topic DEEMED DELIVERY in Selling

DEEMED DELIVERY

phorum_junkie* — Tue, 05 Feb 2013 22:36:42 GMT

After years of 'debate' about deemed delivery I decided to get clarification so sent this email the the OFT

I wonder if you can clarify something for me. On the ebay discussion boards there is a member who keeps quoting legislation that appears to say that once a seller hands over the goods to the delivery service the item is deemed as delivered and the buyer has no right to a refund. They keep saying that this overrides Paypal buyer and seller protection so even if the buyer qualifies under their policy for a refund for non receipt the seller can refuse

.
I find this impossible to believe and would like to be able to quote something that makes it clear that a buyer is always entitled to their money back if they do not receive what they paid for.

This is the reply

Under the current Australian Consumer Law implemented 01 January 2011

(there then follows a lot about what is a consumer and who has to provide guarantees but none of it applies to delivery but I can c&p it if anyone wants to read it)

If a product has been purchased and not supplied by an Australian based trader (not a private seller), the consumer is entitled to a refund.

By way of general information, for transactions made via credit card you can report a dispute to your credit card provider. Most providers have a helpline designed specifically for this purpose. Disputed transactions are usually suspended during an investigation and incur no interest. If the transaction was made PayPal you may be eligible for PayPal's Buyer Protection, however with both of these options please note there are time limits attached to the procedure, so it is essential you inform them as soon as possible.

So it appears that the OFT are quite happy with the Paypal buyer protection policies and there is nothing there that says companies can wriggle out of their obligation by quoting deemed delivery.

Re: DEEMED DELIVERY

2106greencat — Tue, 05 Feb 2013 23:43:05 GMT

I'm lost....but then I usually am. Thanks for the info (I think) :-x

Re: DEEMED DELIVERY

digital*ghost — Wed, 06 Feb 2013 01:05:13 GMT

PJ, I appreciate that you sought clarification, but I'm afraid for me that clarifies nothing.... 😞

If a product has been purchased and not supplied by an Australian based trader (not a private seller), the consumer is entitled to a refund.

If a seller sends something, have they not supplied it? That doesn't confirm when delivery is deemed to have occurred, and doesn't say that a buyer has to have received something before a seller's obligation is ended.

I don't see anything that really makes what is deemed delivery clear, and I would have thought it would be easy to say, hi, you (or the other person on eBay) is right, delivery is deemed to have occurred at such and such a point....but it doesn't seem like they did that?

And if the OFT are happy with buyer protection, I assume that means they're happy that a seller can send something via C&S, but in the event it isn't received, as long as the seller retains the correct documentation, the buyer has no way to recover their money from the seller.

Re: DEEMED DELIVERY

phorum_junkie* — Wed, 06 Feb 2013 06:06:43 GMT

I think we can take it that as I specifically asked about deemed delivery that supplied is interchangeable with received. especially as they advise to contact your card provider or Paypal if you do not get your item!

I am pretty sure the Distance Selling Regs are even more specific, I used to have a link to where it was stated unequivocally that deemed delivery did not apply to on line and telephone orders but I mustn't have copied the link from my old computer.

Re: DEEMED DELIVERY

digital*ghost — Wed, 06 Feb 2013 06:41:55 GMT

I'm sorry, but I just can't take that sentence as unequivocal proof - it is still open to interpretation, as evidenced by your response...I don't think we can take supplied to be interchangeable with received at all...

I think the pertinent question is why, if a buyer is entitled to a refund simply because they don't receive an item purchased online, they don't actually have a way to guarantee they get one if the seller can prove postage?

Would that not make PayPal's buyer protection clauses illegal, both by not taking the funds back from the seller or providing a discretionary payment?

In other countries, the law is quite clear - the seller is responsible until the buyer receives it, and PayPal's policies in those countries fully reflect that. If that's the case in Austalia, why don't the Australian policies reflect that?

I know you have said that PayPal made a concession for Australia due to the high cost of postage here, but I personally don't see how or why PayPal would care in the slightest what the cost of registered post was or is. You also said, when C&S was first introduced, that you wouldn't be surprised now that there is a cost-effective alternative to registered, if PayPal made it so that proof of delivery was required.... The only change PayPal made to their policies after C&S was introduced was to add the clause that buyers may not receive a refund if the seller can prove postage (whereas before, they would effectively provide a discretionary payment).

Re: DEEMED DELIVERY

crypsynight — Wed, 06 Feb 2013 08:51:44 GMT

I'm with D*G on this one. The answer they have provided seems to me to be somewhat ambiguous.

They don't say the 'buyer received' they say 'trader supplied', so it is back to the original question. Has it been supplied upon posting, or when it is received?

