Advertising Payment

December 19, 2004 2:54 AM

Ethics question: obligated to pay up or not? More Inside.

Suppose you decided to use a "mom and pop" run classifieds website to post a classified ad. You post the ad via a form and it is displayed on the site immediately. The fee is $30.00 (it's a thirty day ad) and is supposed to be sent via snail mail. Before posting your ad, you read the following conditions:

1) Please do not post ad if you do not intend to send payment. This is a pay for service business
2) Don't post if you're unsure about having the information online
3) Once ad is posted, there will be no refunds.
4) If the payment is not received within thirty-six hours, the ad will be removed.

You go ahead and post your ad. A day later, you find a buyer for what you were trying to sell via your online listing. You decide not to send payment since the item has been sold. You expect your ad will be removed within a couple of days and think no further about it.

Eight months later you get an email from the owner/webmaster requesting $30 payment for the listing.
You write back and tell him you ended up not needing the ad, and that you expected it would simply be removed as per #4 above. He responds with an apology about the delayed notification saying he somehow overlooked your ad and that it was not taken off. Only now, eight months later did he discover that payment was never received. He contends however, that statements 1 to 3 clearly obligate you to make payment (Aside: he removed statement 4 several months ago as he found that other folks were posting ads and not paying for them). He notes that he can't force you to pay, but hopes you will fulfill your moral obligation.

Are you morally obligated to pay?

posted by crack to human relations (45 answers total)

Yes. Legally, I bet he could take you to small claims court and win as well (although it probably wouldn't be worth it for $30).
posted by grouse at 3:03 AM on December 19, 2004

Yup. Why wouldn't you be? Because the owner didn't notice that you didn't pay him in the first place?
posted by Jairus at 3:04 AM on December 19, 2004

And isn't $30 a relatively small price to pay for the continuity of your integrity? To look in the mirror and know you're the kind of person that pays $30 because you agreed to, even though you could have been the kind of person to weasel out of it.
posted by hincandenza at 3:49 AM on December 19, 2004

You should have contacted them to cancel the ad, but it was their oversight in not following the conditions they themselves laid out. I don't think you're obligated to pay at all but I probably still would.
posted by Savvas at 3:52 AM on December 19, 2004

Savvas: There is a difference between a penalty for breaking an agreement and an option to get out of it.

The web site operator never said "if payment is not received in thirty-six hours then you will not owe us any money," they said the ad would no longer be published. I'd say you'd still owe them money even if they did pull it down after 36 hours. You agreed to pay for the ad, not to have a 36 hour trial period.
posted by grouse at 4:16 AM on December 19, 2004

Morally, yes. You placed the ad. You just happened to sell your stuff quickly. Pay up.
posted by damnitkage at 4:39 AM on December 19, 2004

i see your argument - that in this age of automated handling, you expected things would be cancelled automatically. but you also say it's a mom+pop website, so it's clear you understand the difference here. you don't really expect a mom+pop website to have automated everything, so don't use that as an excuse (in fact it's more of a reason to be straight with them, in my opinion).

next, they made a mistake, but you were bending the rules - there's nothing explicit in the agreement about a trial period or the possibility of cancelling if you sell within 36 hours.

so on both expectation and behaviour you come out even. which means that on mitigating factors it's a draw and the question comes down to the fine print. and the fine print is that if you post, you pay.
posted by andrew cooke at 5:56 AM on December 19, 2004

If you had to post the question here, looks like it is bothering you..

Pay! You'll feel better... and it is the right thing to do!
posted by HuronBob at 5:56 AM on December 19, 2004

Yes. grouse described it best: "There is a difference between a penalty for breaking an agreement and an option to get out of it." The fact that they did not enforce their penalty--regardless of whether they did so intentionally or through oversight--does not change your responsibility to pay them. You owed them $30 the second you posted the ad.
posted by DevilsAdvocate at 6:15 AM on December 19, 2004

You owed them $30 the second you posted the ad.

Exactly. And it's a mom-and-pop operation, so you're not sticking it to The Man if you welsh. Pay up.
posted by languagehat at 6:32 AM on December 19, 2004

Oh so let's see, there is a provision that reads :

1.If the payment is not received within thirty-six hours, the ad will be removed.

