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<p>[QUOTE=&quot;NPCoin, post: 651708, member: 5629&quot;]Let us consider <a href="http://cgi.ebay.com/1928-P-PEACE-SILVER-DOLLAR-SUPER-AAA-MS_W0QQitemZ320404061293QQcmdZViewItemQQptZCoins_US_Individual?hash=item4a9991fc6d&amp;_trksid=p3286.c0.m14" target="_blank" class="externalLink ProxyLink" data-proxy-href="http://cgi.ebay.com/1928-P-PEACE-SILVER-DOLLAR-SUPER-AAA-MS_W0QQitemZ320404061293QQcmdZViewItemQQptZCoins_US_Individual?hash=item4a9991fc6d&amp;_trksid=p3286.c0.m14" rel="nofollow">this auction</a> at eBay.</p><p><br /></p><p>For purposes of our discussion, we will note the following:</p><p><br /></p><p><br /></p><p>Seller duty:&nbsp; Pay for item shipping.</p><p>Buyer duty:&nbsp; Pay for item insurance while in transit.</p><p>*no requirement to tender shipment at a specified location.</p><p><br /></p><p><br /></p><p>Buyer duty: Insure item against loss or damage in transit.</p><p>Seller duty:&nbsp; Ship item in accordance to time limits specified in contract.&nbsp; If buyer does not properly insure item, Seller may choose to delay shipment.</p><p><br /></p><p><br /></p><p>Buyer duty:&nbsp; Remit payment via PayPal payment service within 24 hours of auction close.</p><p>*Based on the contractual 3 days to ship, this is an implicit reference to payment prior to tendering to a carrier.</p><p><br /></p><p><br /></p><p>Buyer duty:&nbsp; Agrees to absolve Seller in the event of lost, stolen, or damaged items.</p><p>*This affirmatively transfers title to the Buyer upon payment although Buyer has not yet approved the goods.</p><p><br /></p><p>Now, let&#039;s assume that the auction ends and &quot;all goes as agreed&quot; up to the tendering of the good to the delivery service.&nbsp; Thus, the buyer would have paid via PayPal, including the amount for the insurance.&nbsp; The seller ships the package through the post office with the proper paid for insurance, and the package is lost.&nbsp; No problem as the package was insured.&nbsp; All went well and according to the contract.</p><p><br /></p><p>But, let&#039;s assume that the buyer refused to pay the insurance.&nbsp; A discussion ensues between the two via email.&nbsp; An agreement is reached that the buyer will not pay for insurance, and the seller ships the package anyway.&nbsp; However, the clause stating that the title passes to the buyer upon payment is <b>not</b> changed, and thus stays in affect.&nbsp; Then the package gets lost by the post office.</p><p><br /></p><p>Who&#039;s responsibility is it now?</p><p><br /></p><p>Well, one consideration is title.</p><p><br /></p><p>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.&nbsp; In our case here, that would be upon payment by buyer.</p><p><br /></p><p>Now, if you want to discount the fact of title and make it non-issue, you must still also consider risk of loss.&nbsp; The contract is not a &quot;destination&quot; contract, it is a &quot;shipment&quot; contract.&nbsp; That is to say, there is not definitive clause in the contract stating that the coin would be delivered at a particular destination.&nbsp; There is an absence of a specified place for delivery.&nbsp; And a &quot;ship to&quot; order outside the written contract in no way makes this a &quot;destination&quot; contract.</p><p><br /></p><p>Now, consider:</p><p><br /></p><p><br /></p><p><br /></p><p>As you can see, regardless of title, risk of loss passes to the buyer unless the contract is a &quot;destination&quot; contract.&nbsp; And even if provisions are contained in the contract creating a &quot;destination&quot; contract rather than a &quot;shipment&quot; contract, the risk of loss is still subject to the agreement, and the contract explicitly placed risk of loss on the buyer.</p><p><br /></p><p>If you still want to argue the fact, try reading the California Appellate Court&#039;s <a href="http://caselaw.findlaw.com/data2/californiastatecases/A105461.PDF" target="_blank" class="externalLink ProxyLink" data-proxy-href="http://caselaw.findlaw.com/data2/californiastatecases/A105461.PDF" rel="nofollow">opinion</a> (in PDF format) on the subject matter.</p><p><br /></p><p>I am still waiting to see ANY citations from contrary opinions on this matter.[/QUOTE]</p><p><br /></p>

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