Buyer has paid for items but has not picked them up in over 3 months

[what-girls-want-au]

I sold a number of individually listed  items to a buyer who lives interstate. She told me that she wished to pick these up as they were too fragile to ship. She said she would be in Sydney 8 weeks ago and would collect them then. She paid around $520 Bank Deposit but the individual prices were around $30 each. I have tried to contact her on numerous occasions but have received no response.

I have looked into the Abandoned Goods Act to see exactly what I can do but that seems to apply to Business sellers (which I am not). It is quite confusing because it gives different disposal methods for  values of goods under $100, $100-$500,  & $500 and above. Do I base my decision on the individual prices of the items or the total value?

I  want to do the right thing by the buyer as it is a large amount of money but really don't know what to do. I can't just issue a refund as she paid Bank Deposit. I don't even have a record of the sale in My Ebay anymore.

I really need the items out of my life!!

Hoping someone can point me in the right direction. Thanks in advance

[*crikey*mate*]

The Op wants to know what to do with goods in her posession that legally belong to someone else.

Please note, it was the OP that instigated the legalities of this situation.

As shown above,bailment is the transfer of possession.

Now, lets look at the tort Interference with Goods. Specifically Conversion.

Conversion occurs when a person deals with goods in a manner that is repugnant to another's right to possession of the goods.

Now, can ya see why its relevant? Can ya see why the OP is concerned with the manner in which she disposes of the goods?

[thecatspjs]

The usual clutching at straws.

The OP can take or leave my advice, or someone elses, or no-one.  Thats up to them.   

I certainly no longer wish to debate my advice with anyone that IMO makes belittling posts about what experience and skills I, and others, may or may not have to draw from.  

Over and out.

[*crikey*mate*]

Excuse me, I did not belittle your posts, in fact I even acknowledged them refer post 5

and as your advice to contact the OFT was good, I felt no need to address that, and it appears that the OP is pretty intelligent and doesn't need anyone to point that out to her more than once, I'm sorry that I didn't throw some streamers around and celebrate.

However, you did express an opinion that the AGAct wasn't relevant to the OP citing that it was the SoGA, however, the OP is about the disposal of property which she doesn't own, and the SoGA does not cover this. The SoGA is really only relevant for issues pertaining to a contract of sale.

Let me emphasize this

The OP is about the disposal of property in her possession which she does not own. => BAILMENT

By your own admission, it is the Abandoned Goods Act which deals with BAILMENT, whilst the Sales of Goods Act deals with issues pertaining to Contracts. It does not deal with the issue of Bailment in any manner.

If any belittling of posts occurred, it was you who belittled MY posts and then supplied incorrect information.(see posts 7, 9 & 12)

and faced with these facts, it is very wise of you to discontinue with your "debate" as you clearly exhausted any valid advice that you may have in post 4, none of which has been disputed by anyone, although parts of it have since been shown to be incorrect following your initiation of "debate" at post 7.

(and your statement about auctions is just wrong)

[thecatspjs]

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@thecatspjs wrote:

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@crikey*mate wrote:

Let me emphasize this

The OP is about the disposal of property in her possession which she does not own. => BAILMENT

By your own admission, it is the Abandoned Goods Act which deals with BAILMENT, whilst the Sales of Goods Act deals with issues pertaining to Contracts. It does not deal with the issue of Bailment in any manner.

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Reply to clarify incorrect claims:

Bailment (under the Act)  relates to bailed goods only.  The goods the OP has in her possession are not bailed goods.  

I did not "admit" anything.  I indicated that I did not think that the Abandoned Goods Acts applied in general.   I raised bailment in a separate response.

Of course the Sale of Goods Act does not deal with the issue of bailment - it deals with the sale of goods.

The Sale of Goods Act makes reference to delivery of goods - including neglect of purchaser to collect from seller.

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Correction to my post - underlined above. I meant my post did not deal with bailment.

[*crikey*mate*]

But it doesn't tell her what to do with the goods! It only clarifies that the buyer owes money for additional expenses incurred for storage etc!

The Sale of Goods is Not in dispute!

Ownership is not in dispute.

But the person in possession of the goods doesn't own the goods in question, but she wants to get rid of them!

They ARE BAILED GOODS! 

Bailment describes a legal relationship in common law where physical possession of personal property, or a chattel, is transferred from one person (the 'bailor') to another person (the 'bailee') who subsequently has possession of the property. It arises when a person gives property to someone else for safekeeping, and is a cause of action independent of contract or tort.

"Possession and Ownership are two fundamental concepts that underpin tresspass to goods, detinue and conversion" (Mendelson, 2010. p. 204.)