This seems to me to be like a grace period. Mom & Pop know that some problem may happen for payment (that they surely want) so they give this grace period of 36 hours. After said hours, if no payment is received the ad is removed.

Apparently they had no problems giving you immediate satisfaction (you immediately get the ad posted) even if they know there could be problems in payment and they also took the risk of not receiving the payment (which can happen also with insolvent people that are insolvent because of adverse situation (act of God for instance) not necessarily always dishonest).

This propension to immediately give satisfaction makes the think that mom&pop would rather take the risk of losing the revenue then losing a client..and probably also know that a sale is less likely to happen in 36h then in more time, all other conditions equal.

This is a well tought strategy, business like, very unlike hard working mom & pop store (imho)...also mom&pop had the occasion to ask for payment -before- posting, but they choosed not to exercise it and take the risk.

Therefore
1. you should pay, if you want to feel good with yourself
2. I wouldn't pay, for the grace period was offered for free and they should have charged a minimal amount for posting and then a major amount for keeping the post on for 30 days
3. I have problems thinking there's anything "moral" in business or that there should be. I guess business should succumb to human rights, but that's another history.

On a tanget: lawyerfites , what does the law say regarding the conclusion of the contract ? I guess the will to "close and accept the deal" is perfected and materializes the moment one accepts the conditions of the contract, but I guess that there's something wrong in the other party accepting to deliver the service without payment then complaing about the lack of payment.
posted by elpapacito at 7:31 AM on December 19, 2004

The fact that the business didn't take any action for eight months (even neglecting actions stated they would take in their own contract) would not reflect well on them in small claims court. As if the absurdity of suing for $30 wouldn't irritate the judge enough. But technically, a contract is a contract is a contract. That they failed to remove the listing due to non-payment is not a contract-breaking action, it's just being generous.

Personally, I think you should have contacted them immediately and said "I don't want this ad, I am not going to pay." Though who would expect them to track you down after eight months and ask for payment? Bizarre, certainly. But the right thing to do is pay.
posted by mek at 7:42 AM on December 19, 2004

mek: well dude, the sun is the sun is the sun too. That doesn't mean anything as it's an equation :) which is obviously always true, doesn't add any truth :D

If the business is so troubled by not receiving the promised payment , which may happen also because of problems NOT depending from the will of the other contracting party...if they so much want payment, why didn't they wait to receive it BEFORE positing the ad ?
posted by elpapacito at 7:50 AM on December 19, 2004

"If you don't pay your rent you will be removed from your apartment."

You still owe them the rent for the time you lived there.
posted by jon_kill at 7:57 AM on December 19, 2004

Pay.
posted by LarryC at 8:38 AM on December 19, 2004

What jon_kill said. And LarryC too.
posted by faceonmars at 8:45 AM on December 19, 2004

Do you really need to ask this question? Pay!
posted by caddis at 8:57 AM on December 19, 2004

You decide not to send payment since the item has been sold.

that's where you morally tripped up. You agreed to pay when you asked for the ad to be posted, so you cannot ethically "decide not to send payment" at this point.
posted by mdn at 9:18 AM on December 19, 2004

Speaking as a larval lawyerfite who is NOT YOUR LAWYER AND IS NOT CREATING A LAWYER-CLIENT RELATIONSHIP WITH YOU, I say you should pay, for two reasons.

First, you received the benefit of having the ad posted. The quid pro quo was having an ad online for 30 days, and at one point, you thought that was worth $30. Thus, even in the absence of a contract, they rendered you services worth something around $30.

Second, you did have a contract with them -- their form constitutes an offer and your filling it out was an acceptance. What are the terms of that contract? It's a bit ambiguous, but based on the ways I've seen courts read contracts, the 36-hour rule is a lot more likely to be construed as a self-help rememdy for breach on their part than as a grace period for you to back out of the contract. Within that, I expect that a court would say that it's not their exclusive remedy, so by not taking down your ad, they didn't forego their right to collect.

It's not a slam-dunk case, and may depend a lot on what state you and they are in, but you've got a solid ethical obligation to pay, backed up by a more-likely-than-not legal one. Pay up.
posted by grimmelm at 10:27 AM on December 19, 2004

You go ahead and post your ad. A day later, you find a buyer for what you were trying to sell via your online listing. You decide not to send payment since the item has been sold.