Re: DEEMED DELIVERY

i-once-was-bump — Wed, 06 Feb 2013 12:44:06 GMT

I have to ask, what is the OFT?

I cannot work it out, I am tired but that doesn't stop my from feeling very stupid asking the question.

Re: DEEMED DELIVERY

lyndal1838 — Wed, 06 Feb 2013 12:47:48 GMT

Office of Fair Trading?

Re: DEEMED DELIVERY

digital*ghost — Wed, 06 Feb 2013 17:18:26 GMT

Ok.... This is not an easy thing to find in black and white, and in clear simple terms. I read through the entire document that was referred to above (The Australian Consumer Law guide for consumers and lawyers). The problem with that document is, although it states all the rights consumers have and that they apply to online trading, the document deals solely with what rights consumers have after goods have been received by the consumer - there is nothing in the entire document that refers to what rights a consumer has if an item is purchased online and subsequently not received.

There is obviously information about the obligations and responsibilities sellers have, but again they did not deal with lost mail items etc, the closest it got was whether a consumer has the right to claim for consequential loss if consumer guarantees are not met, which is a whole different kettle of fish.

After all my searching and reading, the only thing I found was this:

Who is responsible for undelivered goods or damage in transit?

Read the delivery terms and conditions before you buy from an online seller. That information usually explains how such issues are handled and who is responsible if goods are not delivered or get damaged in transit. If you are not sure whether insurance is included in the cost of the goods or the shipping charges, email the seller about this before buying the goods.

While completing a sale, you might sometimes be given a choice of delivery options and even asked if you want to insure your goods at extra cost.

Contact the seller immediately if your goods have not arrived within the stated time or they are damaged.

That is a direct copy/paste from the NSW Fair Trading website (link: http://www.fairtrading.nsw.gov.au/Consumers/Ways_to_shop/Online_shopping.html), and while again it is not unequivocal proof of when delivery is deemed to have occurred, the question is phrased so that if the seller were legally responsible until the buyer physically receives the goods, the answer would be just that, and not "read the seller's policies".

Re: DEEMED DELIVERY

lane-ends — Wed, 06 Feb 2013 17:46:28 GMT

After all my searching and reading, the only thing I found was this:

Who is responsible for undelivered goods or damage in transit?

Read the delivery terms and conditions before you buy from an online seller. That information usually explains how such issues are handled and who is responsible if goods are not delivered or get damaged in transit.

But dont Ebay and Paypal policies override whatever we put on a listing anyway. We would be hard put to refer to our TOS to resolve a paypal claim

Re: DEEMED DELIVERY

digital*ghost — Thu, 07 Feb 2013 00:13:51 GMT

As far as I am aware, neither eBay nor PayPal have a policy that states the equivalent of a seller being legally responsible for delivery once an item is posted.

PayPal do not override a seller's terms if indeed they have the 'no responsibility...' line, they only ask that you prove you at least posted it, and eBay just tell you you can't have that line in certain places of your listing.

Re: DEEMED DELIVERY

coast_golf — Thu, 07 Feb 2013 05:32:57 GMT

I realise that this is a topic that you have strong feelings on and while I appreciate the effort you have made to contact the OFT in the hope of obtaining a 'concrete' answer, I'm slightly puzzled why you chose to direct your question to them for a couple of reasons.

1. The OFT deals only with purchases from a registered business and therefore a significant number of eBay sales fall outside of the OFT's reach.

2. The OFT cannot offer legal advice, indeed the vast majority of their staff have no legal training whatsoever and only specialised units have any powers of enforcement.

A lot of people aren't going to like the answer but in reality the answer is about as straight-forward as anything ever gets in law.

First things first, an eBay sale constitutes a contract. This is not in dispute (Smythe v Thomas). Every contract contains a number of terms that must be met and provided that these terms are lawful and not considered unconscionable (unfair to a particular party), once each of these terms have been met then neither party has any recourse against the other provided that neither party has acted negligently or fraudulently.

Title passes when agreed upon, in the absence of a specific term then it is implied that title passes once payment has been made for the item in full. In effect, once payment has been made the seller becomes bailee until the items are sent as per the terms of the contract, he/she remains responsible for the item until the terms of the contract have been met despite have no financial interest in the item.

Let's assume that we have sold an item that we intend to send by standard (non registered/insured) post as per our eBay ad. Upon winning an auction or clicking buy it now, the buyer has accepted your terms and the contract has been formed, the buyer has agreed to standard carriage unless agreed otherwise at a point prior to the sale. While obviously the seller has a legal obligation to take reasonable steps to ensure the item isn't damage prior to postage, once the item has been posted as per the terms contained with introduction, the sellers obligations cease and the contract is considered performed.

