Selling Black Powder guns???

Joey V. · January 26, 2011, 11:10 AM

If you sell a black powder gun (singe shot pistol) to someone do you bear any liability for that gun??? Looking at it from the position of this is now a used gun that I own if they do something stupid like blow themselves up could they come after me personally? Lastly, how does a gun maker say traditions or whomever protect themselves from liability?

THX

Hardcase · January 26, 2011, 11:38 AM

If you're terribly concerned, you should probably talk to a lawyer. As far as whether or not somebody could sue you if they blew themselves up with the gun, yes, of course they could. Anybody can file a suit against anybody else for just about anything. Now, if the suit has no merit, it won't go anywhere, but there's no 100% absolute protection against somebody coming after you in court.

Now, I'm not a lawyer, but I have been involved in a few product liability suits as an engineer, so this is the non-legal advice that I'd give you based on what I've experienced: if you sell a gun, make up a couple of receipts. Include on the receipt that the gun is being sold as-is, with no warranty for its performance or safety. Provide a detailed description of the firearm. If you know that the gun has a defect, put it on the receipt. Keep a signed copy for yourself.

Gun makers try to protect themselves from liability with the legal disclaimers that you'll find in the owner's manuals. They also carry liability insurance. And sometimes, they lose.

Like I said, if you're really concerned, see a lawyer.

junkman_01 · January 26, 2011, 11:39 AM

They protect themselves from liability with highly paid corporate lawyers!

Doc Hoy · January 26, 2011, 01:40 PM

By producing a relatively good product which is covered by about a dozen disclaimers printed on paper inside the box.

Even this does not ensure no law suites.

Like HC says, just about anyone can sue just about anyone for just about anything.

It may be a more pertinent question to ask yourself how confident you are about selling a safe item to a normal person when the buyer uses the item as it is intended.

If the pistol has a known safety problem, I would fix it first then sell it or I would hang onto it. When the guy comes to pick it up, a few questions will tell you if the guy knows how to use the pistol safely. In my limited experience this comes up quite often with revolvers with a very light trigger pull (among other safety considerations).

Some folks might draw up a bill of sale in which they specify the condition of the firearm and that it is being transferred to a person who is familiar with the weapon as it is and who knows how to use the weapon. Then get the buyer to sign it, acknowledging the aspects of the transfer.

On the other hand, if I sold a brand new pistol to a long time shooter which subsequently failed in a way that injured the buyer I would still feel bad about it.

BConklin · January 26, 2011, 02:18 PM

I make it a point never to sell any firearms to anyone...I only buy them

Zhillsauditor · January 26, 2011, 02:55 PM

Quote:

If you sell a black powder gun (singe shot pistol) to someone do you bear any liability for that gun??? Looking at it from the position of this is now a used gun that I own if they do something stupid like blow themselves up could they come after me personally? Lastly, how does a gun maker say traditions or whomever protect themselves from liability?

The rules differ whether you are a Merchant or not. In other words, if you are in the business of selling guns, then you are providing a Warranty of Merchantability (ie the gun is fit for ordinary purposes), unless you specifically disclaim that warranty; if you are not a Merchant, you are only providing a Warranty of Title. See your state laws and the Uniform Commercial Code (if adopted by your state).

A manufacturer of guns protects itself by buying insurance, and by its corporate structure (and by not making defective guns!).

arcticap · January 26, 2011, 03:15 PM

The gun shop receipts that I have from buying used guns don't have any disclaimer on them. Most of us have also bought used guns from gun shows without any disclaimer and with little more than the passing of money between hands for heaven's sake.
Sometimes a used gun will be marked "sold as is" or "parts gun only" on the price tag, but other than that I've never received any oversight from a gun shop about any gun that was purchased beside the paper work that the gun shop owner required.
Now some of the large outfits like Cabela's makes the used gun buyer sign a statement that they understand that the gun is used and being sold as is.
Many folks have bought BP guns that were loaded with ball and powder, and even those aren't considered by law to be loaded.
BP guns don't go off or explode all by themselves, so I don't think that condition really imparts any extra liability.
I'm not saying that a person couldn't be sued, but it's usually always "buyer beware" and a used gun is sold as is unless the gun shop or seller wants to offer a verbal or written warranty. Sometimes a gun shop will offer a refund if a used gun isn't in working condition, maybe just to avoid small claims suits or to maintain good customer relations or because they have a 30 day return policy.
From my point of view it's like buying a used car in a private sale. The buyer better get any warranty in writing because once you drive it away you are on your own. A person usually needs to prove intent to defraud and even some puffing is allowed.
Even if a seller said that they only "think" that a gun is okay to fire, that opinion doesn't mean that it really is okay and that there is some kind of a warranty or liability being agreed to.
I'm not talking about companies here as much as about private sales between private individuals.
If a used gun blows up after being purchased in a private sale then I would say that generally the seller isn't liable. Sure there may be exceptions but if a person really wants to buy a gun backed by some deep pocket liability then they should buy a new gun from a current manufacturer.
Private sellers don't really need to worry about it beside following whatever the legal requirements are like the age of the buyer.

