Selling, the laws, liability and responsibility
Hi everyone
I recently (we’ll still am) having an issue with a buyer who I believe is abusing the “money back guarantee” that eBay offer. In an effort to clarify where I stand legally I’ve been looking through the eBay user terms and conditions and the Australian legislation. This has given me a couple of questions that I would appreciate others input on, as I may have missed something or miss understood something. Below are the relevant points of info related to my question. (Some I’ve paraphrased”
1) In section 7 of the eBay user agreement, trading on eBay and limitation of liability. It is made very clear that any contract of sale is between the seller and the buyer and that eBay take no responsibility legally or otherwise.
2) In the same section it is make expressly clear that as a user it is your responsibility no eBay’s to ensure that you are adhering to any relevant laws and as a user it is your responsibility not eBay’s to enforce your legal rights and obligations under those laws.
3) In section 10 of the eBay user agreement, returns and eBay money back guarantee. It states that a seller can accept or decline a return unless the return meets the requirements of the eBay money back guarantee.
4) I am not trading as a business on eBay so any sale I make is considered a private sale under Australian law.
5) Under Australian law consumer guarantees do not apply to private sales. (Other than clear title etc)
6) When considering what rules or laws apply to any given situation the laws as stated in the relevant governing legislation take president and trump any rules, such as those in a user agreement that contradict these laws.
So this is my question.
Given that in Australia a private sale between two individuals does not come with any legal guarantee and that according to eBay’s user agreement any contract of sale is legally binding contract between the seller and the buyer alone. How exactly is the eBay money back guarantee fit into this legally? For a user to agree to offer a guaranteed return on a private sale contradicts what applies to a private sale in accordance to the Competitions and Consumer Act 2010. I would also like to understand how a user is expected to enforce their legally protected rights as a consumer when it would seem that the eBay user agreement is in place to diminish and seemingly waiver some of those rights.
I have stated that I do not accept returns. The item in question was delivered to the buyer on the 18/7. On the 25/7 the buyer wants to return the item claiming the return under the eBay money back guarantee. Which offers me no option to decline. Two days after the auction ended the buyer disclosed that they currently did not have the funds available to pay for the item and expected me to wait until he had the funds available. I was not willing to do so and reminded him he is required to make the payment within four days of the completion of the auction. If payment was not make I would be cancelling the sale in accordance the relevant eBay rules. The buyer informed me he had borrowed the money and had paid for the items, which was the case and the item was sent.
The item In question is a very rare hand plane only manufactured between 1909 and 1943 so it’s somewhere between 113 to 79 years old. It is well documented that these particular planes have a weakness in how the frog is attached to the body and it is estimated that approximately 30% of all these planes have been damaged due to this inherent weakness. The plane I sold had been repaired as it had suffered damage to to the same weakness. The repair did not effect the planes usability. There was also a crack in the lever cap of the plane. The crack in the lever cap is clearly visible in the listing photos, the repair is not due to its position. My description of the plane was simply “in great condition with original japanning” as even considering the repair it was perfectly usable and due to its rarity “great condition” i do not believe to be inaccurate. It is also completely subjective as to what one would consider “great condition” prior to the sale of my plane the last plane of this type sold on eBay for around $1700 AUD there is currently one for sale with a starting price of around $2000 AUD. Mine sold for $1250 and whilst iI was happy with this amount I believe that all things considered the price paid is under market value for the item.
The buyer is claiming, after a week or receiving the item that it does not match my description of being in “great condition” and has requested I refund $500 or give a full refund on the return of the item. I am of the firm belief that the buyer has simply decided they cannot afford the item as this was apparent from the start. I have said to the buyer I am more than happy to replace the lever cap but I will not be accepting a return. Although it appears that is exactly what eBay are trying to force me into doing.
I would argue that as the user agreement contradicts Australian consumer laws by forcing a seller to guarantee the buyers money back, where no such legal guarantee exists. The eBay money back guarantee is in breach of Australian consumer law, and as eBay state as a user it is my responsibility to enforce my legal rights any agreement to section 10 of the eBay user guide cannot and should not be allowed to be enforceable.
I welcome any input, thoughts and constructive criticism on this matter.
joshawe_7
OP3 years agoThank you everyone. I appreciate the time you have all spent in responding to my post. My initial response to the buyers return request did not have much rational to it. I was annoyed at myself for my lack of diligence and stressed out by the whole thing. Having read your responses and taking onboard the advice given I will endeavour to carry this advice forward and be a lot more mindful of the buyers perspective.
1) Yes I created the problem not the buyer. Therefor any motivation to return the item stems from my failings not the buyers
2) Yes I would be disappointed if it was me who received the plane in the same circumstances
3) Yes I should have been fully aware of the rules and policy’s I had agreed to
4) Setting up a returns policy seems far more beneficial that not accepting returns. Especially if you react the way I did…..
5) Yes this has definitely been a lesson learnt and not a mistake I intend to repeat.
I have messaged the buyer and apologised for the manner in which I responded to the return request. I have not received a response but I can hardly blame the buyer for not wanting to converse with me.
