topic Re: Item received broken in Buying

Item received broken

diffusiongroupie — Tue, 13 Jan 2015 02:37:13 GMT

I bought an item from a seller. It is actually the 2nd one I have purchased from them, the 1st one arrived fine. The 2nd one arrived shattered and broken. I emailed the seller and asked what I am to do and this was their reply:

We are so sorry to hear thatyour item arrived broken .. Unfortunately once the parcels leave our hands we have no control over what happens to them .. We do state in our listing that we will not be responible for lost or broken items ..

Does that mean I have no recourse?

Thank you

Re: Item received broken

tall_bearded01 — Tue, 13 Jan 2015 02:43:54 GMT

Extract from the eBay Money Back Guarantee Not Covered - items damaged during...postage.

So if you can't afford to lose it insure it.

Re: Item received broken

ydgonline06 — Tue, 13 Jan 2015 03:17:19 GMT

I sent something which got broken.
I sent a replacement AND eBay also refunded including postage.
Never got the item back. Never got the promised photo of broken iem.
eBay wore the refund. So far I have not been charged for the refund, and eBay said I would not be. We will see.

Re: Item received broken

diffusiongroupie — Tue, 13 Jan 2015 03:25:18 GMT

I did immediately send a photo of the broken item.

I have re read the listing and it doesnt say anything about it not being their responsibility if it is damaged?

Im not asking to cause issues, its so I can learn for next time.

Re: Item received broken

davidc4430 — Tue, 13 Jan 2015 05:41:04 GMT

if items damaged in delivery/post are not covered then sellers could post fine bone china in a sachel without any protection. thats crazy. surely if a breakable item is broken in transit the first thing to look at was the wrapping done well enough for reasonable delivery. i have in the past bought quite a lot of a dinner set from multiple sellers and never lost any to breakage in delivery, allways had plenty of bubble wrap ect. but even well wrapped items could be broken if jim carey is the delivery guy.

Re: Item received broken

tall_bearded01 — Tue, 13 Jan 2015 08:44:04 GMT

I repeat, it says, in black and white that goods damaged in the post are not, repeat ARE NOT covered. If you have a problem with that then don’t shoot the messenger.

So where does that leave the buyer. They still have a right to file a negligence claim in the small claims court in which case they will have to prove the breakage was on account of the sellers negligence and the mere fact it arrived broken in itself doesn’t prove negligence.

Re: Item received broken

cherry*135 — Tue, 13 Jan 2015 11:30:24 GMT

Open a Paypal Dispute - Significantly Not as Described (SNAD)

If you look at this link

https://www.paypal.com/cgi-bin/webscr?cmd=xpt/Marketing/popup/UAeBay-outside

at 13.7 SNAD definition

An item is Significantly Not As Described if it is materially different than what the seller described in the item listing. Here are some examples

the last point is

- The item was damaged during shipment.

I am not sure if that link is 100% up to date as it mentions 45 days to open a dispute, but that is now 180 days.

Worth your while finding out about this if you paid by Paypal.

You appear to have given the seller a chance to help you with this problem, which they have denied.

It also contravenes eBay policy for sellers to state in listings they aren't responsible for items lost in the post (not your issue, but is this sellers attitude).

Was the parcel adequately packaged?

Re: Item received broken

tall_bearded01 — Tue, 13 Jan 2015 20:12:08 GMT

Sorry but PayPal Buyer protection doesn’t cover items damaged in transit.

Why?

Where a person buys something with the intention of it being delivered by carrier, risk passes from the seller to the buyer when the item is handed to the carrier. This is usually referred to as deemed delivery which has the legal effect of – handing the goods to the carrier is the same as if they were handing to the buyer. Therefore, for the purposes of the legislation, if they arrived damaged, they were in fact damaged after they have been received by the buyer.

PayPal Buyer Protection is nothing more than a debt collection process, but before the debt can be collected its existence must be established. This is the meaning of the word “recover” as it appears in the policy. Now deemed delivery provides that the item was damaged after it was received and as such no right of recovery exists.