Whether or not the item is ultimately delivered is of no legal consequence to the seller by virtue of the various Sale of Goods Acts (and similar) throughout the various states. In QLD the law states -

Unless otherwise agreed, the goods remain at the seller’s risk until the property therein is transferred to the buyer, but when he property therein is transferred to the buyer, the goods are at the buyer’s risk whether delivery has been made or not.

As title passes to the buyer upon payment being made in full, excluding the sellers obligations as a quasi-bailee there is no obligation on the part of the seller to ensure that delivery is ultimately made. Once it has been posted then that is it, end of chapter. Of course it all changes if in your ad you state 'I guarantee delivery' but I don't think I've ever seen an ad with this term.

Paypal clearly understands the law, hence why you need only prove postage and not delivery to be eligible for seller protection. If delivery was required under Australian law, I guarantee Paypal would require proof of delivery every time a not received dispute is made.

This now brings us to the terms and conditions you agreed to when placing an eBay ad and accepting a Paypal payment. It is extremely important to note (and this is something that I think a lot of people struggle to comprehend) is that eBay and Paypal conditions do not supplant statutory and common law, that is where there are inconsistencies between Paypal's conditions and Australian law, the law wins out every time.

What this means is that although Paypal require, at a minimum, a postal receipt with the buyers postcode or a tracking number of some description, it does not mean that a court or tribunal would uphold these terms.

Assuming Paypal have found in the buyers favour, you would have to lodge a claim with the appropriate body in your state and being the complainant, the burden of proof would rest with you. In civil matters, this standard is considerably less than the criminal 'beyond a reasonable doubt'. The civil standard is 'on the balance of probabilities' meaning that you need only demonstrate that you 'probably' posted them item and your claim will be successful.

My knowledge is restricted to QLD but I'm aware of QCAT accepting photographs of parcels and even feedback indicating that there have been few or no aggrieved buyers as evidence that the items have indeed probably been posted. Paypal aren't silly though (name one multi-billion dollar company that is!), where they are of the belief that they are unlikely to successfully defend a claim then they will settle. If you have 4 or 5 figure feedback at 100% or close enough to it, this is likely to be enough on its own for your claim against Paypal to be successful.

To summarise, there is no obligation on the seller to prove delivery. The seller need only prove postage and there are substantial differences between Paypal's and QCAT's (and presumably interstate tribunals and courts) definition of proof should the dispute proceed that far.

Re: DEEMED DELIVERY

jameshouseofstyle — Thu, 07 Feb 2013 06:48:21 GMT

PP guy told me the same thing in the very last coversation we had with them, regarding a proof of postage.

It was quite an interesting revelation, that being that if seller sends the item without tracking, they award the payment to the buyer because of claimed non receipt, and seller contests the decision - the seller will win as legally they did send it, they can't be responsible for the parcel that the third party is handling (PO or a courier) - and the buyers can leave negative f/back, but that is all they can do.

But, saying that, all good sellers don't want to see anyone out of pocket and will replace or refund, - but they don't have to.

Maybe because of the f/back (ability to leave it) buyers and sellers have not tested this out, but if a seller refused to do anything at all for the buyer as they have already supplied it once, it really is up to the buyer to secure the postage by paying more.

I have often read advice on the boards given to everyone to not pay anything registered as that is for seller's protection, but in reality is other way around.

In the eyes of the law (not PP, as they are not the law, that is just one of their rules to make their job easier, applying only to Ebay, not all web site purchases), once buyer paid, seller posts - and that is the end of it.

Re: DEEMED DELIVERY

tall_bearded — Thu, 07 Feb 2013 17:05:47 GMT

As the challenge was directed towards the member “who keeps quoting legislation” I assume that member was me.

No I haven’t been avoiding his thread. I’ve simply been away on other matters and this is the first time it has come to my notice.

Firstly I wish to thank both Digital Ghost and Brothers-In-Arms-XXXX for doing the heavy lifting on this one.

Now Phorum-Junkie if you still cling to the outdated notion that Smyth is simply that airplane decision and that eBay and/or PayPal are somehow exempted from the legislation, then here are a few questions you may wish to consider.

Why is there in effect three different legislation covering the same topic. The state based Sales of Goods Acts and Fair Trading Acts (each state has their own), and the Federal Trade Practices Act?

Do these three Acts conflict with each other or do they complement each other?

If they complement each other, then in the context of all three legislations what is the meaning of the word supply/supplied? That is, for the purpose of the combined legislations, is the item said to have been supplied when it has been received or is it when delivered, and if it is when delivered, then why would deemed delivery not apply.

To assist you to answer these questions I would recommend you obtain a copy of Australian Mercantile Law. They are available at any University book shop.

Jameshouseofstyle

I understand the sentiment, but I must none the less disagree.

