DOES THE SELLER PAY FOR RETURN FREIGHT

[ianp3631]

DOES A SELLER HAVE TO PAY FOR RETURN FREIGHT WHEN SOMETHING HAS BEEN DAMAGED IN THE POST EVEN WHEN THEY STATE THAT THE BUYER PAYS FOR RETURN FREIGHT IN THE LISTING

[tall_bearded01]

Thanks. I’m happy to see I can of help.

[i-love-my-sheep]

You've been a wealth of information regarding legal issues on quite a few forum topics. I for one enjoy reading your messages. Thanks for taking the time to contribute.

[thecatspjs]

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@tall_bearded01 wrote:

To prove it wasn’t damaged before it was handed to the carrier, all the seller has to do is supply an affidavit (stat dec) to that effect..

A sworn statement is proof of a fact unless the other party (the buyer) has proof to the contrary. That is once the statement has been sworn it’s not up the seller to prove they are telling the truth. It’s up to the buyer to prove they, he seller, are lying. Rules of evidence 101

Then if PayPal decide to ignore that proof, all the seller needs to do is file a complaint with the office of the Financial Ombudsman Service. And very soon thereafter, PayPal will reverse the decision

As for eBay Money Back Guarantee, it’s even easier. I refer back to my earlier post. The Guarantee expressly states that items damaged in the post are not, repeat are not, covered under the Guarantee.   Therefore, if someone, at eBay decides otherwise, it only requires a few short keystrokes to file a complaint with the ACCC.

The point. The indications are that the Guarantee is already raising a few eyebrows at the ACCC. So how do you think they are going to react, when a seller files a complaint which is proof positive that they, ebay, are not prepared abide by the very limitation that they themselves have put into place.

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Paypal do offer buyer protection for goods damaged in transit that are received not as described by buyer.  

It is too simplistic to say a seller just needs to demonstrate the goods were not damaged when they were delivered to the carrier and they should lodge a complaint to the FSO on this basis alone, this is not the case.

A seller also has a legal obligation to package the goods in a manner appropriate for freight and send by an appropriate post service for the type and value of goods being sent unless contrary direction from the purchaser is received. 

Example, I buy a delicate piece of crystal and the seller sends in a prepaid satchel without any other packaging or protective measure - the seller is likely to have not met their obligation, and paypal buyer protection may be an appropriate option.

[tall_bearded01]

No, I think it is you who have adopted an overly simplistic approach, which appears to be the old, now discredited line, if it damaged before I is received then it no longer as described in the listing at the time it is received. This line of reasoning however conveniently overlooks the fact that the relevant legislation – the Sales of Goods Act – stipulates provides, if it is damaged after it has been handed to the carrier, then it was damaged after it was delivered to the buyer. That is, delivery to the carrier is the same as delivery to the buyer.

My posts thus far have been limited to responding to the assertion that, if an item is damaged in transit, the buyer has a right to a refund vide the eBay Money back Guarantee and/or a right to recovery under PayPal Buyer Protection, with in both cases the answers being, they don’t.

They don’t because goods damaged in transit do not fall with the definition “not as described” for the purposes the relevant legislation – the Sales of Goods Act. Therefore the only way that they can fall within the definition of ‘not as described” for the purposes of PayPal Buyer Protection, is if the PayPal User agreement expressly say so. That is the words “not as described” have exactly the same meaning for the purposes of the agreement as they do for the purposes of the legislation, unless PayPal Buyer Protection specifically says they have a different meaning, and it doesn’t.

Now if you disagree, then please provide the specific clause in the Australian agreement which specifically states items damaged in transit fall within the definition of “not as described” for the purposes of PayPal Buyer Protection.  I can’t find it. Maybe you’ll have better luck but somehow I doubt it.

This then leave the buyer with no other option but to pursue a negligence claim in a court of appropriate jurisdiction, usually small claims, but here, the onus is squarely on the buyer to not only to prove negligence, but also establish who was the negligent party (the seller or carrier), and of course the mere fact it was damaged doesn’t in itself prove negligence. And in any such court, all findings of fact must be based on EVIDENCE, and the Rules of Evidence say, if the evidence is sworn, and that evidence is not successful rebutted under cross examination or other evidence, then that evidence must, I repeat MUST be accepted as a true account of what actually happened.

[thecatspjs]

Sale of Goods Acts make provision for seller responsibilities in terms of carriage and submitting them to carrier in manner appropriate for goods by freight service appropriate to type and value of goods.

Paypal buyer protection relevance:

Significantly not as described

S11.1 An item may be considered “significantly not as described” if:

1. The item is completely different to that represented by the seller at the point of sale;
2. The condition of the item is significantly different to how it was described;
3. The item is unusable and was not disclosed as such. (Note, this applies to the item in its received state.);
4. The item is not authentic and was not disclosed as such; or
5. The item is missing a major portion or quantity.

Note Paypal do not use "delivered" but received.

The ACL also makes provision for consumers to seek compensation for damaged goods from an Australian business caused by their conduct unless:

"Businesses do not have to pay for damages or losses that:

• are not caused by their conduct, or their products
• relate to something  independent of their business, after the goods left their control".

Not packaging goods adequately does not let a seller off the hook. 

If the damage was caused through inadequate packaging this is not a matter or event that is "independent of a business, after the goods left their control"

[tall_bearded01]

As I see it is, to reach the conclusions you have, you had to cherry pick discrete parts of different legislations, then melded them together to provide the outcome you wanted.

For instance, you cite the Australian Consumer Law as supporting your view, yet, that law only applies to goods purchased by “consumers”. Therefore, if, as you say, it is the Australian Consumer Law which underpins PayPal’s Buyer Protection, then that protection doesn’t apply to goods purchased from private individuals.

You then, to strengthen your argument, attempt a somewhat uncomfortable marriage between those provisions of the Sales of Goods Act dealing with where goods can be rejected - which is the actual legislative authority allowing for claims where the item is not as described - and the subject too provisions an entirely different part of the same legislation dealing with deemed delivered. Sort of like attempting to mate a horse with a cow in attempt to breed a unicorn. Looks fine on paper but….

The point, the mere fact that you are attempt to get the policy to jump though some pretty convoluted legal hoops to arrive at the destination you want speaks volumes as to the strength of your argument, especially when you consider that PayPal could put an end to the argument, by doing what it did in other, similar agreement, such as the UK User Agreement.

That is, they could simply remove the doubt by including claims for items damage in transit as a specific head of recovery under the Buyer Protection Policy; which then brooks the question, if it really is that easy, why haven’t they done it here – with maybe the answer being the same reason why eBay decided to exclude claims for items damaged in the post from the eBay Money Back Guarantee.

[thecatspjs]

Lol TB  I don't do scrollers if I can help it.

I posted some snippets in response to issues raised in your own post.

Not sorry it does not measure up to your standard, however I am very comfortable if you do not agree with my posts or posting style

IMO all the information I posted is relevant in the grand scheme of things

[tall_bearded01]

So we'll leave it by agreeing to disagree.

[thecatspjs]

Of course

I am satisfied that my snippets post contains correct and true information, nothing to debate. 

[bigpelican]

Great info, thanks so much! I've been told by my account manager that damaged in transit is cause for refund by ebay in their money back guarantee. I'll now bring this to their attention.