I am 42 years old and I have ADHD (diagnosed). I find it very hard to think rationally about a situation when I am stressed. I seem to default to using the fight or flight section of my brain to do my thinking in these circumstances. Which does not offer the best results. I am aware that my thoughts and behaviour are can be a little wonky and it was your responses that helped to reorder my thoughts and realIse my mistake.
thank you.
eol-products
·3 years agoWhen I read the title and seen liability mentioned I thought it may be in regard to the products being sold. I do wonder how many sellers think about liability when selling an item especially those who regularly sell.
sugar249
·3 years agoI definitely do.
At one point I dabbled with a range of kids soft toys, from a reputable wholesaler, but quickly stopped it as I realised they had pieces that kids could swallow if they got keen with pulling them apart. Never had an issue, but stopped the range. Now all my goods are checked for potential reasonable hazards.
eol-products
·3 years agoI never thought to have it as I would mainly sell new items sourced within Australia but to get a warehouse lease you need public liability insurance.
p9games
·3 years agoGiven the choice between engaging the services of a lawyer and a listing copywriter, I suggest you choose the latter.
Selling an item of this value requires detail and disclosure of any and all flaws. You didn't do that.
Case closed m'lord
k1ooo-slr-sales
·3 years agobottom line is you agreed to eBay's User Agreement when you signed up, and by continuing to use eBay you have agreed to ongoing updates of that agreement (including MBG).
That's my take on your situation.
Disclaimer: I am not a lawyer, have no legal training or experience. Anything I post on these boards is just my opinion
countessalmirena
·3 years agoMessage x375b(ii)!!!!!!!!
springyzone
·3 years agoForget all the legal jargon, for a sale of $1250, the legal costs would not be worth it.
Not that I think $1250 is peanuts, quite the contrary, but legal fees are eye watering.
Your main mistake here was to push through with the sale. When he contacted you to ask you to wait as he didn't have funds, you would have been better off to cancel the sale immediately and then send him a message to say you understood he wasn't in a position to pay so you had cancelled the sale as payment was expected within 4 days.
The trouble is, this purchase has been a major one for your buyer. He actually had to borrow to pay for it.
Then it arrived and he found it had faults not mentioned.
You have to keep in mind that items on ebay are not seen in person till after they have been paid for and arrive. So description and photos are everything.
You say something is a 'well documented fact'. Your buyer may not know that. And even if he did, unless it is mentioned, he would have no cause to think this plane wasn't amongst the 70% that don't have the fault. Fair enough that maybe you didn't realise it had repairs to this fault, but you can't expect a buyer to be happy to receive something with faults not mentioned.
You should also have described the crack, even if you think the photo was 'enough'.
What the buyer is saying to you is he would not have put himself out on a limb financially had he known the true state of the item. He would not have paid that amount. You may think it was a bargain price but that is a subjective view. It is his truth that he would not have paid over $1000 for it had he known. It doesn't mean either of you is 'wrong', it is just that you have different opinions.
And yes, the fact he is financially strapped may be contributing to his wish for a refund because of his disappointment.
But best to just get it over with and offer a refund.
repentatleisure1952
·3 years agoHi springy.
See message# 12.
repentatleisure1952
·3 years agoWhoops.... message# 13.
imastawka
·3 years agoWhat are you on?
D'ya mean message #11?
Otherwise you're telling Springy to read her own post
davewil1964
·3 years agoAccording to my feed, message 13 was by the OP.
The one where they admitted they had accepted the return, and that their description was less than ideal.
imastawka
·3 years agoHmmmm, well that's strange.
Message #13 on my feed is Springy's.
OP's is #11
repentatleisure1952
·3 years agoMessage #11 shows as being from the countessa on mine & springy is #15.
Have to admit I'm on a cocktail of prescribed meds.
*sons_n_daughters*
·3 years agoMine is also showing as message 11 as the reply to me.
Edit: Maybe Repent shows the messages as new message at the top, rather than new message at the bottom like most people do. That could explain the difference in the message numbers.
springyzone
·3 years agoI was responding to the opening post.
And to one aspect of josh's later post. It is good he decided to accept the return but I had the sense that he felt the return was motivated entirely by the buyer's need for money and not by the undisclosed fault. And that even with the fault, the item was undervalued.
I believe that view needs to be addressed. I know others have said he should have mentioned faults and he acknowledges that but I think he is wrong in his assessment. I don't think he fully appreciates how disappointed the buyer was. And probably angry too. I would be.
sugar249
·3 years agoI wonder how OP would have felt if they purchased an item that was listed in Great condition. Than when they got it, it had being repaired and had cracks on it. I'm sure they would have being as happy as Larry
*sons_n_daughters*
·3 years agoObviously the buyer REALLY wanted the item because they borrowed money to buy it. To get something that is less than what they thought they were getting would have been shattering. I would have been really pished too.
papermoon.lady
·3 years agoI agree, Springy. As a collector of antiques myself (not planes though), I totally agree that it is very important for collectors to know if an item has been repaired. It can happen of course if an item is really antique, but it should definitely be mentioned and photos of the repair are normally provided too. Apart from the disappointment in itself, the value of an antique item is diminished when it has been repaired.