ClemBert · January 26, 2011, 05:14 PM

I have a question to the OP. If you sell a used automobile to someone and they get in an accident....Can they sue you?

Anyone can sue anyone for anything. That's Amerika!

Zhillsauditor · January 26, 2011, 05:40 PM

Quote:

Even if a seller said that they only "think" that a gun is okay to fire, that opinion doesn't mean that it really is okay and that there is some kind of a warranty or liability being agreed to.

See my post earlier. The rules depend on whether you are a Merchant or not (at least within the UCC; state law may differ).

I just got done with discussing this with a merchant on a local Florida forum. Some retailer of guns (ie. a Merchant) was insisting that he offered no warranty on the guns he sold, even his new guns that had no "as is" disclaimer of warranty. I repeatedly quoted him the Florida statute that said he was providing an implied warranty unless he specifically disclaimed it; he insisted he had no liability for defective firearms.

Tanker6 · January 26, 2011, 06:09 PM

I agree with Zhillauditor's posts fully, but I'll elaborate on a couple of points.

First, I tell my clients all the time that there is no such thing as "lawsuit proof." All that is required to be sued is for someone to have a piece of paper, a means of priniting on it, and the filing fee.

That said, the particular portions of Zhillauditor's post about being a "merchant" under the Uniform Commercial Code (that the UCC thing he mentioned

) is all true. If you fall under the definition of a merchant, then you will indeed be providing an IMPLIED (unless specifically disclaimed) warranty that the product is suitable for its intended purpose. The suggestions earlier about of bill of sale which disclaims such warranties will help in your defense if you are sued.

The other thing I'll point out is good old negligence. Those who practice on the Plaintiff's side of the bar (and yes, I dabble over there from time to time) love negligence. Reason? It's fairly easy to get by the legal hurdles to get the issue to the jury. Then, the fate is decided by "12 people who aren't smart enough to get out of jury duty."

Negligence requires "some proof" (in order to get the jury) of (1) a duty owed, (2) a breach of that duty (3) which is cause of harm and/or damages. Now, under the scenario that you sold a BP pistol to someone and it blew up in their hand, there are several defenses which are readily available. First, the seller didn't owe a duty at all. Second, if he did owe a duty, he didn't breach it. (These are the areas where the bill of sale will likely help as well). It wasn't something that the seller did or failed to do that caused the harm (i.e. the buyer overloaded the pistol).

Not trying to teach everyone Law 101 here, but I thought it worth the electrons to point out that (1) everyone can be sued, (2) getting sued isn't fun (or cheap) and (3) taking some precautions should you be sued certaintly won't hurt your defense should that event arise.

Did anybody else see the video of the woman in the mall, walking along texting, and falling into the fountain? She's not suing over the fall, she's suing because some security camera guy let the video out and she's embarrassed.

....but I digress....

Kadmos · January 26, 2011, 06:44 PM

Or...only take cash, make no receipts, and don't mention your name.

It's tough to sue people when you don't know who they are

Hardcase · January 26, 2011, 08:28 PM

Well said, Tanker6. I saw the video, too

.

Zhillsauditor · January 27, 2011, 07:09 AM

Quote:

The suggestions earlier about of bill of sale which disclaims such warranties will help in your defense if you are sued.

I will say that I would think twice about buying new merchandise from a gun dealer (i.e. a Merchant) that disclaimed the warranty of merchantability. In all cases, if I did have to sue, I'd be suing the manufacturer for the big bucks, but if a gun dealer is selling a gun that the dealer doesn't think is worth standing behind, then there is probably something wrong with the gun or the dealer.

