EBay Got This Absolutely Right (for a change)

However, if the seller could show that the "optional" clause was placed in there by the venue (not a party to the contract), then that can open up a whole new can of worms. The spirit of the contract is explicit in the body of the description as you had pointed out:

However, the judge would also consider the spirit of the contract, in which case the judge may opine that the buyer had a clear duty to obtain insurance. Regardless, with the clear explicit transfer of title on payment, the judge may also opine that, as the good was already titled, or in control and interest, to the buyer, that insuring its transit was completely the buyer's risk.

The opinion (that is a legal ruling) I linked to is not very long. I would suggest you take some time to read it, Doug. This is the very same issue that the appellate considered. When laws like this are codified, they are also annotated and commented to show the intent and purpose of each section and how it relates since there is no common law until precedence is set.

"Shipping" contracts are what are considered the normal, and "destination" contracts are considered the variant. The word "at" is used in the codified law instead of the word "to" for this particular reason. A "destination" contract is created when the contract explicitly demands tendering of goods "at" a particular location. The laws also allow that the buyer may elect to demand that the seller personally tender the goods and reject tendering through delegation. A "shipment" contract contains no such clause, and the method of tendering is completely the decision of the seller. Supplying the seller with a location to tender the goods does not automatically transform the sales contract into a "destination" contract, as the buyer has a duty under law to provide for a proper place for delivery.

Again, make sure to read the opine posted. It should answer a lot of questions for you about this matter.

Well, again, read the opine. The two facts to note about any auction that is not explicit to the contrary are: 1) The contract created on eBay is a "shipment" type sales contract; and, 2) the contract created on eBay is not a sale on approval even if a return option is given. Given those two facts, go back to the UCC and consider risk on loss:

Being a "shipment" contract, the risk passes on to the buyer, regardless of passing of title. And, especially if risk is explicitly stated in the contract, the explicit provision takes precedence anyway.

And, I have said in another post, eBay is not the law. They do not write laws, they write contracts. Any claim they make that it has "always been the responsibility of the seller" to insure an item is not founded in either codified nor common (case) law. However, there are some specifications that the seller MUST adhere to, regardless of explicit contract provisions and risk of loss sections of the UCC article cited.

Skipping any of those three requirements for shipment is grounds for breach, which will then open up a whole new can of worms.

It will be interesting to see what transpires at eBay as they continue to try to exert more and more influence on the sales contracts. My guess is that it is only going to be a matter of time before complaints are filed with attorney generals' offices, and little time after that before they are appended a defendant in a court case. Or, they may ease up and actually let the legal parties to contracts deal with the situations themselves. Buyers have plenty of avenues for recourse if they feel they have been wronged.

 

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I am confused by this statement? What do you mean by "eBay forum sub-contract"? Are you claiming that eBay is a party to the legal sales contracts that a buyer and seller enter into, and that eBay is not "just a venue"? If they are not "just a venue" then I am sure there will be a lot of legal problems for them in the near future.

Is this your own quote, or something eBay has placed in writing? If it comes from eBay, I would very much like a link to it, please.

I am wondering if anyone has yet even read the court opinion on the matter that I linked to. I have seen opinions that a seller not securing insurance, or demanding the buyer secure it, is illegal or mail fraud. Yet, those opinions are not supported by citation. On the other hand, a court precedence on the issue has been posted, but it seems to have been disregarded and ignored.

If you really want to know what a court has to say about all of this, read the opinion posted previously (for those that do not understand the terminology, it is the ruling made after the trial, including the reasoning behind the ruling).

 

I fully understand your previous UCC quotes and references. I disagree. Major Auction houses add the cost of insurance to the base of S&H. I have no problem with that. I even suggested here in this discussion, that is a way for a seller to handle this. Seller assuming "responsibility" in the event for loss or damage with their carrier. Once again, what is trying to be justified here, is having the buyer assume that liability. If a Heritage item, I purchased, does not arrive (and can be documented through their Carrier) or in less than "as purchased" condition, Buyer only need to notify Heritage. They are responsible for making good on buyer recovery or refund. IS this wrong ? I have never had an issue as such with Heritage or my many other notable Auction Houses with which I've conducted business with for a very, very long time. Shipper/seller has always been responsible for providing Base insurance to cover potential loss or damage. It is also true that buyers, may have an option to purchase "additional insurance" through the seller, and does not imply a buyer/3rd party carrier agreement , but rather the transit carrier with shipper/seller.
The Buyer, simply foots the bill for it, as in most transactions between seller and buyer. I'm just an old coot, who is frustrated with how the laws in this country are ruled in favor of misplacing responsibility, squarely where it DOES NOT justly belong. Thanks for all the Legal Citation's.