They provided a service to you which you took successfully advantage of. You owe them money for the service they provided. End of story. No amount of tortuous reasoning will negate that.


Pay up.
posted by googly at 10:34 AM on December 19, 2004

Their form was poorly worded. #4 should have said, "Placing an ad with us constitutes a contract to pay. If we do not receive your payment within 36 hours, we will remove your ad from the website until payment is received; any time between that time and the time when payment is received and the ad is returned to the website will be included in the 30-day insertion period."

Send them the $30. You do owe it to them. It's not a "grace period"--most things sell from ads within the first 48 hours or not at all. They just wanted to give you a little time to get the money to them.
posted by Sidhedevil at 10:36 AM on December 19, 2004

Pay. For the reasons above, and further because it's a mom and pop website. You obviously thought this service would be useful and that the site was decent, and the odds are that they don't make a huge profit - would you want to be partly (though perhaps a small part) responsible for them going under/having financial problems/etc? If you prefer to support local businesses, this is basically the same thing. And what if you wanted to put up an ad with them ever again? What if you were to ever run into the owner of the site in a professional context? (unlikely, but remotely possible) So there are legal, ethical, and business reasons for paying and even perhaps apologizing to the owner.
posted by advil at 11:59 AM on December 19, 2004

This is exactly why there are wordy legalese on everything, it's a necessity not a burden.

I'm going to break the general sentiment in the place. I don't care if it is Wal-Mart or a Mom & Pop, bad business is bad business. Wal-Marts don't start as conglomerates.

I'm a big fan of consumers in cases like this, and I think the fact it's a small business makes us all want to "help out", but I for one, don't think you should be subsidising this. He was unable to pay a lawyer, yet as part of his business wanted to allow immediate turnaround -- going so far as to allow posting of ads without payment. He had apparently very, very bad checks in place to make sure this works (8 months, Jesus!). If this was a non-profit or very-little profit community site, where everyone knows the profits go towards making the experience better, I'd say chalk it up to charitable donation.

From what you stated though, most importantly you the consumer were misinformed about how it worked. He could not even follow his own policies. You did not wish to have the ad placed so you withheld payment. As a responsbile businessman he should have caught this, he did not. It is his fault, barely. Capitalism is a bitch.
posted by geoff. at 12:00 PM on December 19, 2004

no geoff. wordy legalese is there because we have to live with people like you.
posted by andrew cooke at 12:31 PM on December 19, 2004

I reread it, you sold the good VIA the web site? That without posting this ad you would have not had the good sold? Then yes you should pay.

I was under the initial impression that you sold it via other means and no longer needed the services of the site.

I still stand by my stance that if he sold his good and this site had nothing to do with it he should have paid based on the wording.
posted by geoff. at 12:47 PM on December 19, 2004

You are so obliged to pay I don't understand why this needed to be an AxMe.

Let's dissect the agreement anyways, though, shall we?

Term #1: You have to pay up, no freebies here.
Term #2: Irrelevant.
Term #3: Once you post you pay or ELSE!
Term #4: If the world explodes, we're going to give you 3 days to find a way to get some money to us.

What part of those terms are confusing? Or is it the fact you got away with not paying for 8 months that is confusing you?

I could understand if this was like a phone bill, where over 8 months of them, say, forgetting to bill you, the bill ends up thousands of dollars and you can't pay that you might welch. In that case some blame lies on the company who forgot to bill you. Some even lies on this company for not asking for the money earlier. But it's not like you don't have $30, and it's not like this should have come as a surprise to you, *AND* it's not like it's a recurring bill.

Sp, pay up.
posted by shepd at 1:16 PM on December 19, 2004

Wouldn`t this fall under the, `Sir, you`re clearly being an asshole`clause if taken to court?
posted by jon_kill at 2:08 PM on December 19, 2004

C'mon... 'fess up. You didn't like the advice your conscience was giving you so you floated the question here on the off-chance you'd hear a differing opinion, right? But you didn't, so now you can do the right thing.
posted by idest at 2:33 PM on December 19, 2004

You followed the rules and they didn't. I don't see why you should pay.
posted by pwb503 at 3:14 PM on December 19, 2004

You sold the item 'cause the ad was on their site. To not pay would be exploiting the purpose of their grace period, which I assume is for people who change their minds and not for those who manage to sell their item quickly. If the guy had contacted you about your item on the fourth or fifth day you would have paid the dude, so I don't see why selling it before then means you get to exploit the webmaster's good will. In fact, I'd feel even more ethically obligated to pay, since his site was so effective in getting my item sold.

