Item received broken

[diffusiongroupie]

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

[tall_bearded01]

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

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

[ydgonline06]

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.

[diffusiongroupie]

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.

[davidc4430]

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.

[tall_bearded01]

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.

[cherry*135]

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?  

[tall_bearded01]

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.

[a_beautiful_room]

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.

[tall_bearded01]

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.