topic Re: Damaged goods in Buying

Damaged goods

adam462011 — Wed, 03 Oct 2012 06:34:27 GMT

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!

Re: Damaged goods

flotsam-jetsom — Wed, 03 Oct 2012 06:47:52 GMT

So long as you paid with paypal you can open INAD and you will get a full refund, but you will of course have to return the item at your expense. Maybe worth looking into the half refund as it may well work out the same monetry loss

Re: Damaged goods

kopenhagen5 — Wed, 03 Oct 2012 07:08:13 GMT

If the breakage is something sharp, then PayPal will often not require it to be returned as it's considered dangerous.
And you can mention that in opening the case. 😉

Re: Damaged goods

*sparklz* — Wed, 03 Oct 2012 07:21:50 GMT

Take it to the PO and ask they deem it too sharp for the post can they give you a letter to fax to paypal to verify this then you will get a full refund without returning it.

Re: Damaged goods

digital*ghost — Wed, 03 Oct 2012 08:05:19 GMT

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 !

I would personally take issue with that. Things don't break just because they're old - age can make them a little more fragile, but things break if they're packaged and/or handled poorly.

If I had an antique on my shelf that spontaneously combusted, I don't think anyone would say, oh well, it's to be expected, it was pretty old... :8}

Re: Damaged goods

2106greencat — Wed, 03 Oct 2012 08:16:32 GMT

oh well, it's to be expected, it was pretty old...

pretty awesome to see though :^O

Re: Damaged goods

tall_bearded — Wed, 03 Oct 2012 19:13:07 GMT

PayPal Australia does not cover you for items damaged in transit, because here in Australia, an item damaged in transit, for the purposes of the relevant legislation, doesn’t falls within the definition of Significantly Not As Described. This is the reason why, whereas in some countries (eg the UK), the PayPal User Agreement makes specific mention of items damaged is transit as falling within the definition of Significantly Not As Described for the purposes of that agreement, whereas in other agreements, such as the Australian agreement, it has been omitted. If you don’t agree look, for yourselves.

In any event, when it comes to items damaged in the post, the first step is to take the item and packaging back to Aust and lodge a claim for an item damaged in transit. Now if they agree the packaging was adequate they will compensate and its problem solved. If they consider the packaging is inadequate, they will reject. But you need a decision one way or the other to prove seller negligence.

Now if Aust post reject the claim, your options are pretty much determined by the user agreement pertaining to the site on which the item was listed, which in this case in all probability is the US site, and if it was the US site, then you may qualify for buyer protection on that site.

That is it, is my understanding that, when it comes to the US site, it is eBay and not PayPal who provide the buyer protection. Therefore I think you would need to contact online help for that site for advice, as to whether you qualify for protection, and if so, how to go about accessing it.

Re: Damaged goods

thecatspjs — Thu, 04 Oct 2012 23:50:40 GMT

Open a paypal claim for item not as described - don't even get into whether the item was broken in transit, you have no way of knowing that.

The seller could have dropped it as they were packaging it, who knows. Regardless, it has been received as not as described.

I suggest uploading clear pictures of the item to your claim, and note in the claim description you are seeking not to ship goods back to seller due to sharp edges of this item and that there are stringent, additional post requirements that add significant costs to return this item to seller (far in excess of usual post lodgement requirements).

If a dispute and claim is opened the seller might even change their mind and refund you in full.

Re: Damaged goods

tall_bearded — Fri, 05 Oct 2012 07:21:17 GMT

Yes I guess the buyer could do as you suggest.

But hang on a minute, does not the relevant legislation say, delivery to the buyer is deemed to have been complete when the item has been handed to the carrier. That is delivery to the carrier has the same legal effect as if the item had been handed to the buyer.

Now if you accept the above is the correct legal standing of the parties when it comes to the definition of when the item is said to have been delivered, then you must accept that if it’s damaged after it has been handed over to the carrier, this means it was damaged after it was delivered. I only say this because this is the legal concept as it was explained to me when I undertook the Commercial Law component of my course in Business Studies, but what the heck, what do they know.

So what will you say to the buyer when they say, “I took your advice and simply binned the item and packaging and instead of claiming compensation from Aust Post I lodged a PayPal Item Significantly Not As Described claim only to told, as the seller has disputed the claim, your claim has been refused because PayPal agrees with the seller interpretation that damaged items do not within PayPal Buyer Protection of the Australian User agreement, and as such they recommended I lodge a claim with Aust Post. Unfortunately, as I had already, on your advice, disposed of both the packaging and the item, Aust post is now telling me they can’t/won’t consider my claim. As for the seller they are telling me, we can’t assist you further.

So let’s look at the alternative. Buyer sends e-mail to seller advising item arrived broken and they will take it to the post office tomorrow and lodge a claim, and requesting (note the word requesting) advice as to the seller attitude should the claim be denied on the grounds of inadequate packaging; to which my response would be, “once you have lodged the claim, simply assign your compensation rights to me, and once Australia Post confirms that has been done, I’ll reimburse you the cost of the claim”. Rationale, if Aust Post accepts the claim I get the compensation. If they reject it, I can always fight the decision, either with the ombudsmen or in the small claims court and I already have the necessary blank forms on file. All I need to do is fill in the blanks.

So let’s get back on topic. The first thing this buyer should do is take the item and packaging to Aust Post and lodge a claim and if the claim is accepted that is the end of matter excepting for feedback, and as the seller has already indicated they are not prepared to assist, neutral or negative feedback is warranted, with my leaning being towards negative.

Now, if Aust Post refuse the claim, as the item was in all likelihood purchased from a listing on the US site, the buyer may well be entitled to be compensated vide eBay USA under their Buyer Protection policy, but they need to get on to the US site live help to find out if they qualify or not.

Finally, if Aust post say no, and eBay US say no, then the only further advice I can give this buyer is, you, the buyer, own the goods being transported. Therefore it’s you who is at risk if the item is lost or damaged in transit. So if you want to mitigate you risk, insure the item; and the PayPal User agreement clearly sates Buyer Protection is not a policy of insurance.

As for “The seller could have dropped it as they were packaging it, who knows. Regardless, it has been received as not as described” this statement itself demonstrates such a fundamental lack of understanding of the legal principles involved, as not to be worthy of further comment, excepting to say buy yourself a good legal reference book, and look up the chapter headed Sale of Goods and then find out the meaning of words such as specific goods, delivery, receipt, risk and recovery, as it is how these words are actually defined, and not how you think they should be defined, which determines what rights the buyer actually has.

Re: Damaged goods

davewil1964 — Fri, 05 Oct 2012 07:34:20 GMT

So if you want to mitigate you risk, insure the item;

But you can't insure against inadequate packaging can you? AP won't anyway. If the seller didn't adequately package the item I can't imagine the carrier being held responsible for any damage received in transit.

Re: Damaged goods

phorum_junkie* — Fri, 05 Oct 2012 08:40:28 GMT

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.

Re: Damaged goods

tall_bearded — Fri, 05 Oct 2012 08:43:08 GMT

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

Re: Damaged goods

tall_bearded — Fri, 05 Oct 2012 09:31:06 GMT

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.

Re: Damaged goods

tall_bearded — Fri, 05 Oct 2012 19:32:05 GMT

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

Re: Damaged goods

tall_bearded — Mon, 08 Oct 2012 01:13:49 GMT

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.

Re: Damaged goods

tall_bearded — Mon, 08 Oct 2012 03:03:32 GMT

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.