Furthermore, whenever this issue is raised the usual reasoning used ( as they were damaged before they were received this means they are no longer “significantly as described” the time they were received} again ignores the legislative fact that they were damaged AFTER the had been delivered – refer back to deemed delivery.

Then of course there is the problem that, for purposes of the legislation the words “not as described” has a specific meaning, and that meaning has nothing to do with items damaged in transit. As such, if PayPal’s intention was to expand the meaning of those words for the purposes of the policy to include items broken in transit for the purposes as they have done in the UK agreement, the the policy must expressly say so, and it doesn’t. That is, UK PayPal buyer protection makes specific reference to items damaged in transit as falling with the provision of ‘Significantly Not as Discribed” yet the Australian agreement doesn’t.

The point, it is time to consign this eBay myth to the same waist receptacle as all other long cherished but well past their use by date PayPal myths such as ‘Sellers must prove delivery”, and “PayPal protects the buyer, registered post protects the seller” with this one being next.

So what is a buyer to do? Let’s start by becoming acquainted with their legislative rights.

For instance, when it comes to deemed delivery the Act clearly places the BUYER in charge. That is, where an item is to be delivered by carrier the seller is the agent for the buyer (refer to the subject too provisions of deemed delivery), and as such, the buyer can stipulated not only the carrier to be used, but also the service including HOW THE ITEM IS TO BE PREPARED FOR SHIPMENT – in a sturdy box all sides reinforces with polystyrene sheeting, with all items individually wrapped in bubble wrap and then suspended in peanuts or shredded paper. That is, if you are in any doubt the seller knows what they are doing tell them what you want.

Finally if the buyer takes control and issues the necessary instructions and the seller fails or refuses to comply, then deemed delivery ceases to apply and the goods are at the seller risk until they have ACTUALLY been received.

Re: Item received broken

a_beautiful_room — Tue, 13 Jan 2015 20:46:40 GMT

To my mind there's the legal definition (as so succinctly explained by tall_bearded) and the moral obligation.

You should not have to accept a broken item.

In the past you could open an "item not as decribed dispute" (if you don't know how to do that then come back and ask) You will have an opportunity to explain your side of the story and maybe you can even upload a picture. If this doesn't get the sellers attention, then escalate to a claim, and by doing so you give ebay / paypal the right to determine judgement about whether you should get a refund. Which is a no brainer in my opinion. They might ask you to send the broken item back, and if a seller made me pay to return an item which I had clearly shown was broken I would reflect this in my feedback.

I don't care what the legal definition is from either ebay or paypal. I've paid good money for a broken item and I would make a claim. Given ebay's insistance in the past on a "defamation form" to remove negative feedback (which made my solicitor howl with laughter when I asked him to sign it) I would do what I thought was right, not what ebay or paypal's legalese designed to confuse everone opined.

Just my opinion.

Re: Item received broken

tall_bearded01 — Tue, 13 Jan 2015 22:15:43 GMT

I have been collecting fine china for as long as I can remember and am now in the process of downsizing a sizable collection most of which, because we have moved to smaller premises, is contained in about 400 boxes in the garage, and to get the best price, I’m selling piece by piece on line.

Recently had a buyer tell me an item had arrived broken. Asked them to return it to the post office with the packaging and put in a claim, and then assign any rights to compensation to me, and after they completed what I asked, I gave them a full refund.

But there is a fundamental difference between what buyers' think a seller should do, and what they are legally obliged to do, and the buyer who relies on the former is in for a very rude shock when confronted by a seller who relies on the later.

That is, ignorance is not bliss. Learn what you need to do to protect yourself, because when the proverbial hits the fan, it could mean the difference between getting you money back or not.

