Exchange Sales - seller disclaimers about legality, age of buyer

TRfromMT · Dec 12, 2018

So, I see a lot of sales posts by individuals with some small piece of text stating some really legal-sounding disclaimer that the buyer has to be 18 years old, know and follow their knife laws, by purchasing the knife asserts that the have the legal right to own that knife in their state, etc., etc.

Is there really any legality to these statements?
If some not-18 year old buys a knife on line from an individual seller here and gets busted doing something dumb, is there some recourse that could come back to the seller?
Is there any obligation on the seller's make sure things are not sold to people who cannot have them?
If there is an obligation, isn't there then some sort of obligation for the buyer and seller to prove and verify proof of legality?

I don't know - it just seems like a lot of words for no purpose.

Would love to hear some legal expertise weigh in...

Enkrig · Dec 13, 2018

I'm not sure of any form of "legal obligation", but I'm not a lawyer. I've used disclaimers as a way to avoid legal responsibility in the event that someone comes back saying that I sold a knife to someone I shouldn't have. Without the disclaimer, and even if I did not have the information to verify whether the buyer was breaking some law, a lawyer/prosecutor could always try to make an argument that I did not conduct "due diligence" in verifying the transaction. My thinking is that, with the disclaimer there, a lawyer would have a much weaker case because the buyer agreed to the terms of the transaction, which includes the disclaimer, thus shifting responsibility to check the law to the buyer. My hope is that it will dissuade the attempt to prosecute of even a lawyer looking for a weak point. In the end, it is not an element of right or wrong, or legal obligation; I'm simply trying to avoid having to deal with the justice system and handling the associated costs.

Still, I think that no disclaimer will save a seller breaking federal laws of interstate commerce. I'm mainly thinking of switchblades (and perhaps ballisongs) here.

hhmoore · Dec 13, 2018

If the buyer is a minor, the disclaimer is meaningless.
I doubt the other portion is of any more value.

Enkrig · Dec 13, 2018

hhmoore said:
If the buyer is a minor, the disclaimer is meaningless.
I doubt the other portion is of any more value.

Thank you. I had not thought of that element.
That said, are you able to offer a constructive alternative or are you simply advocating that one shouldn't sell/trade any knives?

hhmoore · Dec 13, 2018

I'm not advocating any such thing...I merely offered my opinion of the disclaimers you mentioned.
As an example, I live in a state which has some restrictions on knives. In most cases, I can legally own them; so, by the terms of the disclaimer (I know the law, and can legally own the knife) I'd be set...but the laws restrict carry/use, so what's the point? The onus is on the buyer to obey the laws; so the disclaimers are nothing more than a feel good effort... much like the statement some sellers throw in that their responsibility ends when they turn the package over to the post office (that would hold no weight if the item wasn't delivered - paypal or the credit card company would still refund)

Enkrig · Dec 14, 2018

I agree with you that the disclaimer is not necessary with regard to use/carry as it obvious that that's the buyer responsibility.

I fail to see how it is meaningless with regard to the ownership element of the sale. For example, consider the sale of a dirk or stiletto that is legal in the seller's state but it is *illegal to own* in the buyer's state. If the buyer acquires buys the knife, he/she will be breaking the law. But is the seller without any responsibility for having sold the item? Perhaps there is no "legal obligation" per se that makes the seller culpable, but one could still be pulled along for a long (and costly) judicial battle. As I've tried to argue, the disclaimer is mainly to explicitly shift that responsibility to the buyer, and dissuade the potential for a lawsuit. You've made a very good point that a completely different standard of responsibility is applied minors. For all others, why do you doubt that it is of any value?

glistam · Dec 14, 2018

To put in some additional information beyond what's already been said, disclaimers have a few explicit limitations. Namely that a disclaimer does not absolve the seller of any regulation that is explicitly about sale. While that might seem obvious, the most common one is actually missed by most sellers: Switchblades. Unlike the vast majority of knives, automatics or switchblades have federal regulations on sale. If a person sells a switchblade to someone outside their own state, and that sale is not an explicit procurement contract with the US Armed Forces, the disclaimer will do zero to get them off the hook. I'm specifically calling this one out because even well-established, full-time knife sales companies fall for this when they offer autos for sale and think that little "By checking this box, you agree that" etc etc is going to save them from getting prosecuted, especially considering the buyer may not have actually broken any law in making the purchase.

NMpops · Dec 15, 2018

I have never heard of any state or federal law establishing an age requirement for owning or buying knives of any kind.

TRfromMT · Dec 15, 2018

I guess I'm wondering if putting the text in a sales post has any bearing whatsoever in the event the purchaser does something stupid/illegal or is actually not legally allowed to own the knife.

Maybe no way to tell. I just think the way some of them are worded... "By making an offer the buyer asserts..." for example, sound like the seller is trying to come off as a written by an attorney. I am not mocking this, it just seems pointless.

tom19176 · Dec 15, 2018

NMpops NY has a law that you must be 16 to buy a knife. I do believe it can't hurt to have warning stating that you should know your local laws, and that persons under a certain age should not buy them without adult approval.

sgt1372 · Dec 18, 2018

There are "dram shop" laws that extend liability to bartenders (and their employers) for drunk driving violations caused by people served too much alcohol based on the theory that the bartender knew or should have known that the customer was drinking in excess and negligent in continuing to serve alcohol to that person.

There have been many lawsuits that have tried to extend gunshot wound injuries/deaths to the sellers and manufacturers caused by the "improper" use of guns lawfully made and sold and, as far as I know, none of those lawsuits ever succeeded, even before the Congress (at the instance of the NRA) passed a law exempting gun seller and manufacturers from such liability. Product liability for death/injuries caused by defects in the manufacturer of firearms still exists and was unaffected by this law.

So, with regard to knife sales, there should be no liability to a seller for improper use of a knife that causes any personal injury or death; provided that the knife was sold to anyone legally entitled to own such a weapon.

However, the seller of a knife to a minor or someone who is known to be mentally incompetent and not legally entitled to purchase a knife, who uses the knife to kill or injury someone, could be held liable in whole or part for the injuries caused as a result, based on the same legal theory that underlies the dram shop laws.

Whether the disclaimer that some sellers on the BF Exchange is sufficient to exempt them from any liability arising from the misuse of any knife sold there is another matter.

The question will turn on whether the seller's reliance of the disclaimer was legally sufficient or not and my guess is that it is not because, based on my experience as a buyer, no seller has ever asked me for any proof of my age and whether or not the knife that I was buying was legal for me to possess or not.

Simply stating in your ad that the buyer is "expected" to be of legal age and legally entitled to purchase the knife IMO (as a retired LEO and attorney) is not enough. However, the likelihood of ever being actually being subject to any liability for the misuse of a knife sold on the BF Exchage (or elsewhere) is extremely remote but the possibility of "some" liability exposure exists nonetheless.