joshawe_7
OP3 years agoYou are right. I wasn’t thinking rationally about the situation. It was my lack of diligence that created the situation. If I had checked the item properly and accurately described the item the situation would have been entirely avoided. I was wrong to aim my frustrations at the buyer when it was I who was at fault.
joshawe_7
OP3 years agoThanks everyone for your responses. I totally agree that my description could have contained a lot more detail. A better description would certainly not have led to this. Whilst I do not believe the buyers motivations for wanting to return item. I am more than happy to heed the advice I have been given and accept the return. I am certainly not happy about it and I may still ride around on my high horse a little but at least it is better than loosing both the item and the money.
*sons_n_daughters*
·3 years agoIf the buyer has opened a dispute, make sure you create a postage label through ebay and send it to them. Ensure you upload the tracking details into the dispute. If the buyer chooses not to use the label, and doesn't send the item back, they shouldn't get a refund (I say shouldn't, because ebay are unpredictable and change the goal posts every other day).
gutterpunkz05
·3 years agoItem Not As Described, Plane and Simple (Pun Intended), so ebays MBG will apply, and if you wish to dispute the claim you will lose.
Yes you can attempt to take direct legal action against the buyer, but guess what, you will also lose that and just add to your costs.
Edit.
Just to add your first mistake was forcing the buyer to complete the purchase.
*sons_n_daughters*
·3 years agoYou have not accurately described the item. You say it's in great condition, and here you are mentioning all these repairs it's had. Why didn't you mention them in the listing? If I was the buyer, I'd be really unhappy too. If I went by your ad, I'd be expecting an item with no repairs.
You have a choice. Accept the return and refund the buyer, then relist describing accurately everything that has been done to it, or let ebay decide, whereby they will fully refund the buyer without returning the item. If you let ebay decide, you'll be without the item AND the money. I know what I'd be doing, and it wouldn't be spouting a stack of laws.
joshawe_7
OP3 years agoI wasn’t aware of the repair when I made the listing. I had not removed the frog so the repair wasn’t visible. I should have checked. Whilst this was an oversight on my part. The repair wouldn’t have effected the usability of the plane or decreased its value. I realise this doesn’t take away from me not checking for and listing any defects it had. I’ve accepted the return. I hope I actually receive the item back.
gutterpunkz05
·3 years agoYou need to resolve the issue with the buyer, while you still can. It is up to you to resolve it to the buyers satisfaction and they are under no obligation to accept anything less than a full refund.
If ebay is required to resolve the matter you will still be liable for ebays FVF plus a $22 dispute resolution fee and you may or may not get the item back.
When a buyer indicates they are unable to, or do not wish to complete the purchase, it really is best just to cancel , then you don't even lose the initial postage cost.
countessalmirena
·3 years ago@joshawe_7
You’ve done the right thing in accepting the return. You’ve avoided the consequence of eBay stepping in (rarely a good outcome for sellers) and you’ll get back the item.
Fron what you’ve said, this is a desirable plane and you shouldn’t have any problem in relisting and selling. When you do relist, have closeups of each section and scrupulously describe everything. It may seem counterintuitive, but something that clearly states each flaw in careful and clear language often gets a better price than the same item described more vaguely and without mentioning even the tiniest of flaws.
sugar249
·3 years agoReally who cares how the law stacks up for you, you falsely advertised the item, great condition, but no mention of a repair.
If you spent as much time writing up your ad, as you did researching the law, and writing your psot above, you wouldn't be in this pickle, or was it intentional not to mention the repair?
Hopefully Ebay back the buyer and you leave Ebay, will make Ebay a better world.
joshawe_7
OP3 years agoI asked for input not ignorance. I am entitled to my opinion and I am man enough to acknowledge my mistakes. My poor description being one of them. I asked for input because I genuinely wanted to hear what other users thought and I have listed to their advice.
repentatleisure1952
·3 years agoHere's my input.
Learn to describe your items.
Forget the mumbo jumbo & accept the return.
Or stand on your high horse, ignore the return & allow eBay to refund the buyer & allow the buyer to keep the item.
You can then join a list of sellers who have threatened fruitless legal action.
domino-710
·3 years agoFor $1250 - very poorly described - in fact not described at all.
Details should be mentioned - every detail.
sandypebbles
·3 years agoSellers do not get to 'not accept returns' unless for change of mind
You did not mention the repair so most certainly not described accurately (you would have also read the part that says 'seller assumes all responsibility for this listing'
The 'Australian consumer law' chestnut is thrown around so many times by people who think rules and policies should'nt apply to them it's not even funny
Argue all you wish
This is zero doubt eBay will instantly side with the buyer if they open a dispute
There is no point members here telling you 'what you want to hear' when it simply is not true and won't happen
padi*0409
·3 years agoIf the buyer opens a dispute through the MBG you would almost certainly lose the case.
"Great condition" that does not mention the repairs to the plane is simply not good enough.