 

Let's say that instead of adding the insurance fee as a cost of business the seller requires, with such a declaration as in the link, the buyer to pay a separate cost for the insurance who can place the claim if a product is lost in transit? Only one person and that is the SELLER or the person in this case that actually purchases the ins. when shipped.

 

Please reference the USPS Domestic Mail Manual section on indemnity claims and the UCC section on Shipment by Seller.

Codified and common (case) law already demonstrate that the risk of loss falls to the buyer in a "shipment" contract unless explicitly provisioned otherwise. However, if insurance is elected and paid for by the buyer to the seller to obtain, then note paragraph (b) of the Shipment by Seller section.

If the good is lost or not received, and insurance was paid for by the buyer, and the seller bought USPS insurance for the item as paid for by the buyer, the UCC requires the seller to tender the proper documentation to the buyer for the buyer to make the insurance claim ("otherwise required by the agreement or by usage of trade"). The USPS DMM 609 1.3(b) clearly states that the addressee may file the claim on lost items with the proper documentation.

Now, just because it is simpler for the seller to refund the money and file the claim themselves in no way denotes that this is the requirement of law. Nor does it imply that to do otherwise is in any way illegal. It is just the more simple and customer oriented way of doing business.

And, I believe, this is the whole point of this discussion. The point is not to determine any ethical nor sensible right or wrong, but the technical and legal right and wrong of the situations presented. It is just simply wrong to make claim that a specific practice authorized under contract and in accordance with law is in any way "illegal".

 

Again, please read::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."

Are you suggesting that EBAY will be in violation of "Law" ?

You can cite all the "new reversals of old law" in the end, it will be a loss to the Seller and Commerce. E-commerce is another tangled web, but right, is right.

I backup what I say, with doing. I'm not shipping this item without insurance, and I absorb that cost, not my buyer.

http://cgi.ebay.com/ws/eBayISAPI.dll?ViewItem&item=270435945715&ssPageName=STRK:MESELX:IT

At best, it will cost me $2.70 cents, I feel good, I'm protected, and I am treating my customer like I appreciate their business, and hope they return. Thats my business ethics.

 

If the insurance is paid for by the buyer, but simply included in the S&H, and it is agreed that the seller would file any claim and reimburse the buyer, the seller has become a delegate to the buyer's duty. The buyer would still be holding the risk of loss, regardless. And, yes, it has already been demonstrated in court that the buyer does, in fact, have the liability in a shipment contract as the normal.

What Heritage does is in accordance with their own business practices, but is not necessarily based on requirements of law. And, you have presented two separate issues here. First, you present a lost item. In that case, the law demonstrates that the buy has risk of loss. Heritage plays the good guy by assuming the role of delegate in processing the insurance. In the second, you have the instance of possible non-conformance.

Now, with the non-conformance, if the items was damaged in transit and can be shown to be as such, again the buyer holds the risk of loss. However, if the item is not in the condition agreed to through the contract, the the agreement is breached, and the seller is legally allotted time to make things right.

Yes and no. It depends on what kind of wrong you are inferring. Is it legally wrong? Morally wrong? Ethically wrong? It all depends on the business practices of the merchant. Is it legally wrong for the seller to demand the buyer insure his goods and that the buyer pay for the insurance? No, unless he did not utilize the moneys to properly insure the goods for their full market/sales value. Is the merchant ethically wrong? Depends on if he complied with the buyer's request in obtaining the insurance (ie. no third party insurance, USPS insurance only). Is it morally wrong to do so? That all depends on the moral views of each individual who considers the scenario.