The choice of the delivery service to be used rests with the buyer, and the legislation clearly imposes an onus on the seller to do as buyer instructs. That is, if in my listings I only provide for regular post, and the buyer says no I want it sent registered, then the seller must do as the buyer instructs, because if they don’t, they may well find themselves at risk until the item is actually received.

Now most buyers chose regular post as it’s cheaper, but at the same time ignoring that it can, and will be, safe dropped. This means the choice the buyer has made has placed the item at risk of being stolen after it was actually delivered, and one of the reasons why Australia Post has stopped compensating for items sent by regular post is because, since the introduced tracking of all parcels and satchels, their data shows that the vast majority of item asserted as not received actually went missing after they were safe dropped (delivered).

My point is this, call me old fashions but I still believe a person should hold themselves accountable for the decisions they make. Therefore, if you pay for regular post, as it is you who have place the item at risk of being stolen after it has been delivered, you have no one but yourself to blame if it’s not there when you get home.

Re: DEEMED DELIVERY

phorum_junkie* — Thu, 07 Feb 2013 21:50:57 GMT

I am saying no more on this subject other than should any Aus registered business try to get out of refunding me by quoting deemed delivery I will see them in court.

Should anyone else try that tactic, a non registered business, a private seller or an overseas seller, I will stick with Paypal and/or my card provider as those sellers do not come under the auspices of any SOG, DSR or Fair Trade legislation.

Re: DEEMED DELIVERY

tall_bearded — Fri, 08 Feb 2013 02:19:20 GMT

PJ; what you do to protect your rights as you perceive them is not the issue here.

You threw down the gauntlet, providing what you believed to be authority in support. We have responded. It’s now up to who reads the post to decide whose opinion they prefer.

But then of course the issue could easily be put to bed right here, right now. All that eBay and/or PayPal need to do coming here and clarify their policy position on deemed delivery – which is what they have been on more than one occasion been invited to do, but to date have failed to do. This in itself speaks volumes.

As for “Should anyone else try that tactic, a non registered business, a private seller or an overseas seller, I will stick with Paypal and/or my card provider as those sellers do not come under the auspices of any SOG, DSR or Fair Trade legislation”

There is now a body of authority which suggests, that where a buyer located in Australia buys something from someone overseas Australian Consumer Protection Laws apply to the contract. However these authorities are not definitive, but even if they were, enforcement is still an issue.

As for items purchased in Australia, when you read the legislation you would come to realise that the Sale of Goods Act is the core legislation on which all the others are founded.

You would also come to realise the Sales of Goods Act(s) deal with how and when a contract is formed, the rights and responsibilities of the respective parties to the contract and the recourse a party has if the other party breaches or fails to abide by a term contained in the contract.

Finally you would also come to realise – and this is the important bit – that this Act applies to all contracts involving the sale or goods irrespective of whether the seller is a private individual, a small business (registered or not) or an incorporated entity (company), which of course means deemed delivery applies even where you purchased something from someone other than one who falls within the definition of operating a business.

That is, the Sales of Goods Act applies to all sales irrespective whether the seller is a business or not. As for the other two Acts these are an extension of the Sales of Goods Act with one regulating non incorporated entities (sole traders partnerships etc), whilst the other regulates incorporated entities.

So why is one a State Act whilst the other is a Commonwealth Act, the Constitution requires that it be so.

Re: DEEMED DELIVERY

2106greencat — Fri, 08 Feb 2013 03:13:25 GMT

Repeat Post #1 :_|

Re: DEEMED DELIVERY

dylan11235813 — Fri, 08 Feb 2013 04:59:16 GMT

To maintain a good feedback rating the seller basically has to refund or replace an item anyway.

Also if a buyer leaves a comment in the feedback like "don't trust seller item not posted" would this be considered defermation and the feedback removed? I dont think a negative is removed though.

What if a buyer words the feedback like "dont trust seller I didn't receive my item" ? Something that is not part of the sale, assuming it was posted as requested.

Re: DEEMED DELIVERY

digital*ghost — Fri, 08 Feb 2013 05:15:48 GMT

I personally believe that there is a difference between what is right (in the legal sense), and what is practical, and a difference between what is right and what makes good business ethics and practice. These are things that often should be left up to an individual to decide (where they do have the choice, that is), so my primary goal for continuing to discuss this topic is purely to determine an irrefutable, factual answer to the question 'who is legally responsible...", and I should note that is a little different to "who can, at least initially, be made responsible by eBay / PayPal / credit card providers?"

Re: DEEMED DELIVERY

bright-byte — Fri, 08 Feb 2013 05:55:55 GMT

Once posted the Buyer is responsible as long as the Seller has met the Buyers postal/delivery requests end.

If the Seller has not met the buyers postal/delivery requests then the Buyer has recourse end.

Deemed Delivered is upto Ebay / Paypal to clarify.... yehhh right never end :^O