"Ownership connotes a legal right to have and to dispose of possessions and enjoyment of the subject matter..." (Gleeson CJ, Gaudron, Kirby & Hayne JJ in Yanner v Eaton (1999) 201 CLR 351 at 368)

"Under the system of bailment, the owner of a chattel (Bailor the buyer in this case) can transfer the physical possession of it to another person (bailee the seller in this case) on the basis that the bailor retains the ownership of the property: the baillee becomes the custodian of the chattel and takes care of it for the duration of the bailment." (Mendelson, 2010. p. 204.)

There are three types of bailments:

1. for the benefit of the bailor and bailee
2. for the sole benefit of the bailor; A bailor receives the sole benefit from a bailment when a bailee acts gratuitously (e.g. a restaurant, seller's place of business,  the bailee (the seller), provides an attended coatroom place to store some goods free of charge to its customer, the bailor the buyer).and
3. for the sole benefit of the bailee.

The buyer became the legal owner of the goods as soon as she won the auction,

The buyer, who is the legal owner of the goods has asked the seller if she will act as custodian of the goods and keep them safe in her possession until she collects them.

The seller offers a place to store the goods, free of charge, for their customer (the buyer)

THAT IS BAILMENT

The seller, who does not own the goods (anymore) wants to end the possession.

She is seeking to do so in a legal manner and as such is referring to the legislation that deals with this, which is the UGA.

The SoGA does NOT tell the seller how to do this. It only tells the seller what costs they are entitled to recover for the storage/insurance etc of the goods if they fail to recover them. It does not deal with ownership/possession and the right to dispose of the goods. It is two different things!

but so far at least, the seller cannot even find the buyer, so it will be difficult for her to exercise her right to recover costs of storage etc, but if she can find the buyer, the SoGA certainly tells her that she can. But it does not tell her what to do with the goods that now belong to somebody else and nor does it tell her how to end her period of possession, which is what the UCGA is doing!

The seller has indicated NO desire (to us) to seek damages for storage etc, so the SoGA is irrelevant except that it did provide us with a likely definition of how to treat the auction lots.

Furthermore, she didn't even ask what to do with the goods, she has obviously already determined that, her question was about how to categorize them! So the reality is that nothing has been accomplished since post 5 and it could have all stopped there if you had not have insisted on "debating" and confusing the issue FGS!

[davewil1964]

All I know about bailment is in regards to taxis, whereby the driver bails (hires/takes possession of) the taxi in accordance with specific requirements as to the bail.

I believe it was originally to do with property, and that it has nothing to do with sale of goods.

Given that bailment is essentially rent, as opposed to sale, and does not apply in the case of uncollected goods.

ie The Seller has not bailed the goods from the buyer in a bailor/bailee agreement. They have sold them and the buyer hasn't taken possession.

Totally different imo.

[*crikey*mate*]

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@davewil1964 wrote:

All I know about bailment is in regards to taxis, whereby the driver bails (hires/takes possession of) the taxi in accordance with specific requirements as to the bail.

That is one type of bailment, there are 5 (8 if you count the 3 in your category)

"loan for hire (locatum). Also called locatio et conductio, this is subdivided into locatio rei, or hiring by which the hirer (bailee) gains a temporary use of the thing,"

I believe it was originally to do with property, and that it has nothing to do with sale of goods.

You are right about it having nothing to do with the sale of goods,"Bailment is distinguished from a contract of sale or a gift of property, as it only involves the transfer of possession and not its ownership"

Given that bailment is essentially rent, that is only one kind, there is also gratuitious bailment (even the loan of a library book falls under this category)

as opposed to sale, and does not apply in the case of uncollected goods.

Gratuitious Bailment does not involve the mutual exchange of anything, and does not have to involve money (refer library book example or a collateral service provided for a customer example) and these have everything to do with uncollected goods.

ie The Seller has not bailed the goods from the buyer in a bailor/bailee agreement. They have sold them and the buyer hasn't taken possession.

Totally different imo.

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[davewil1964]

So I'm right.

The OP's situation, wherein they sold goods and the goods haven't been collected by the buyer, has nothing to do with bailment.

Thanks for clarifying that.

[*crikey*mate*]

sure

[thecatspjs]

No matter how one might distort and misinterpret law that does not apply in the situation, the goods in the OPs situation are not bailed goods. 

They are goods that have purchased and not picked up, as happens frequently on ebay. 

The conditions of the sales contract have not been met, on this basis the seller can pursue action accordingly including seeking to cancel the contract on the basis of this breach.  

Actions to remedy the current statemate, might include attempting to obtain mutual agreement with the buyer to cancel the contract on refund (or partial refund) of funds through writing to them or if the buyer remains uncontactable filing a civil claim to have the contract terminated. 

Or the seller may do as many other sellers do in this situation and just wait and see if the buyer ever makes contact with them again.