And yes the buyer can lodge a claim with PayPal, but the seller has a right of appeal, and that appeal will be decided by a body which is not remotely interested in what the PayPal Policy says or what buyers’ think the obligation should be. Instead the only consideration is what the legislation actual says the entitlement is. Therefore, if the item arrives broken, and if PayPal decide for the buyer, and if the seller appeal, then the decision will, let me repeat that, WILL, be reversed and PayPal know that.

So where does that leave the buyer, either PayPal refunds out of its own pocket by way of a discretionary payment and they appear to becoming more and more reluctant to do so, or they, as they are doing with item not received claims where seller proves postage, tell the buyer, as no right to recover exists that all they can do.

As for the eBay Money Back Guarantee, yes again the buyer can lodge a claim. The astute sellers’ response - ‘This is a claim for an item which the buyer asserts arrived broken. The guarantee clearly states “Not Covered – Items damaged during…postage”. End of claim.

Re: Item received broken

daniellebradydesigns — Wed, 14 Jan 2015 06:22:04 GMT

If it was properly wrapped by the seller, the seller is not responsible.

If however, the seller wrapped it carelessly and it would be apparent that it would get broken during transit quite easily, then the seller could potentially be liable, in eBay or PayPal's eyes.... but you would have to be able to prove it. If you don't feel that it was wrapped properly try an Item Not Described case. And point out that the item was poorly packaged and arrived damaged, attach photo's if necessary.

With that being said, take note:

Generally, if something is damaged during transit you take it up with AusPost, they have a claims process for damaged and lost items. If the item could easily be damaged, if it's glassware etc, take out insurance to cover the cost of any possible damage, it makes it a lot easier to deal with AusPost and recover your funds.

Once the seller posts something it is no longer their responsibility, it becomes the buyers property. And thus the buyers responsibility.

So take out insurance when you purchase something fragile.

Re: Item received broken

cherry*135 — Wed, 14 Jan 2015 10:28:58 GMT

The buyer can open an item significantly not as described dispute via Paypal, if they paid via Paypal. Why are you trying to confuse them about their right to do that?

AP decide if the parcel was packed adequately or not. From other posters experiences posted on this board, AP doesn't accept liablity very often.

Re: Item received broken

thecatspjs — Wed, 14 Jan 2015 10:27:35 GMT

@tall_bearded01 wrote:
I have been collecting fine china for as long as I can remember and am now in the process of downsizing a sizable collection most of which, because we have moved to smaller premises, is contained in about 400 boxes in the garage, and to get the best price, I’m selling piece by piece on line.

Recently had a buyer tell me an item had arrived broken. Asked them to return it to the post office with the packaging and put in a claim, and then assign any rights to compensation to me, and after they completed what I asked, I gave them a full refund.

But there is a fundamental difference between what buyers' think a seller should do, and what they are legally obliged to do, and the buyer who relies on the former is in for a very rude shock when confronted by a seller who relies on the later.

That is, ignorance is not bliss. Learn what you need to do to protect yourself, because when the proverbial hits the fan, it could mean the difference between getting you money back or not.

And yes the buyer can lodge a claim with PayPal, but the seller has a right of appeal, and that appeal will be decided by a body which is not remotely interested in what the PayPal Policy says or what buyers’ think the obligation should be. Instead the only consideration is what the legislation actual says the entitlement is. Therefore, if the item arrives broken, and if PayPal decide for the buyer, and if the seller appeal, then the decision will, let me repeat that, WILL, be reversed and PayPal know that.

So where does that leave the buyer, either PayPal refunds out of its own pocket by way of a discretionary payment and they appear to becoming more and more reluctant to do so, or they, as they are doing with item not received claims where seller proves postage, tell the buyer, as no right to recover exists that all they can do.

As for the eBay Money Back Guarantee, yes again the buyer can lodge a claim. The astute sellers’ response - ‘This is a claim for an item which the buyer asserts arrived broken. The guarantee clearly states “Not Covered – Items damaged during…postage”. End of claim.

Paypal buyer protection does not exclude goods damaged in transit.