And this is the misconception that I am trying to bring to light. It has always been a perceived "responsibility", not necessarily a legal one, with regards to the contract forms we have discussed.

I hope the citations help you to understand the situation. A leisure reading of the court opinion will shed even more light, as the Cornell Law version of the UCC does not include the official comments.

 

NP.. nope,, you'll lose. Even with your 'explicit' contract... Now when I say lose, I mean, and have intended to convey.. the business case..... and you just won't lose, you'll lose big. Unless the coin is ~10k or up. Not only that, again, as I've said, if your found guilty by the ruling official, who may be having a bad hair day,,, they can shut your right to do further business through the parcel network on the spot and indefinitely..... so you'd have to kiss yours business a good day and take up photography or other hobby/business. It's a razor's edge,, especially basing your case on the text within an ebay auction in which the venue itself has already taken a bias against your case....... as an old wise man once told me before jumping,,, 'good luck with that, go for it',,,,

 

Thats pretty much what I implied in my recent post. NP, are you suggesting that EBAY will be in Violation Of Law?

 

That remains to be seen in court if and when any individual or class decides to file complaint against them for any situation that may arise regarding their claims. eBay's policies and user agreements in no way append or change any legal sales contract entered into by a buyer and seller. To do so makes them party to the contract. I would suspect that eBay would reply with a resounding "no" to any question to this affect.

There have been no "reversals" of old law, simply a precedence and affirmation in common to codified law. A reversal of a lower court's decision, yes. But not a reversal of law. The law has not changed, and neither has implementation of said law. And again, ethical and moral right is not necessarily legal right.

And that is your prerogative as a merchant. However, your choice to conduct business in such a manner in no way makes others' business practices "illegal" because you have a differing ethical view of the situation.

If eBay does do away with the option for sellers to have the buyer obtain insurance through the carrier, but offers the insurance option through themselves, I suspect that an even bigger can of worms will eventually open up. And as I stated previously, eBay's policies and user agreements are not part of the legal contract, and their policies and agreements do not supersede your sales contract.

If the seller explicitly transfers title upon payment, and provisions the buyer's payment for insurance (whether it is included in the shipping costs or not), that is the legal sales contract. Sure, eBay could disallow the seller from continuing to use their venue, but their policies do not change your legal contract.

You have been presented with factual and verifiable codified law and court opinion regarding this issue. Do you really believe that this statement by eBay is correct? I have presented you with fact. I do not expect it to change your perceptions or practices at all, as it should not since that is not the reason for bringing this to light. That is not the point here. The point is that certain business practices are perfectly legal and have been validated through the legal system already. These practices are not necessarily "illegal" because you ethically do not agree with them.

 

"In fact, sellers have always been responsible for their items until they arrive safely in their customers' hands."


So, now I assume your saying EBAY is promoting misleading, information as fact. I don't care to belabor this discussion, only to say, business was never practiced this way, in the day when USA Commerce and Business Trade was at it's peak. Perhaps, because of all this legal manipulation, is exactly why our commerce is at it's worse it's ever been. Today, it's "stick it" to the customer, if they don't come back, there is always someone new to come along. BAD THINKING & BAD BUSINESS PRACTICE. For me, I only have to be treated like that once, and I'll take my business elsewhere or do without.. Again thanks for the post's. Lets see what happens.

 

Just ebay buyer fyi....

Here's some stuff u can use as needed.
How to file mail fraud complaint:
http://reviews.ebay.com/HOW-TO-FILE-FOR-MAIL-FRAUD_W0QQugidZ10000000003448709
https://postalinspectors.uspis.gov/forms/MailFraudComplaint.aspx

Some info regarding mail fraud penalties:
http://www.casewatch.org/usps/postallaws.shtml

Filing a case should be free, the seller defense will probably not be free, so unless they enjoy, as I've been told, "standing naked in the shower under cold water throwing $100 dollar bills down the drain",,,,,, they will likely settle with you quickly.
Very quickly,,, even if they do have 'explicit absolution verbage in thier ebay text'.....

