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Suppose (Store) is planning to sell (Product) at price $N. (Store) puts up a display inside the store for (Product), say an image and a price tag. (Product) is correctly listed as out of stock and (Store) never accepts any orders, preorders, or money for (Product). After three months of trying unsuccessfully to get stock, (Store) decides to give up and pulls (Product) from the shelves.

(Customer) saw the display and really wanted to buy (Product) from (Store) for $N. Does (Customer) have any claim or recourse against (Store)?

Does it matter if (Product) was available in other stores or just never produced at all? Does it matter if other stores have (Product) but charge more than $N?

Just for the record, this is not a reference to any actual product or store.

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  • What matters is whether a contract was made between the store and the customer. – Mark Johnson Sep 21 '20 at 0:24
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    @MarkJohnson It seems pretty obvious there's no contract. I think the more important question is the scope of the state's laws governing deceptive trade practices. – bdb484 Sep 21 '20 at 1:43
  • @bdb484 The store announces that it will offer a product when it made available by the supplier (takes no orders). That in the end, the supplier fails to make the product available is not the fault of the store. This situation is more similar to a force majeure than to a deception. – Mark Johnson Sep 21 '20 at 9:47
  • Disagree. Force majeure is a pretty narrow concept (think natural disaster, war, etc.), and even then, it's only relevant in the context of an existing contract, which obviously doesn't exist here. – bdb484 Sep 21 '20 at 13:57
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Does (Customer) have any claim or recourse against (Store)?

No. The store's conduct altogether preempts a finding of unconscionable tactics. The store's conduct would not be found in violation of Oregon's Unfair Trade Practices Act (UTPA). See ORS 646.605(9) et seq.

(I am not verifying the multitude of cross-references in the UTPA, but the language of explicit items gives a general idea of what types of conduct the statute sanctions)

The store's decision to decline orders, preorders or money for the product impliedly alerts customers not to grow premature expectations on acquiring the product. Also the store's disclaimer of out of stock weakens a customer's possible allegation that customer relied on a promise of availability of the product. Accordingly, the store prevents a customer from credibly arguing that he incurred losses as a result of the store's conduct.

Does it matter if (Product) was available in other stores or just never produced at all? Does it matter if other stores have (Product) but charge more than $N?

No. The fact that the store [unsuccessfully] attempted to get stock indicates that the shortage --and hence the failure to supply the product-- is not willful. This implies that the matter is not actionable even if the customer "suffered an ascertainable loss of money or property". See ORS 646.605(10) and .638.

That being said, it is noteworthy 646.683(8)(a) lowers the requirement of willfulness [of violation] to one of recklessness in the context of class actions.

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  • Basically correct. I think the more relevant provision is O.R.S. 646.608(i): "Advertises ... goods ... with intent not to provide the ... goods ... as advertised, or with intent not to supply reasonably expectable public demand, unless the advertisement discloses a limitation of quantity." As discussed, though, the store was "planning to sell Product," so it didn't have an intent not to provide the goods as advertised. – bdb484 Sep 21 '20 at 14:09
  • usually such a display says "soon in stock" – Trish Sep 21 '20 at 16:34

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