An item may be considered “significantly not as described” if:

The item is completely different to that represented by the seller at the point of sale;
The condition of the item is significantly different to how it was described;
The item is unusable and was not disclosed as such. (Note, this applies to the item in its received state.);

Any one who asserts that a decision WILL be reversed in favour of a seller is being a bit too black and white in this scenario - there are too many shades of grey in this type of transaciton.

Re: Item received broken

cherry*135 — Wed, 14 Jan 2015 10:33:45 GMT

IF a seller didn't pack delicate items adequately and they got damaged in the post, why shouldn't the seller be the one that refunds the buyer? Are you saying TB, the seller can appeal the Paypal decision to refund the buyer and win even if they didn't take enough care to package the goods properly?

Read stories here of sellers wrapping. for example, a china plate in a piece of newspaper and putting it in a satchel! Result: breakage.

Re: Item received broken

thecatspjs — Wed, 14 Jan 2015 21:44:40 GMT

@tall_bearded01 wrote:
Extract from the eBay Money Back Guarantee Not Covered - items damaged during...postage.

So if you can't afford to lose it insure it.

bump

this snippet .... cut and paste from the policy is very misleading ....

so much so, that I believed your assertion TB

it appears it is incorrect - it is conditional on the buyer organising post or freight themselves

Not covered

Buyer's remorse or any reason other than not receiving an item or receiving an item that isn't as described in the listing (see the seller's return policy for return options).
Items damaged during pick-up or postage or not delivered when the buyer arranges pick-up or delivery of the item (for instance, the buyer arranges freight).
Duplicate claims through other resolution methods.
Items sent to another address after original delivery.
Vehicles, Real Estate, Websites & Business for Sale, Classified Ads and services, Tickets, Digital Goods and Intangibles.

Re: Item received broken

tall_bearded01 — Wed, 14 Jan 2015 23:16:40 GMT

“The item is unusable and was not disclosed as such. (Note, this applies to the item in its received state.);”

Just another example of cherry picking.

The words as “applies to the item in it received state” is in the context of the words that proceed it “unusable and not disclosed as such” That is this sub clause is limited items which were unusable at the time they were listed and not disclosed as such. That is you cannot rely on your highlighted words and simple ignore the ones that preceded them

However I would accept that the words appear to be capable of an alternative construction, which extends their meaning beyond the condition it was in when listed,to include the condition it was in when received, and that in itself would not run contrary to the legislation. But that simply brings into play deemed delivery that is, handing the item to the carrier has the same legal effect as if the item had been handed to the buyer, which means, if it is damaged in transit it was damaged AFTER it was received.

As for

"It appears it is incorrect - it is conditional on the buyer organising post or freight themselves

Not covered

· Buyer's remorse or any reason other than not receiving an item or receiving an item that isn't as described in the listing (see the seller's return policy for return options).

· Items damaged during pick-up OR postage OR not delivered when the buyer arranges pick-up or delivery of the item (for instance, the buyer arranges freight).

· Duplicate claims through other resolution methods.

· Items sent to another address after original delivery.

· Vehicles, Real Estate, Websites & Business for Sale, Classified Ads and services, Tickets, Digital Goods and Intangibles.

Good try but fail. It fails because the clause contains the word “or”

That is the correct interprestion of teh clause is –

Not covered – items damaged during pick –up; or
Not covered - items damaged during postage; or
Not covered – item not delivered when the buyer arranges pick-up or delivery of the item.

That is the first part of the clauses deals with items are damaged and the second part of the clause deals with items are not delivered.

Re: Item received broken

tall_bearded01 — Wed, 14 Jan 2015 23:24:26 GMT

‘IF a seller didn't pack delicate items adequately and they got damaged in the post, why shouldn't the seller be the one that refunds the buyer? Are you saying TB, the seller can appeal the PayPal decision to refund the buyer and win even if they didn't take enough care to package the goods properly?”

I have already answered the question.

