Posted By:
warshawlawI handle fraud cases for a living, so I know something about the nuances.
Take misrepresentations first. If you know something is true and you say something else (whether it is something different or something that is incomplete that will lead the listener to an erroneous conclusion), you are a fraud. If you don't know something is true and you say something anyway, you are a negligent fraud. If you don't know something is true and you say what you think based on your perceptions, you are stating an opinion that is not a misrepresentation.
Now let's talk about concealment. A fraudulent concealment consists of hiding material information from a buyer. If you hide information that may be material to the buyer, you are committing fraud.
Assuming that the cards came from the Lipset lot, could you nail the seller for affirmative fraud? Probably not. The problem with calling the card trimmed and accusing the seller of intentionally misrepresenting the facts is making the link between affirmative knowledge of the fact that the card was trimmed and making a misrepresentation on ebay as to the condition. We simply don't know whether this card was one of the trimmed cards in the Lipset lot. One of the reasons I stayed away from those lots is that I did not want to risk buying trimmed key cards. Lipset's auction description did not definitively state which cards were trimmed, it just said that most of the cards were trimmed. Since McPherson is dead, there is no way to determine whether the card really was trimmed or was merely short. I have on occasion purchased a card that was labeled as trimmed and found it to be in my view a legitimate size variation. For all we know, John bought the lot and independently decided that the card looked short but not trimmed. Now, if Lipset described the cards as all being trimmed, there might be an issue.
Is there a concealment case here? If the cards were indeed from the Lipset auction, probably. I as a buyer would want to know that the cards were from this collection and I as a seller would have posted the facts. I would have stated that the cards were from McPherson's collection and that they may have been trimmed, but that in my opinion after eyeballing the card, it was within tolerances for the issue and not trimmed. I also would have offered to permit the buyer to have SGC grade it (at his expense) with a return proviso should SGC decide it is trimmed.
My dealings with John have been good, by the way. I just refuse to buy anything listed as "short". If the cards are from the Lipset lot, I would probably decline them.