EBay Got This Absolutely Right (for a change)

Outstanding summary.....End of discussion. Everyone please review mail order laws. The seller is always and, as stated above, has 'always' been legally responsible for for a mailed item until it is through the logistics network.... no matter what..... even with a signed document from the buyer absolving the seller for liability in advance of the shipment, in a court of law, the seller would probably lose. Mail order laws are very specific in this regard, and if you item goes through the mail, it falls under thier governance.

BTW,, there are no seller fee's on Craigslist... try selling there and let us know.

 

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I've stayed out of this discussion hoping to see at least one person (Hotonai, you would've been the one I'd expect to do so) give proper citation in law, either codified or common, relevant to the UCC to support your claims.

If you are so sure of the specifics and application of the UCC, and how it applies to sales made via a venue like eBay, then please make citations.

I would also suggest that consideration be placed on the numerous instances of the phrase "unless otherwise agreed" and similar phrases when making citations, as exemptions are very important considerations. It would also be noteworthy to consider the meanings of "risk of loss", "tender of delivery", and "title", "insurable interest", and "security interest".

 

There is a good reason why the buyer should be removed from the shipping insurance buying decision: the seller is the one who packs the item for shipment.

Today I received 10 rolls of dollar coins from an eBay seller. The seller had gotten a Priority Mail box from the post office, put all the rolls in one end, wadded up some Priority Mail envelopes to use as padding, slapped a small amount of Priority Mail tape on the ends and sent it. The box broke, several of the rolls broke open, and someone from the Post Office scooped the coins up and dumped them back loose in the box.

Having worked for parcel carriers and in shipping departments, I can tell you that properly packed and taped boxes that are strength rated for their contents almost never break in shipping.

I also think there's no call for bashing eBay on this one. Postage fees do not factor into eBay's final value fee calculation. The "Free Shipping" gimmick is now more expensive to the seller, but it's still optional.

 

Offering free shipping will set the seller back, about another $8.00 or so with appropriate insurance provided.

 

Let's see some citations!

Any sales post on eBay, in whatever format (auction, BIN, etc), is a sales contract between the seller and buyer. So, yes, the buyer does, in fact, have the right to decline paying for insurance if the specific contract so injects the decision of the buyer to pay for insurance or not into the wording.

Citation(s), please! When citing, please remember that this is a sales contract with specific material and fundamental provisions for performance.

Citation(s)! Your best bet on this one would be common (case) law for citations, as you will definitely find contradicting provisions in the UCC. Remember, this is a sales contract with specific material and fundamental provisions for performance. And not every posting on eBay is equal in this respect. Each posting is a sales contract with ONLY the buyer and seller as parties to the contract (in other words, violation of your TOS contract with eBay has no bearing on the sales contract, as eBay is not a legal party).

Cite some common law opinions, please! Remember that your cited cases should be in regards to a contract similar to the one referred to in the grandparent post where the contract specifically offers the option of buyer reservation and seller absolution.

Let's not compare SGS to PCGS here. What you are referring to is not the same as the sales contract with the specific material and fundamental provisions alluded to in the grandparent post.

I would love to see citations on what the eBay lawyers told the execs! I think we all know that this is your own conjecture, but let's see citations on that last sentence, because that is the core of what we are discussing here. You put it that it is an absolute ("no matter what"), so let's see some codified citations on this one as well as common.

You're absolutely right! The seller is not responsible for buyer reservation to begin with, so the seller never had a responsibility to "no longer have" to begin with. But, at the core of this issue is that your statement was meant to infer that, regardless of provisions of the sales contract, the seller has a specific responsibility until the buyer has received the item in their own physical hand. This is another issue at the core of the discussion. Are all contracts created equal? Both parties are bound to every enforceable provision of the contract. Think about that.

Think very hard about that statement. What you are in effect claiming is that the provisions regarding tendering in a legal sales contract, as well as provisions of absolution, are unenforceable. Do you really believe this? I would like to see some common law citations on this one.

 

<sigh>
The store clerk IS the carrier. You have employed this person to collect the money and deliver the item to me. This person drops it on the floor before I receive it.

Now, who is left holding the bag? You, the store clerk or me?

I think it's pretty obvious that it is NOT me. It's either the store clerk or you - I had nothing to do with the breaking of the object. So the BUYER is not left holding the bag.

 

PocketChange: You're wires are crossed given the scenario being discussed in this thread and the overly simplified theoretical statement you wish to be discussing that proposes a scenario in which the Seller and Carrier are the same entity. Our discourse here has clearly been about: a seller (1) using a carrier (2) to deliver to a parcel to a buyer (3) doing business via eBay (4) and the policies therein agreed upon given the terms of contract written by 1 and entered by 2. So, PocketChange, when you have something to offer that relates I will consider your posts. Until then, meh!