If you put in a PayPal claim and PayPal find for the buyer, and the PayPal decision is appealed PayPal (and by inference) the buyer will lose. They will lose not because the buyer doesn’t have a valid claim against the seller, but because this is a negligence claim, and PayPal Buyer Protection doesn’t extend to the determination of negligence claims. That is PayPal buyer protection is limited to tow specific types of claims; where the item has not been received; and where the item is not as described, and an item damaged whilst at the buyers risk don’t fall with the definition of either for the purposes of the legislation.

Finally as I said previously, that doesn’t men they have no rights, if the item was damaged on account of seller negligence (which is exactly what we are dealing with here) it simply means they have to pursue those rights elsewhere, namely a negligenc claim in the small claims' court.

Re: Item received broken

thecatspjs — Thu, 15 Jan 2015 04:11:02 GMT

Lol - it was you TB that cherry picked the policy in your own post - you did not include the circumstances the line applied to.

My post provided a cut and paste EXACTLY as it is laid out in the paypal policy for buyer protection - word for word, only addition was bolding and underscore to highlight KEY sections you happen to have not mentioned.

IF paypal overturn an appeal made by a seller it does not necessarily come at the buyers expense.

Many Paypal claims cover buyers losses without taking the dosh from the seller.

Get your facts straight.

It is not always win -lose scenarios.

You don't seem to get that. Maybe you need to be a bit less adversial in your approach.

Re: Item received broken

thecatspjs — Thu, 15 Jan 2015 04:36:21 GMT

BTW similar to Goods Acts, under ACL acceptance is a consideration, and a consumer retains the right to reject goods that they have not had the chance to view prior to purchase, they can do this within a reasonable timeframe after receipt.

If goods were not adequately packaged or sent by appropriate post service these can be viewed as not having met the guarantee as both are within the suppliers control - unless directed by the buyer to take particular actions in relation to freight.

Under law, Paypal must give consideration to these situations.

Re: Item received broken

tall_bearded01 — Thu, 15 Jan 2015 06:37:22 GMT

No, I simply apply the definitions provided in the legislation to the words as contained in the policy – that is assigning them their actual meaning, as distinct to the meaning I think they ought to have - a process which held me in good stead for the decade and a half hat I argued real cases in front of real judges, with my area of specialty being cases involving statutory interpretation. Things like, is the Regulation 16a reduction to be applied only to multiple permanent disabilities arising out of the single trauma for which compensation is currently being claimed, or is that reduction to include all previous permanent disabilities for which lump sum has previously been paid – it is the latter (win); is the superannuation guarantee to be included in their average weeks earning – no (win), how is the Section 39 adjustment to notional weekly earnings to be calculated – too complex to go into here, (win)….

Mind you, it is also the process I used, when PayPal Buyer Protection was first introduced, when I was one of the few to argue that deemed deliver applied to the policy. That is proof it was posted is proof it was delivered, and we all now know how that on turned out.

As for the rest of the post, I‘m limiting my argument to whether PayPal Buyer Protection applies where the buyer receives an item damaged in the post. Your agreement seems to be, it matters not. Simply put in the claim in anticipation that PayPal will find for the buyer, and when the decision be subsequently overturned they can still rely on a discretionary payment. The problem a discretionary payment is it is discretionary.

As for Australian Consumer Law, it only applies to sales where the buyer falls within the meaning of consumer for the purposes of that Act, which effectively excludes goods bought at action, second hand goods and goods purchased from private individuals. So are you saying that PayPal Buyer Protection extends to item damaged in transit, but only where the damaged goods are new and been purchased from a seller who is operating a business.

As for “acceptance is consideration” from recollection a contract contains three elements – offer, acceptance and consideration; with consideration being the benefit one receives from completing your part of the contract. So if acceptance are consideration are separate elements of the same contract, how did you come to the conclusion they are the same thing.

As for adopting a less adversarial approach, I am an advocate. It comes with the territory