This may be a familiar tale, but if you suffer through it there’s good news at the end.
You watch the Pro Tour. You see what cards are doing well. Paying attention and being ahead of the curve, you find a store online and decide it may be time to buy all of their Tidebinder Mages for a dollar. You complete the purchase and send off your money.
Just a few hours later, the card quadruples in price. Congrats, you made the right call! Now all you have to do is wait for your cards to come in, and then you can sell them for a nice profit.
Except not. You wake up the next morning to find an e-mail telling you the cards won’t be shipped, either because they’re “out of stock,” or “oversold,” or “incorrectly listed.” Sometimes, sellers are even more transparent. “Given the price change, I can no longer honor the original price. Here’s your money back. PEACE.”
You rage. Understandably. Not only are there no cheap copies on the market anymore, but you don’t even have the play set to build your own deck with! In short, you’re screwed.
Or are you?
Taking Legal Action
“I’m calling my lawyer!”
This is many people's first reaction upon finding out their order has been canceled. You want to sue and get all the Merfolk. After all, you had an agreement and they reneged on it. Surely that’s not legal.
As the rage burns itself out, you realize it’s just not worth it. Lawyers are expensive, lawsuits are expensive and your time is expensive (though not as expensive as your lawyer’s). You come to the understanding that you got burned and there’s just nothing you can do about it.
Like I said, it’s a familiar story, and one that most of us have gone through before. But it’s also one with an open question, a plot hole not unlike that of Indiana Jones and the Raiders of the Lost Ark (seriously, last week’s Big Bang Theory was traumatic in regards to that movie. If you don’t get the reference, don’t ever watch the episode; it will kill Raiders for you).
Anyway, the question is simple: If you wanted, do you have the legal right to pursue the cards?
We all understand that it’s not cost-effective, and it’s extremely unlikely to ever actually happen. But what I’ve never seen addressed before is whether or not it actually could. This is important to know because it determines whether or not we can e-mail the company and credibly threaten a lawsuit in an attempt to get them to honor the agreement.
So after the uproar that followed last week’s Pro Tour, I set out to find the answer to that question. And it’s a lot more murky than you might expect.
I consulted with several lawyers on this subject, and opinions varied, though a few things became clear from my research. Everything from this point forward applies only to the United States, because I’m unable to research the laws in other countries well enough (and it varies across the world, I’m sure).
What is clear is that, in principle, it is illegal for stores to cancel your order because the price went up.
I’ll quote our own Doug Linn to explain:
“You absolutely cannot cancel a sales contract because the underlying asset went up in price. It's Uniform Commercial Code Art. 2. 2-713 says that the seller is liable for the current market price of the goods, not what they were when you contracted for them. Since these are interchangeable goods (not a golfball-shaped water tower) the seller must either make you whole with the goods or make you whole with the benefit of the bargain--the current market value.
It's baffling to see people say "they don't have to do it, they can just refund you the money." Futures markets exist.
Add enough zeroes to these transaction losses and there are actual legal principles underpinning them.”
Speaking of the specific law, here it is. Uniform Commercial Code Article 2. 2-713:
“(1) Subject to the provisions of this Article with respect to proof of market price (Section 2-723), the measure of damages for non-delivery or repudiation by the seller is the difference between the market price at the time when the buyer learned of the breach and the contract price together with any incidental and consequential damages provided in this Article (Section 2-715), but less expenses saved in consequence of the seller's breach.
(2) Market price is to be determined as of the place for tender or, in cases of rejection after arrival or revocation of acceptance, as of the place of arrival.”
What this means is that if I bought 100 Master of Waves at $5 and the current market price is $20 when my order is canceled, I’m entitled to the difference. 100 Masters at $5 is $500, however 100 Masters at $20 comes out to $2,000, so in this case I would be entitled to the difference of $1,500 from the dealer who canceled my order.
Awesome, They Have to Pay Me!
Of course, here come the caveats, and the murkiness I alluded to.
Most stores have a terms of service page that basically says “we can do whatever we want, and you agree to this when you buy from us.” For instance, CoolStuffInc, a large site that I know canceled orders last week, has this in their Terms of Service:
“We reserve the right to decline the purchase of any item for any reason. We reserve the right to cancel an order for any reason. We reserve the right to reduce the purchase quantity of any item for any reason.”
If that reads like a Get out of Jail Free card, it’s because it is. Taken at face value, it gives all the power to the dealer. Hell, it means they can cancel your order simply because they don’t like you. But of course we only ever see this invoked when it comes to speculation.