 

For background to this reply, refer to the Uniform Commercial Code, (Article 2) § 2-210;§ 2-326;§ 2-601

The store clerk would not necessarily be considered a carrier, so much as a delegate of the seller under Part 2 of the Article, and as such, the seller is not relieved of his obligation to the buyer. Furthermore, a counter sale would be considered a sale on approval under Part 3 of the Article, if I am not mistaken, and thus the risk of loss would not pass to the buyer until acceptance, as there are no other special provisions or performances contracted in the sale providing otherwise.

Therefore, in accordance with Part 6 of the Article, you as the buyer have the right to also refuse delivery for breach, as the good is now materially nonconforming to the sale.

However, the issue under discussion here is completely different. Here, we are talking about contracts with specific provisions for performance. Each party has their specific duties as outlined in the contract for sale. And, depending on the wording in the contract, as well as the seller's conduct in the tendering of goods to the buyer, risk of loss can swing either way. It all depends on the contract in question.

I would still like to see some citations from both or either side of the discussion before continuing further. One of our more insightful numismatists here has a tagline: "knowledge ..... share it"

Let's do that and share some actual and truthful information. Opinions are great, because everyone has one. But, those opinions hold more sway when you have some actual information to back it up, especially when the claim is that the opinion is 100% absolutely correct and truth.

 

ditto...
Whatever the law says I know this. Any contract or business transation that involves this dispersment of goods into the mail or parcel networks falls under mail order laws and mail fraud laws. I have intimate working knowledge of 1B per week businesses that source this channel and space to disperse thier goods..... obvious fraud takes place and is investigated and documented, and almost never pursued. Why, because the buyers potential counterclaim of mail fraud is:
1 - A federal crime
2 - A very expensive federal crime punishable by each instance of event.
3 - insainly expensive to defend

.. so, in practice, once a case is brought against the seller, regardless of guilt.
THE SELLER LOSES, even if they win.

AND... any claims by a seller that the buyer was offered the opportunity to insure his purchase and that ...."in my ebay listing I made it clear that not buying insurance absolved me from any lost parcel"... would, after everyone in the courtroom had a nice laugh.... net you a lost case, and most likely a very, very stiff federal fine and record.

 

and after all this legal beagle bantering, It is the sellers obligation to protect his (gender neutral) property, until it is no longer his property. That is assumed when the buyer takes possession of the purchased property. Should any loss or damage occur during the completion of sale while in transit, the seller better had done the responsible thing . Cheap is expensive and expensive is cheap! Hard lesson for some to learn, I guess.

 

Let us consider this auction at eBay.

For purposes of our discussion, we will note the following:

Seller duty: Pay for item shipping.
Buyer duty: Pay for item insurance while in transit.
*no requirement to tender shipment at a specified location.

Buyer duty: Insure item against loss or damage in transit.
Seller duty: Ship item in accordance to time limits specified in contract. If buyer does not properly insure item, Seller may choose to delay shipment.

Buyer duty: Remit payment via PayPal payment service within 24 hours of auction close.
*Based on the contractual 3 days to ship, this is an implicit reference to payment prior to tendering to a carrier.

Buyer duty: Agrees to absolve Seller in the event of lost, stolen, or damaged items.
*This affirmatively transfers title to the Buyer upon payment although Buyer has not yet approved the goods.

Now, let's assume that the auction ends and "all goes as agreed" up to the tendering of the good to the delivery service. Thus, the buyer would have paid via PayPal, including the amount for the insurance. The seller ships the package through the post office with the proper paid for insurance, and the package is lost. No problem as the package was insured. All went well and according to the contract.

But, let's assume that the buyer refused to pay the insurance. A discussion ensues between the two via email. An agreement is reached that the buyer will not pay for insurance, and the seller ships the package anyway. However, the clause stating that the title passes to the buyer upon payment is not changed, and thus stays in affect. Then the package gets lost by the post office.

Who's responsibility is it now?

Well, one consideration is title.

Thus, if matter of title becomes an issue (ie, seller absolution), then subject to the provisions in section 401, the manner and conditions explicit in the auction transfer title in such manner. In our case here, that would be upon payment by buyer.

Now, if you want to discount the fact of title and make it non-issue, you must still also consider risk of loss. The contract is not a "destination" contract, it is a "shipment" contract. That is to say, there is not definitive clause in the contract stating that the coin would be delivered at a particular destination. There is an absence of a specified place for delivery. And a "ship to" order outside the written contract in no way makes this a "destination" contract.