EDIT: that has nothing to do with used sales; I fully expect to see an "as is" sign when buying used anything.

madcratebuilder · January 27, 2011, 08:12 AM

Quote:

Originally Posted by BConklin

I make it a point never to sell any firearms to anyone...I only buy them

Me too, but some times I feel like suing myself!

Doc Hoy · January 27, 2011, 08:55 AM

Yes....and sometimes I feel like shooting myself.

junkman_01 · January 27, 2011, 10:44 AM

Doc,

Don't even kid around with words like that!

arcticap · January 27, 2011, 01:04 PM

Yet virtually every gun manufacturer disclaims the use of non-factory produced ammunition as voiding their warranty and that doesn't seem to stop anyone from buying their guns or from using reloaded ammo for that matter.
And even in that case the gun manufacturer can still be still be sued for negligence.
So much for disclaimers.
Do folks not buy used guns because of the possibility that they may have been fired with reloaded ammo at some point?

Joey V. · January 27, 2011, 04:11 PM

I have a traditions single shot pistol pistol I bought that I am tired of already and want to buy a new toy. Selling this on gunbroker or whatever would be easy because I am not looking for much at all but man the possible liability makes it not worth it I think.... I understand anyone can sue for anything at anytime but If I don't sell the gun then I am out of that realm of sue possibilities ya know...........

THX
all!

Hardcase · January 27, 2011, 04:24 PM

Honestly, if there's nothing wrong that you know of, just sell it. If there's something wrong with it, then say so in the ad. That's what I'd do.

Tanker6 · January 27, 2011, 04:46 PM

Just like Momma used to say.....honesty is the best policy.

If there's something wrong with it, say so in the ad. I'd say that it's used and sold "as is." I'd say that 50% of the proceeds are going to Tanker6 for his helpful and brillant advice.........

Ok, ok.....I jess couldn't help maself.....

arcticap · January 28, 2011, 01:42 PM

Quote:

Originally Posted by Joey V.

I understand anyone can sue for anything at anytime but If I don't sell the gun then I am out of that realm of sue possibilities ya know...........

That's why there are gun shops and pawn shops where the name of their game is "buy low and sell high". You don't see them worrying about it!

----> http://blog.beliefnet.com/moviemom/W...rry-715605.jpg

Hardy · February 4, 2011, 05:31 PM

On the 3rd gen signiture series- Colt's black powder instruction manual- gives a great disclaimer. We use it

1 or 2nd page.

Look in your collectible signiture series box and check out that disclaimer. I really don't have one handy at this writing but most of ya'll have one. If not I'll post it tommorrow since all those guns are at shop w/ instructions inside box.

WBH

January 26, 2011, 11:10 AM	#1
Joey V. Member Join Date: October 18, 2010 Posts: 55	Selling Black Powder guns??? If you sell a black powder gun (singe shot pistol) to someone do you bear any liability for that gun??? Looking at it from the position of this is now a used gun that I own if they do something stupid like blow themselves up could they come after me personally? Lastly, how does a gun maker say traditions or whomever protect themselves from liability? THX

January 26, 2011, 11:38 AM	#2
Hardcase Senior Member Join Date: April 14, 2009 Location: Sunny Southern Idaho Posts: 1,909	If you're terribly concerned, you should probably talk to a lawyer. As far as whether or not somebody could sue you if they blew themselves up with the gun, yes, of course they could. Anybody can file a suit against anybody else for just about anything. Now, if the suit has no merit, it won't go anywhere, but there's no 100% absolute protection against somebody coming after you in court. Now, I'm not a lawyer, but I have been involved in a few product liability suits as an engineer, so this is the non-legal advice that I'd give you based on what I've experienced: if you sell a gun, make up a couple of receipts. Include on the receipt that the gun is being sold as-is, with no warranty for its performance or safety. Provide a detailed description of the firearm. If you know that the gun has a defect, put it on the receipt. Keep a signed copy for yourself. Gun makers try to protect themselves from liability with the legal disclaimers that you'll find in the owner's manuals. They also carry liability insurance. And sometimes, they lose. Like I said, if you're really concerned, see a lawyer. __________________ Well we don't rent pigs and I figure it's better to say it right out front because a man that does like to rent pigs is... he's hard to stop - Gus McCrae