Now the confusion. There’s some disagreement over whether there’s even a contract formed at the time this agreement, since only one party (you, the buyer) is actually bound to anything because of the Get out of Jail Free card the dealer has inserted into the bargain. There’s no obvious precedent for this in the courts, so it’s a grayish area.
But the consensus does seem to be that this Get out of Jail Free card policy is enforceable, because when you click “buy” from the store you are agreeing to abide by their policies. That removes any liability from them, and you are screwed, sorry.
Okay, so far we’ve determined two things.
- It is illegal for stores to cancel your order because the price went up, unless:
- They have a clause giving them that option in the Terms of Service you agreed to when you purchased cards.
Back to Square One
Like many of you, I’ve been in this situation before, and the first time it happened the way I handled it was to throw a very public fit.
The night Mental Misstep was banned, I looked around for a place to buylist the 25 or so copies I had. I settled on Channel Fireball, because even though they weren’t the highest buy price I expected a store of that repute to honor my order.
They didn’t, and I very publicly called them out for it. As it turned out, a friend of mine knew one of the important names involved in this transaction, and they stepped in and both honored the order as well as gave me $20 in store credit on top of it.
Yes, this had a happy ending for me, but I’m not particularly proud of the way I handled it. As we’ve determined, they had every legal right to do what they did. While I also had a right to decry their decision, the truth is I should have tried to handle it privately before blasting them.
Of course, that’s just my take on that experience. Plenty of people agreed with my decision at the time to call them out, and it’s certainly not one I can begrudge people after you have the rug pulled out from under you.
The Good News
Now I have some good news, and then some better news.
The good news. Not every store will do this to you. Star City Games, for instance, honors every sale they make, as do many other stores that don’t think saving a few dollars is worth alienating customers and creating bad publicity (in other words, any store with a basic understand of public relations).
This is awesome. We should be appreciative of these dealers, and I have no problem giving credit where it’s due in a public forum.
More good news. Not every store actually has a Terms of Service page, at least not one actually constructed properly.
I once bought a bunch of Scapeshifts from some store that later tried to cancel my order. Learning from my previous experience, the moment they told me my order was canceled I went to their site and looked through the Terms of Service.
It didn’t exist. I pointed this out to them, and they tried to tell me that it was “temporarily pulled down and under construction, and would be back up tomorrow.” I allowed them that obvious lie but pointed out that they were not posted at the time of the purchase, so I was not bound by them.
In the end, they shipped me eight of the 17 Scapeshfits I ordered from them at the original price, and refunded me the rest of my money. Not the worst compromise in the world.
The takeaway from that story is this: Do some research before you buy. Find stores you know will honor the sale (We even have a forum solely dedicated to this!). If you’re buying from a new place, look for their terms of service, and if they don’t have a Get out of Jail Free clause listed, screenshot the page so you have proof later on. Again, it’s not going to be financially worth it to take them to court, but you may be able to work out a compromise like I was able to.
Now, the Really Good News
One of the first places we go to when speculating is TCGPlayer. A ton of cards and stores are listed and you’re able to pick up a bunch of copies. I know some of you have had trouble buying cards from there and later having your orders canceled or reduced, so I hope that this helps.
From the TCGPlayer Marketplace Seller Agreement that every single store and/or individual seller must agree to when they list cards on the site:
“Sellers are required to sell items at the price they listed to customers that meet the seller’s terms. By listing an item in our marketplace you agree that you have the right to sell the item, the item is in your possession and that your description provided in your listing is complete and accurate. Sellers are not allowed to drop ship or sell items they do not physically possess. Sellers are required to ship an order by the provided ship date and follow the [TCGplayer Shipping Guidelines]. Failure to ship by the provided date or follow the [TCGplayer Shipping Guidelines] may be grounds for termination of your Account.” (emphasis mine.)
Every single card you buy on TCGPlayer is guaranteed to be delivered.
If the seller refuses to do so, they are responsible, not you. Of course, you may not end up with your cards, but you can report that seller to TCGPlayer and there are, I assume, real consequences for dealers that do this.
It does not matter what that dealer’s site says. When you purchase cards on TCGPlayer, you are playing by their rules, as is the seller, and it doesn’t matter what that individual seller’s own Terms of Service may say.
This was a revelation to me, and one I hope helps you out in the future. Like I said, this isn’t some magical policy that will guarantee you will receive your cards, but it’s a layer of protection you don’t have anywhere else. That’s huge.
Wrapping up, I’ll point you here one more time. This is an invaluable forum, and one I hope you use to your advantage the next time you’re looking to buy a speculative order. I learned a lot researching this article, and while it’s not all great news, it is knowledge. And we all know that in Magic, knowledge truly does equal power.
Use it well.
Thanks for reading,
@Chosler88 on Twitter