person, tell them in a sincere way:
?I understand your frustration, I know you think that I am the seller.
 I assure you that I am not. I did not own the thing, I did not take
the money. You are asking for the money/artwork from the wrong person.
 Please do no contact me again about this issue. ?

Then he will blab something angry or convincing or want more information.  

You will say:
?I have already given you an answer good bye.?
It will make him mad but by now he knows that he has the wrong person.