Jeez, he was pretty nice to you when he contacted you about the ad later . . . wouldn't you feel bad about ripping him off?
posted by schroedinger at 4:38 PM on December 19, 2004

crack wrote:

"A day later, you find a buyer for what you were trying to sell via your online listing."

Just to be entirely clear here - was the buyer found through the online listing, or through another source? That is, did you post, get a response to the post the next day, then decide not to cough up for the 30 days? Or did you post, then have a friend pop round and say 'you know, I think I'll take that Mongolian silkworm wrangling prod off your hands after all'?
posted by obiwanwasabi at 4:56 PM on December 19, 2004

Your question sounds to me like:

I was hungry, so I went into a restaurant and ordered a $5 hamburger. I ate the burger and then wasn't hungry anymore. Then the waiter gave me the bill, but I wasn't hungry anymore. Should I pay the $5 even if I'm no longer hungry?

Of course you pay for services you've requested. However or whether you use the services shouldn't come to bear on the ethics of payment.
posted by squirrel at 6:51 PM on December 19, 2004

Just to be entirely clear here - was the buyer found through the online listing, or through another source?

Even if the item was sold through another source, the contract was agreed to when the form was filled out, so it wouldn't make a difference. The first guideline makes this expressly clear. I don't know what the case would be legally, that is, technically, but ethically (as in, the spirit of the thing) I think it's clear that you're obliged to pay.
posted by mdn at 7:16 PM on December 19, 2004

Pay.
posted by subgenius at 8:03 PM on December 19, 2004

Pay.
posted by ColdChef at 8:26 PM on December 19, 2004

I'm a "special auditor" who examines probity and propriety issues. I examine a person's or organisation's actions to determine whether they did the right thing, and whether they acted honestly. I'm generally regarded as somebody who takes a hard line - that is, I often say that something was improper or dishonest, while others might argue that it's a grey area and that we should cut the person or body in question some slack.

So, it is with some surprise that I find myself disagreeing with the majority of people here - based on the information crack has provided (and yes, I'm assuming that it's complete and accurate), I don't think he/she should have to pay.

Crack's assumption that the ad would simply be removed if payment was not sent, and that there would be no foul because this was stated up-front, is a reasonable one. I don't think crack was obligated to contact the service provider to let them know that the ad was not required, again because this was stated up-front.

I'm not even sure that crack accepted a contract. I think that the terms and condition were merely an invitation to treat. If I walk into a shop and take socks to the counter, there's no contract - they've invited me to treat by opening their store, I'm making an offer by taking the socks to the counter. They can accept (by taking a consideration - the money), or they can refuse, or I can counter-offer, or whatever.

Crack made an offer - "I see that you are open for trading. If you post this ad, I'll send you $30; I understand that if I don't send you $30 in three days, you'll pull the ad down". There's no evidence that they accepted (the ad was likely placed automatically through the form, and I doubt a computer can accept a contract on your behalf), and there was no consideration.

If they did accept, it's not crack's fault they didn't follow the contract. If there is a contract, then it specifically provides a remedy for non-payment - the ad gets pulled. This should be the only remedy available to the service provider, because it's the only remedy in the 'contract'.

Being late on your rent isn't a particularly helpful analogy. A better apartment analogy might be:

You see an ad offering an apartment - 'genuine enquiries only, no timewasters, one month's rent to secure, no refund of security if you change your mind, three days to give security'. You call and offer to take the apartment. You have every intent of taking the apartment and paying the security. The landlord tells you again that you've got three days to pick up the keys and pay a security of one month's rent - if you don't, he'll give the apartment to somebody else. You take a cheaper apartment the next day. You don't call the landlord, because he's already told you that in three days he'll give it to somebody else.

Should you still have to pay one month's rent on the first apartment? Do you have a contract with the landlord? I think the answer to both questions is "no". It might be inconvenient for the landlord - he's three days down - but he's the one who put forward such a clause in the first place. Until you hand over the agreed consideration, and he accepts it and hands over the apartment, you're just having a chat about an apartment - nothing more.