Now, consider:

As you can see, regardless of title, risk of loss passes to the buyer unless the contract is a "destination" contract. And even if provisions are contained in the contract creating a "destination" contract rather than a "shipment" contract, the risk of loss is still subject to the agreement, and the contract explicitly placed risk of loss on the buyer.

If you still want to argue the fact, try reading the California Appellate Court's opinion (in PDF format) on the subject matter.

I am still waiting to see ANY citations from contrary opinions on this matter.

 

I am confused. Are you stating that it does not matter what the law says because you know better? Or are you saying that you know the law and what it says, and thus you know what you're talking about? In the latter case, please read the citations I placed in the previous post, since nobody seemed to be able to make citation to the contrary. In the former case, it is useless to discuss the matter since you will not regard neither codified law nor case law anyway.

 

There is no "legal beagle bantering" going on here. It seems I am the only one to put any form of citation to my opinion in this whole thread thus far. Opinions that are neither supported by letter and spirit of law nor by common law opinion are exactly and only that...opinions. An opinion in no way settles the issue. Most of what I posted has been straight forward. All that I have posted has been supported by citation.

The only response I continue to see is opposing view with no support or evidence. If you have no support for your conclusions, and are presented with citations from both codified law and common law, how can it still be argued otherwise? If anybody has any citations to the opposite, given the circumstances of the contracts entered into on eBay, I would still very much like to see them.

What eBay places in their TOS and User Agreements is not law. Do not confuse your eBay/PayPal agreements, and their actions toward you as either a buyer or seller, to be law, or even based on law. eBay is a venue, not a party to the legal contract you enter into between buyer/seller.

 

who gains from providing insurance? who looses if there is no insurance? THE SELLER. If anything, in the event of a lost or damaged article, the buyer is absolved of his purchase agreement, unless the seller provides a suitable replacement item within a reasonable time frame, in which the buyer still has a legal right to refuse a replacement item, as it is not the original item purchased by contractual agreement, and that you can take to the bank.

 

No, I'm not a lawyer, nor do I know the law verbatim, but I have had one or two discussion with the legal department regarding what to do about potential buyer fraud (well docuement). What I've stated above comes from listening to them, and they are a large legal 'department'.
Your cliam of absolution realized within the text of an ebay auction verbage is not gonna cut it... there are simply too many problems with that.... and I promise you, if you do ever have to go to "federal" court for a $50 coin and defend yourself vs. a mail fraud complaint, you'll spend a bit more than the cost to replace a roll of $50 coins.

Also,, watch out for the "Delay" snippit in your auction... you can only "hold" a customers order so long,,,, then it becomes mail fraud ( I "think" 30 days ).... To "delay" longer, you'd have to call the buyer, cancel the order, return the $, and then actually re-sell the item, resend the $, etc.......

... the business case related to defending yourself is 1000-1 loser for you (depending on how much business you do), even if you win. And if you lose, you can be "SHUT DOWN",, CLOSED....(on top of the legal expense, federal fines, etc.).. so bake in all the profit you do annually on the down side consideration before you decide to get to legal with a buyer.

 

I saw that very same seller auction item. Now I am not a legal professional, but I question the legality of a seller imposing an EBAY forum "sub-contract" agreement upon the buyer, without publishing in advance, a licensed insurance fee agreement and "all fees" insurance chart which is also agreed upon by EBAY.

Here is what EBAY is proposing

















:As part of its announcement to sellers on Monday, eBay said it would remove optional buyer charges for shipping insurance. "The insurance option creates the perception that buyers need to purchase shipping insurance as a protection on eBay, an experience they're not accustomed to on other ecommerce sites. In fact, sellers have always been responsible for their items until they arrive safely in their customers' hands. That's why shipping insurance will no longer be included in the purchase flow as either an option or requirement for buyers. Of course you can choose to purchase insurance on shipments, but not ask buyers to buy insurance separately. In some categories like Antiques, Collectibles, and Jewelry, shipping insurance for sellers is essential. When appropriate, you can include the cost of insurance in your item or shipping price."

In reacting to the policy change, some sellers have said that buyers would have no incentive to cooperate with the seller in filing an insurance claim.


INSURANCE FOR LOSS OR DAMAGE, IS AND ALWAYS WILL BE THE RESPONSIBILITY OF A "SELLER".

ANYTHING A SELLER MAY ATTEMPT TO IMPOSE UPON A BUYER IS ILLEGAL, IN THIS REGARD.
{THIS IS A BIG PROBLEM TODAY, WHERE THE LEGALLY RESPONSIBLE PARTIES ATTEMPT TO PUT "VICTIMS" OF CRIMES OR LOSSES CAUSED BY THE IRRESPONSIBILITY OF OTHERS IN THE HOT SEAT.}