 

Of the 54 things I sold on EB*Y in June and July, 6 people paid for the optional insurance. Does that mean the other 48 are twisting in the wind if something happens to the delivery? No. I will replace the item if I can at my cost or refund the money. This is not because of a law or an EB*Y rule. It is because I want my customers to have a good experience dealing with me. The USPS or whomever is my agent and an extension of me until the item is in the buyer's hands. Take care of your customers and maybe they'll come back. Throw them to EB*Y or the USPS and you'll never hear from them again.

 

whew!

 

Since you deem this is drawing to a close...

It's wonderful that someone understands the law and can make use of it though we didn't hear many recitations of it from the thread initiator to help sort out the discourse. Someone else came along and took on this thread after a lot of inaccuracies were already afloat. I appreciate NP for challenging the thread.

Also, I don't believe everything I read and eBay is certainly to be questioned in their policy. That's what I did when I read the new eBay policy about to go into effect, specifically questioning their ambiguous qualifier, "In fact...". I did not, however, question the law or any codes within nor stand in defiance of the law and make any claims that I was above it. Further, I do not claim to act outside of the law nor in violation of my stated responsibilities to my customers.

I never disclosed the terms I write into my eBay listings for this thread to consider, but save to say I am a member of your 'one-in-a-million' club who does cover themselves with disclaimers added to the contract. I include these terms as I have learned from experience how imbalanced eBay policy is between Seller and Buyer and how misunderstandings can fly off the handle. I have not disclosed my terms here for my own protection amongst other Sellers so that I may maintain my competitive edge in sales, which is why I do not suffer like you wished to believe I do and to persuade others to think of me and my practice.

Of course. eBay is trying to finally cover themselves, it was obvious they were an open target all along and their policy left them exposed, which is why Sellers who write in their own disclaimers are not trying to absolve themselves of responsibility alone, they need to protect themselves against losses and manipulation. Not all Seller added terms are out to screw over Buyers by writing complex rules designed to trick Buyers. But adding terms to the contract that a buyer can waive their rights to by choice does absolve a Seller of the responsibilities during shipping in question.

This is what I said from the very beginning and what I have already been doing all along in my eBay auctions, yet several in this thread doubted the legality of doing so and questioned my understanding of eBay, law and good character. Also, try to understand that it is NOT the SELLERS insurance, as insurance is provided by the CARRIER. The Seller is not an insurance entity and cover losses. The Seller is an agent for the Buyer who offers by agreement to place the appropriate insurance on the parcel purchased by the Buyer. I see you keep indicating that the insurance is backed by the Seller, which it is not.

Um, yeah. That's what I meant by the need to disclaim or not disclaim Seller responsibility in clearly written terms added to your listing all along. I do not respect nor deal with Sellers who manipulate Buyers in their added TOS by making them deceptive or designing pitfalls in an unscrupulous manner. I am out to write terms that protect both buyer and seller and these terms hold the carrier responsible for loss, damage and/or delay. Therefore Seller and Buyer are protected and experience no loss. Neither party comes out on top, they break even minus the minor cost of insurance. For it's not just law which you should understand but the fundamental principles of managing risk and insurance.

I understand this because I am both an Buyer and a Seller with significant years experience on eBay and working within the constraints and costs over the course of eBay's evolution. I never balk about the cost of doing business nor utilizing eBay's service. However, these new policies do proceed with some sense of imbalanced between parties and I suspect that going forward there will be masses of problems when those Sellers who try to do business on the cheap start to fore go applying insurance and listing fees and if they do not learn to create terms to absolve their responsibility and refund issues then PayPal interventions, lost merchandise, exploited Sellers by devious Buyers, and how the new high cost of business will work against individual Sellers will transform eBay negatively. Sellers may/will go elsewhere and they will pay a fee at other venues but it will be eBay who lost their roots. Removing the optional shipping insurance is one less pillar of Buyer responsibility and choice that this venue based on trust and a good honest deals was built on. The next chapter is about to begin, let's watch and see the next phase of complaints and rules/rulings unfold.

 

More often than not "Brilliance", and "The Brightest and the Best" , simply don't realize, that brightness they wear so proudly, eclipse's Common Sense.

 

Thomas Paine, would have hit em over the head with his book. Uggh!