Where does overselling stand in terms of contract law?

Say Bob runs a record store. One day, Pete pops in and asks for a specific rare CD. Bob does not have it but his friend Rob does, and Bob is super sure he can persuade Rob to sell the CD to him. So Bob goes ahead and makes contract with Pete, promising to deliver the CD a couple days later.

Later same day Bob phones up Rob only to find out that he does not have the CD anymore (as a variant, under no circumstances he would part with it). So Bob cannot deliver the CD to Pete.

Is this a breach of contract? Is this a mistake? Is the contract voidable? What remedy is available to Pete? Can he sue for damages?

  • A lot need to be made clear here to make this answerable. What does "makes a contract" mean? Is this in writing, and if "yes", is the prize, timeline and condition spelled out in it. Does the contract oblige Peter to accept the merchandise? Commented Jun 3, 2018 at 12:18
  • @FreeRadical this is pure contract law question. "Makes a contract" assumes that all the 6 essential elements of a contract are present. Contracts for sale/purchase of stuff at a store do not need to be in writing.
    – Greendrake
    Commented Jun 3, 2018 at 12:28

1 Answer 1


It is a breach. It is a mistake. The contract is not voidable based on the mistake, because it is a unilateral mistake and the breaching party bore the risk of that mistake.

Pete can sue for damages: either restitution (a refund) or expectancy (the market price of the CD).

  • "Pete can sue for damages: either restitution (a refund) or expectancy (the market price of the CD)." What if the contract simply stated that Pete pays Bob when Bob is able to deliver the CD? No payment has happened yet, so there is nothing to refund. Why can't Bob just say: Haven't got the CD yet. You'll get it when I am able to get my hands on it? Is that breach of contract? I don't think so. Commented Jun 3, 2018 at 13:16
  • He promised to deliver "a couple days later." When a couple days have passed, he is in breach.
    – bdb484
    Commented Jun 3, 2018 at 13:19

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