Damaged goods

[adam462011]

I recently purchased an item from the US which arrived broken in two pieces.  It is obviously no good to me now - I buy to resell.  I contacted the seller and offered to send pictures of the damaged item.  He emailed me back to say, "Don't bother sending pictures.  The item is over 70 years old", and therefore I should expect such things to happen and that he would "be happy" to pay back half the costs of my purchase so that we both don't suffer.  Well, I'm the one that suffers - I get half the money back on something I can't resell.  Can he legitimately make such an offer.  Yours sincerely P----- OFF!

[phorum_junkie*]

He can legitimately make the offer but you do not have to accept it. I would get confirmation from AP that the packaging was at fault then I would open an item not as described dispute. If the seller says they will only refund on return be very specific about why it would be pointless doing so as the item was broken beyond repair and is worth nothing, if it is a china/glass or similar something that would not be suitable to post when broken add that information, make sure you provide clear photos. If Paypal/ebay find in your favour but want it returned I would call Paypal/ebay and argue that it is unreasonable for it to be returned. As a last resort tell them you are contacting the ombudsman.

I would also leave the seller a neg at this stage as I would for any seller who caused me to have to open a dispute or pay for the return of a faulty item. Keep it factual and don't mention the dispute.

Please ignore TB's legalese, deemed delivery has nothing to do with Paypal and ebay's user agreements which the seller agreed to abide by.

[tall_bearded]

Recovery is the process where, if the item is received damaged, the buyer only has a right to be compensated for that damage if it was on caused by seller or carrier negligence.

The problem with relying on recovery claims is you only get compensated if the damaged was caused by seller/carrier negligence and the onus is on the buyer to prove the negligence, which in the case of inadequate packaging would be impossible to do if the buyer has already binned both the item and packaging. 

The point here, in the context of the advice previously given is, the PayPal agreement makes it clear the service being provided is a recovery service, not insurance.

Insurance means that an insurer has underwritten the liability.  This means the buyer is compensated by the insurer irrespective of the reason why the item was damage (seller negligence, carrier negligence, an act of God etc).  Then once the insurer has paid out the claim, should they believe the payment was made on account of someone other than the buyers’ negligence, they have a right or recovery against the negligent party. 

 A good common example is a car accident.  You are comprehensively insured.  Therefore it matter not whose fault the accident was; you were insured and therefore the insurance company pays for your car to be repaired.  Then after the claim has been paid, the claim is sent to the Recovery Section who determine who was at fault, and if it was the other driver, they will initiate a recovery action against that driver.  Needless to say, if you were the one at fault your insurance company will pay for the damage you caused to the other car.

So in response to your question; Can the buyer insure against inadequate packaging”, that is exactly one of the things you are insuring against

[tall_bearded]

So, PJ which part of the PayPal user agreement do you say extends the definition of SNAD to item damaged in transit. 

More specifically, what explanation do you have for the fact that though the UK (and other) User agreement makes specific mention of damaged items as falling within the SNAD provisions of that agreement, the same provision is missing from the Australian Agreement. 

Then of course PayPal could put the whole issue to rest by simply providing a statement to the effect that, thought there is no express mention of it in the Australian Agreement, damaged goods do fall with the SNAD provisions of that agreement.  Needless to say I’ve asked and am still waiting for response, and waiting, and waiting... Maybe, because you are so much more in favour with PayPal,  if you ask the same question you may have better luck getting a response; but be prepared for a long wait.  A very long wait.     

So until you can provide something better than your usual, ‘’this is the way I think it should be, therefore this is the way it must be” argument to support your views, forgive me if persist in holding to my legalistic views, if for no other reason that this way of doing things held me in good stead for the 14 years or so years I spent arguing real cases in real courts before real judges.

But you must excuse me now.  The boat is fuelled the tide is right and the King George Whiting are on the bite.  Time to get a fish dinner.

[tall_bearded]

Thanks qu-tech.  I couldn’t have put it any better.

[tall_bearded]

Ok I’ll to keep it short and simple.

PayPal is not insurance.  It says so in the PayPal agreement.  Please do some research as to what the word “insurance” actually means as distinct to what you think it means, or think it should mean.

In that part of the agreement dealing with Buyer Protection PayPal uses the specific word ‘Recover”. Please do some research as to what the word “recover” actually means as distinct to what you think it means, or think it should mean.

Now get a copy of the “Sales of Goods Act” from any State Government web site or Auslii,  and read it in its entirety, but pay particular attention to those parts dealing with “risk” “delivery” “contracts” and “Goods Bought on Description”.  Oh and don’t forget the “Definitions” section because it tells you what specific words contained in Act actually mean, and also get yourself a copy of the Oxford Concise dictionary as is the accepted reference for finding the ordinary meaning of words which are not defined in the Act.  Then go onto Auslii and start reading the case law as how the legislation is to be interpreted on a case by case basis. 

Or in the alternative, you could go to your University Book store and ask for the current reference text being used to teach Sales Contract law.  They usually run to about 400 pages and cost somewhere between $50 and $100.  Make sure you read it from cover to cover.

Now once you’ve done the necessary reading, please provide me with an answer to the following. 

Why is it that, whereas other PayPal agreements, such as the UK agreement, make specific mention of items damaged in transit as falling within the Buyer Protection policy, when it comes to the Australian Agreement it is totally missing? 

Is it because they forgot or was it deliberately omitted?

Now if you believe it’s a simple oversight, you could bring this argument to an immediate end by informing PayPal of the oversight.  Then, once they are aware of problem they can take quick action to produce the necessary amendment.  I mean how hard could it be.  It only requires the inclusion of about a half a dozen words, which, when included, would put the issue beyond doubt.

But hang on, PayPal have been aware of this supposed oversight for years and though they regularly update their agreement, they have never taken any steps to remedy this obvious oversight, and if you do the necessary reading, you may come to understand why.

[tall_bearded]

If you had bothered to read my original post you would find is so was I.

In response to the buyers question most were saying lodge a PayPal SNAD claim. To me that was POOR ADVICE ON A NUMBER OF FRONTS, and at Post 6 I introduced an alternative view.    

Firstly I am of the view the first step in any damaged goods claim is to claim compensation from the carrier, because if the carrier (Aust Post) accept liability IT PROBLEM SOLVED.

Secondly everyone else was saying, if the seller refuses to compensate, lodge a PayPal claim.  My opinion the Australian PayPal User Agreement doesn’t provide a Recovery Service OF ITEMS DAMAGED IN TRANSIT.  That is, in my view, the advice being given by others will not provide the buyer with the outcome they want.

I would also point you to the fact that, in the same post, I also identified that this item was in all likelihood  listed on the US site and as such, if Aust Post refuses the claim on the basis that the packaging was inadequate, then the buyer may well be able to make a claim vide US EBAY BUYER PROTECTION POLICY.

In fact, if poor form was introduced into this threat, it was introduced by the use of words such as “asinine” ( PJ) and “long winded & confused carp” ( you).  Mind you I have my own ideas as to your and PJ level of competence when it comes to giving advice, but, though regularly subject to personal abuse,  have, to date resist the urge to respond in kind.