January 26, 2011, 01:40 PM	#4
Doc Hoy Senior Member Join Date: October 24, 2008 Location: Naples, Fl Posts: 5,440	And.... By producing a relatively good product which is covered by about a dozen disclaimers printed on paper inside the box. Even this does not ensure no law suites. Like HC says, just about anyone can sue just about anyone for just about anything. It may be a more pertinent question to ask yourself how confident you are about selling a safe item to a normal person when the buyer uses the item as it is intended. If the pistol has a known safety problem, I would fix it first then sell it or I would hang onto it. When the guy comes to pick it up, a few questions will tell you if the guy knows how to use the pistol safely. In my limited experience this comes up quite often with revolvers with a very light trigger pull (among other safety considerations). Some folks might draw up a bill of sale in which they specify the condition of the firearm and that it is being transferred to a person who is familiar with the weapon as it is and who knows how to use the weapon. Then get the buyer to sign it, acknowledging the aspects of the transfer. On the other hand, if I sold a brand new pistol to a long time shooter which subsequently failed in a way that injured the buyer I would still feel bad about it. __________________ Seek truth. Relax. Take a breath.

January 26, 2011, 03:15 PM	#7
arcticap Senior Member Join Date: March 15, 2005 Location: Central Connecticut Posts: 3,166	The gun shop receipts that I have from buying used guns don't have any disclaimer on them. Most of us have also bought used guns from gun shows without any disclaimer and with little more than the passing of money between hands for heaven's sake. Sometimes a used gun will be marked "sold as is" or "parts gun only" on the price tag, but other than that I've never received any oversight from a gun shop about any gun that was purchased beside the paper work that the gun shop owner required. Now some of the large outfits like Cabela's makes the used gun buyer sign a statement that they understand that the gun is used and being sold as is. Many folks have bought BP guns that were loaded with ball and powder, and even those aren't considered by law to be loaded. BP guns don't go off or explode all by themselves, so I don't think that condition really imparts any extra liability. I'm not saying that a person couldn't be sued, but it's usually always "buyer beware" and a used gun is sold as is unless the gun shop or seller wants to offer a verbal or written warranty. Sometimes a gun shop will offer a refund if a used gun isn't in working condition, maybe just to avoid small claims suits or to maintain good customer relations or because they have a 30 day return policy. From my point of view it's like buying a used car in a private sale. The buyer better get any warranty in writing because once you drive it away you are on your own. A person usually needs to prove intent to defraud and even some puffing is allowed. Even if a seller said that they only "think" that a gun is okay to fire, that opinion doesn't mean that it really is okay and that there is some kind of a warranty or liability being agreed to. I'm not talking about companies here as much as about private sales between private individuals. If a used gun blows up after being purchased in a private sale then I would say that generally the seller isn't liable. Sure there may be exceptions but if a person really wants to buy a gun backed by some deep pocket liability then they should buy a new gun from a current manufacturer. Private sellers don't really need to worry about it beside following whatever the legal requirements are like the age of the buyer. Last edited by arcticap; January 26, 2011 at 07:07 PM.

January 26, 2011, 08:28 PM	#12
Hardcase Senior Member Join Date: April 14, 2009 Location: Sunny Southern Idaho Posts: 1,909	Well said, Tanker6. I saw the video, too . __________________ Well we don't rent pigs and I figure it's better to say it right out front because a man that does like to rent pigs is... he's hard to stop - Gus McCrae

January 26, 2011, 11:39 AM	#3
junkman_01 Junior member Join Date: November 9, 2010 Location: Florida Posts: 260	They protect themselves from liability with highly paid corporate lawyers!

January 26, 2011, 02:18 PM	#5
BConklin Senior Member Join Date: December 2, 2010 Posts: 136	I make it a point never to sell any firearms to anyone...I only buy them

January 26, 2011, 05:14 PM	#8
ClemBert Senior Member Join Date: March 2, 2009 Location: Orlando Posts: 936	I have a question to the OP. If you sell a used automobile to someone and they get in an accident....Can they sue you? Anyone can sue anyone for anything. That's Amerika!

