Delayed delivery, apparently not sellers fault!

[glass-in-motion]

After reading about the PayPal 180 day return policy in the UK and US, I thought I'd check on the ACCC website for Australian laws regarding returns.

I found a booklet called 'Consumer Guarantees: A guide for consumers'.

Now, I have always believed, as a seller, I was responsible if an item is lost in the mail or delayed, but according to this booklet I'm not responsible.

Below is taken from page 17 of the booklet

You are not entitled to claim against a seller where the failure to meet a consumer guarantee is due to:

• something someone else said or did, unless it was their agent or employee

• an event that was beyond the sellers control (for example bad weather or delays in delivery)

Does this mean it's okay for sellers to claim, in their listings, that  "they are not responsible for items lost or delayed by Australia Post" ?

Would appreciate other sellers thoughts on this.

Clare

[the_pooze]

Couple of "cut and pastes" from the ACCC website that are relevant.

Additionally, though I'm having trouble tracking down the exact information, Sellers as the CONSUMERS of the service eBay provides can not legally have their rights under Australian Law limited, reduced or nullified by any terms or conditions in eBay policy (the contract of service).  There's also some enlightening passages about unfair financial burden, unfair risk, etc worth having a trawl around to find.

Whilst there seems to be a lot of Buyer protection written into eBay policy, and the Sellers usually eat it because of that, most of it isn't legally enforceable simply because the Buyer is not actually purchasing an item from eBay but, from an eBay Seller.  A contract exists between the Seller and eBay and not between the Buyer and eBay.

Yeah, I know, try and do anything about it but, hey, I feel better at least knowing I'm gunna get the shaft and there's not a damn thing I can do about it no matter how illegal it is.    

      Exceptions to guarantees

Consumer guarantees do not apply if you:

• got what you asked for but simply changed your mind, found it cheaper somewhere else, decided you did not like the purchase or had no use for it
• misused a product in any way that caused the problem
• knew of or were made aware of the faults before you bought the product
• asked for a service to be done in a certain way against the advice of the business or were unclear about what you wanted

Rights to a repair, replacement, refund, cancellation or compensation do not apply to items:

• worth more than $40 000 purely for business use, such as machinery or farming equipment
• you plan to on-sell or change so that you can re-supply as a business
• bought as a one-off from a private seller, for example at a garage sale or fete (but you do have rights to full title, undisturbed possession and no unknown debts or extra charges)
• bought at auction where the auctioneer acted as an agent for the owner (but you do have rights to full title, undisturbed possession and no unknown debts or extra charges).

What is not covered?

Businesses do not have to pay for damages or losses that:

• are not caused by their conduct, or their products
• relate to something  independent of their business, after the goods left their control

[the_pooze]

Here's the bit about Unfair terms in a contract:

How can I tell if a term in my contract is unfair?

There are a number of factors to consider when deciding whether a term is potentially unfair. The fairness of a term must be considered in the context of the contract as a whole.

The following questions can help you recognise a potentially unfair term, but it is important to note that the final decision on whether a term is unfair can only be made by a court.

• Does the term cause a significant imbalance between your rights and obligations and those of the business?
• Is the term reasonably necessary to protect the legitimate interests of the business?
• Would the term cause you detriment (financial or non-financial) if the business tried to enforce it?
• How transparent is the term?

[5kazam]

I'm and early nighter, early riser - so will absorb your posts with coffee in hand tomorrow morning.

[cherry*135]

Does this mean it's okay for sellers to claim, in their listings, that  "they are not responsible for items lost or delayed by Australia Post" ?

No it isn't OK. eBay policy specifically states that is not allowed.

I nearly bought something from a seller this week with the 15% off promotion, until I read that statement  (as above) in their listing.

[the_pooze]

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@am*3 wrote:

Does this mean it's okay for sellers to claim, in their listings, that  "they are not responsible for items lost or delayed by Australia Post" ?

No it isn't OK. eBay policy specifically states that is not allowed.

I nearly bought something from a seller this week with the 15% off promotion, until I read that statement  (as above) in their listing.

---

BUT, eBay can not legally enforce a policy/contract term to usurp a persons rights and protection under Australian Law......................

Thus the wheel turns and we have another version of the discussion regarding whether the chicken or the egg came first.......

[digital*ghost]

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@am*3 wrote:

Does this mean it's okay for sellers to claim, in their listings, that  "they are not responsible for items lost or delayed by Australia Post" ?

No it isn't OK. eBay policy specifically states that is not allowed.

I nearly bought something from a seller this week with the 15% off promotion, until I read that statement  (as above) in their listing.

---

Personally, since it's perfectly legal to make a statment such as 'will not take responsibility for lost mail', I'd like to eBay to allow it, because I'd also like to know which sellers choose not to. And not necessarily so that I can avoid buying from them, but so I can make an informed purchase decision (that being, to buy or not to buy, to risk standard postage or spring for registered).

You have to remember it's only the statement eBay disallow, not the practice. If a seller can prove postage of your item, and you didn't opt for or request a service that carried compensation  etc, the seller is (generally) 100% within their rights to refuse a refund or replacement. eBay will even remove related defects if a seller proves postage, regardless of whether they refunded or replaced.

[thecatspjs]

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@yarravalleywoodcraft wrote:

Would PayPal be able to get away with this here?  We have laws in place to cover sellers and buyers.  We beat them once, maybe we'll have to do it again should they try this ridiculous idea

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The Australian Consumer Law (ACL) covers consumers within Australia purchasing from Australian businesses and it does not have any specific timeline cut off provisions for seeking to return goods that are faulty, do not fulfill their purpose or were described in a misleading manner, as long as it is within a reasonable time frame.  Reasonable time will vary of course depending on type of goods purchased.

[cherry*135]

The OP asked if she could put that statement in the listing, as it is not allowed  by eBay, she can't/shouldn't. That is all my post covered.

[digital*ghost]

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@am*3 wrote:

The OP asked if she could put that statement in the listing, as it is not allowed  by eBay, she can't/shouldn't. That is all my post covered.

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And that's when I decided to opine on eBay's policy. 

Plus, I (obviously wrongly, so my apologies for that) assumed you meant something more since I already mentioned eBay's policy.

(I have a hunch that might come across the wrong way, I assure you I don't mean anything by it, just clarifying why I put words in your mouth post).

[cherry*135]

I didn't read your post further back up there ^^  

It annoys me when sellers put that in their listings ( and those with 101 Terms and Conditons).