Ditto for crack's ad - the consideration was $30, and the rules said what would happen if it wasn't paid. If they want to let you sleep over in the apartment for a couple of nights before you pay the security...erm, put the ad online before you pay, that's their problem, not yours.

I think that this view is supported by the service provider's own actions - that is, they removed the fourth clause from their terms and conditions at a later date, admitted that the error was theirs and that they couldn't force crack to pay.

Offer a compromise - $3 for the three days the ad was online. After those three days were up and they hadn't received the money, it became their problem, not yours, because they didn't apply their own remedy.
posted by obiwanwasabi at 8:29 PM on December 19, 2004

I'm not even sure that crack accepted a contract. I think that the terms and condition were merely an invitation to treat. If I walk into a shop and take socks to the counter, there's no contract - they've invited me to treat by opening their store, I'm making an offer by taking the socks to the counter. They can accept (by taking a consideration - the money), or they can refuse, or I can counter-offer, or whatever.

I disagree. Crack accepted the offer as soon as he clicked "okay" or "submit" or whathaveyou -- that was their meeting of the minds, notwithstanding his change of heart. I think #4 is a description of Mom&Pop's remedies in the event of breach -- i.e., that if crack breaches by failing to tender payment within three days, Mom&Pop don't have to keep the ad up for the rest of the month on the off chance that crack might attempt to cure the breach.

In the alternative -- if it's really worth posting this question just to find a way to rationalize stiffing Mom&Pop -- I think crack should at least post a link to their site so some of us can maybe throw some business their way.
posted by subgenius at 9:28 PM on December 19, 2004

obiwanwasabi, (love the username, btw) your logic would extend to my agreeing to buy a self-help book, then paying for only the portion of the book that helped me personally. Nobody sells books like that, nor do they sell adspace like that. The service offered and agreed upon was a 30-day run. It wouldn't matter if he sold the car within the first nanosecond of that month, he must pay for the whole month, as agreed.

Also:



Hmm...
posted by squirrel at 12:24 AM on December 20, 2004

if it's really worth posting this question just to find a way to rationalize stiffing Mom&Pop...

Oh dear, I'm not so bad. But perhaps a little bad. For when I first received the payment overdue email, I did not see that I was morally or legally obligated. After the second email, I felt somewhat morally obligated, but I wasn't yet convinced that it would be unjust of me to not pay (though it seemed indecent to not pay anything). I asked the owner for some time to think about it, and in the meanwhile, sent in half the payment. Eventually I decided that it would be the morally decent thing to pay in full. Yet it still struck me that although this was the courteous thing to do, it was not necessarily obligatory. I felt it would be truly jerky to not pay, but not unjust. I should have asked the question in terms of this distinction .

The apartment analogy is in keeping with the way I saw my own situation. Not notifying the landlord is a shitty thing to do even though he put forward the three-day clause. But the landlord is not entitled to the one-month rent money for that impropriety. In my case, I saw that I should have notified the guy, and so I decided (eventually rather than immediately to my discredit) I ought to pay in full. But the question of obligation--as a matter of justice as opposed to mere manners--was not settled for me.

grouse: There is a difference between a penalty for breaking an agreement and an option to get out of it. The web site operator never said "if payment is not received in thirty-six hours then you will not owe us any money," they said the ad would no longer be published.

I'd say you'd still owe them money even if they did pull it down after 36 hours. You agreed to pay for the ad, not to have a 36 hour trial period.

In considering the counterfactual above, I had concluded this was not what #4 meant. I did not think of it as a mere penalty clause, and that I would be liable even if the ad were taken down after 36 hours for non-payment within that time frame. Reading it this literally would mean that the following counterfactual must also hold: If payment arrived 48hrs after the ad was published, as penalty, the webmaster reserves the right to take my ad down yet keep my money. I just did not think that is what #4 amounted to. However, that is how the "fine print" technically reads.

But although I did not read it as literally as grouse, I did not read it so liberally as to think of it as an opt out or free trial clause either. This is why it would be rather ungentlemanly to post an ad and then "forget about it" knowing it would be taken down (at the inconvenience of the service provider). It's just not cool. But unjust? I vacillate on this question. But I agree with those who said "pay up" in so far as it is clearly the decent thing to do.