January 26, 2011, 06:09 PM	#10
Tanker6 Senior Member Join Date: October 21, 2010 Location: Texas Posts: 193	I agree with Zhillauditor's posts fully, but I'll elaborate on a couple of points. First, I tell my clients all the time that there is no such thing as "lawsuit proof." All that is required to be sued is for someone to have a piece of paper, a means of priniting on it, and the filing fee. That said, the particular portions of Zhillauditor's post about being a "merchant" under the Uniform Commercial Code (that the UCC thing he mentioned ) is all true. If you fall under the definition of a merchant, then you will indeed be providing an IMPLIED (unless specifically disclaimed) warranty that the product is suitable for its intended purpose. The suggestions earlier about of bill of sale which disclaims such warranties will help in your defense if you are sued. The other thing I'll point out is good old negligence. Those who practice on the Plaintiff's side of the bar (and yes, I dabble over there from time to time) love negligence. Reason? It's fairly easy to get by the legal hurdles to get the issue to the jury. Then, the fate is decided by "12 people who aren't smart enough to get out of jury duty." Negligence requires "some proof" (in order to get the jury) of (1) a duty owed, (2) a breach of that duty (3) which is cause of harm and/or damages. Now, under the scenario that you sold a BP pistol to someone and it blew up in their hand, there are several defenses which are readily available. First, the seller didn't owe a duty at all. Second, if he did owe a duty, he didn't breach it. (These are the areas where the bill of sale will likely help as well). It wasn't something that the seller did or failed to do that caused the harm (i.e. the buyer overloaded the pistol). Not trying to teach everyone Law 101 here, but I thought it worth the electrons to point out that (1) everyone can be sued, (2) getting sued isn't fun (or cheap) and (3) taking some precautions should you be sued certaintly won't hurt your defense should that event arise. Did anybody else see the video of the woman in the mall, walking along texting, and falling into the fountain? She's not suing over the fall, she's suing because some security camera guy let the video out and she's embarrassed. ....but I digress....

January 26, 2011, 06:44 PM	#11
Kadmos Member Join Date: April 27, 2010 Posts: 93	Or...only take cash, make no receipts, and don't mention your name. It's tough to sue people when you don't know who they are

January 27, 2011, 08:55 AM	#15
Doc Hoy Senior Member Join Date: October 24, 2008 Location: Naples, Fl Posts: 5,440	To MCB Yes....and sometimes I feel like shooting myself. __________________ Seek truth. Relax. Take a breath.

January 27, 2011, 10:44 AM	#16
junkman_01 Junior member Join Date: November 9, 2010 Location: Florida Posts: 260	Doc, Don't even kid around with words like that!

January 27, 2011, 01:04 PM	#17
arcticap Senior Member Join Date: March 15, 2005 Location: Central Connecticut Posts: 3,166	Yet virtually every gun manufacturer disclaims the use of non-factory produced ammunition as voiding their warranty and that doesn't seem to stop anyone from buying their guns or from using reloaded ammo for that matter. And even in that case the gun manufacturer can still be still be sued for negligence. So much for disclaimers. Do folks not buy used guns because of the possibility that they may have been fired with reloaded ammo at some point? Last edited by arcticap; January 27, 2011 at 01:11 PM.

January 27, 2011, 04:11 PM	#18
Joey V. Member Join Date: October 18, 2010 Posts: 55	Now I don't know what to do.... I have a traditions single shot pistol pistol I bought that I am tired of already and want to buy a new toy. Selling this on gunbroker or whatever would be easy because I am not looking for much at all but man the possible liability makes it not worth it I think.... I understand anyone can sue for anything at anytime but If I don't sell the gun then I am out of that realm of sue possibilities ya know........... THX all!

January 27, 2011, 04:24 PM	#19
Hardcase Senior Member Join Date: April 14, 2009 Location: Sunny Southern Idaho Posts: 1,909	Honestly, if there's nothing wrong that you know of, just sell it. If there's something wrong with it, then say so in the ad. That's what I'd do. __________________ Well we don't rent pigs and I figure it's better to say it right out front because a man that does like to rent pigs is... he's hard to stop - Gus McCrae

January 27, 2011, 04:46 PM	#20
Tanker6 Senior Member Join Date: October 21, 2010 Location: Texas Posts: 193	Just like Momma used to say.....honesty is the best policy. If there's something wrong with it, say so in the ad. I'd say that it's used and sold "as is." I'd say that 50% of the proceeds are going to Tanker6 for his helpful and brillant advice......... Ok, ok.....I jess couldn't help maself.....

February 4, 2011, 05:31 PM	#22
Hardy Senior Member Join Date: August 6, 2009 Location: South Carolina Posts: 709	On the 3rd gen signiture series- Colt's black powder instruction manual- gives a great disclaimer. We use it 1 or 2nd page. Look in your collectible signiture series box and check out that disclaimer. I really don't have one handy at this writing but most of ya'll have one. If not I'll post it tommorrow since all those guns are at shop w/ instructions inside box. WBH

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