Thanks for the comments, if anyone has input on the distinction I have tried to make here (or anything else for that matter), I'd be interested to hear it.
posted by crack at 1:18 AM on December 20, 2004

geoff., to justify not paying, says:

This is exactly why there are wordy legalese on everything, it's a necessity not a burden.

I'm a lawyer, so from a self-interest standpoint I appreciate the idea that everyone from mom & pop's classifieds website to Wal-Mart should hire a lawyer to construct sentences, but I'm surprised that the generally lawyer-hostile MeFi community didn't jump all over this one.

It would be a pretty crummy world if we all reverted to the "well, you didn't stick enough legalese up there, so you're out of luck" school of business transactions.

It's like the famous "we have cameras" thread. Some things are almost transparently wrong, even though our literal brains and our inate desire to take advantage of a rare opportunity may provide us some good talking-points for the opposite position.
posted by AgentRocket at 6:39 AM on December 20, 2004

You agreed, contractually, to pay for a service on clear "net 36-hour" terms. The service was provided. Please now pay your credit obligation.
posted by majick at 7:08 AM on December 20, 2004

crack, I appreciate your position--they are business owners and should have written their terms more clearly.

However, you knew what they meant (what I said above--if your payment didn't arrive within 36 hours, they would take your ad down until such time as payment arrived).

It might not be unjust of you not to pay, but it would certainly be unmerciful.
posted by Sidhedevil at 10:36 AM on December 20, 2004

I still say there was no contract. There was an invitation to treat, and there was an offer from crack. They never accepted (a computer processing an HTML POST request is not the same thing as accepting a contract), and it took them 8 months to realise. There was no consideration, and you can't have a contract without it. There's certainly nothing that says the ad will be taken down "until such time as payment arrives".

To use my socks example again, you all seem to be saying that by putting socks on the shelves and providing a check-out the store is making an offer, and that by taking socks to the counter and having them scanned I'm accepting the contract. That's simply not true - there's no contract until I offer them money, they accept it and give me the socks. If they decide at the counter they don't want to sell to me, or if I change my mind before I give them the money, or if they take the money but don't hand over the socks, or if I don't give them enough money, there's no contract - the socks go back on the shelf, and I'm not obligated to pay them a cent.

If I just stand there and don't give them the money, they'll eventually ask me to move along and put the socks back on the shelf. They can't write to me in 8 months time and ask me to pay for the socks because I offered to buy them, then didn't, and that as a result they incurred check-out and shelf-stocking expenses.

Clause 4 does the same thing - send us your ad, and our computer will put it online (pick up the socks, and our checkout operator will scan it). That's just pre-contract legwork - there can't be a contract if one of the parties didn't even know this had happened for 8 months. The contract has to be between real people, and Mom and Pop put a sign up in the shop window to let you know that if they didn't get their money, they were going to put the socks back on the shelf / tell the computer to take the ad down again. That's the end - no contract, no consideration required.
posted by obiwanwasabi at 5:32 PM on December 20, 2004

send us your ad, and our computer will put it online (pick up the socks, and our checkout operator will scan it)

Not equivalent, obiwan. As soon as the computer puts the ad online, the value is being delivered to the customer. Merely scanning the socks is not the same: no value delivered. In order to be accurate, your analogy would have to include some kind of wearing of the socks, since that's where the value is. And, as most people agree, once you wear a pair of socks, you can't return them. Maybe some places you can, but my point is that these is a difference and thus your analogy is faulty.

I'm sure glad there are other people who like to kick this stuff around as much as I do.
posted by squirrel at 12:12 AM on December 21, 2004

Also this, from my friend Como, whose profession is Ethics:

It's important to remember that statements about what is legal or what would happen in court say nothing about what is ethical. This awareness is a condition of civilization. The offer made by the proprietors of the site is a species of unilateral contract of the form: We will allow you to post on our site if you promise to pay $30. Thus by posting on the site you promise to pay $30. So the relevant ethical question is just an instance of the general question as to whether one ought to keep promises. Thus to think it is perfectly ok not to pay since one thereby gains no additional benefit is like ascribing to the ethic: only keep promises when it serves one's interests. This is the ethics of a dirtbag. So the best way to answer this question on a personal level is to look in the mirror and ask: am I a dirtbag? If the answer is "yes", don't pay!
posted by squirrel at 8:04 AM on December 21, 2004