Item said Not recieved Ebay/Paypal Charge Back

[queenslander-one]

I have today had a Paypal chargeback for an item said not recieved by Ebay/Paypal. Have advised the FOS as Paypal under Ebay's instruction have removed money from my account when I had Proof of Postage. (Photograph of item correctly addressed and Postmarked by my Postmaster. Waiting to hear the outcome.

Copy of my response to Ebay/Paypals removal of funds below.

Hi I sent the buyer a photo of the item posted at the Post office on the 5th Feb to his Paypal Address (Please see my Ebay emails sent) or can supply again to Ebay.

Also under Australian law item 101 of Australia post rules. 101 Articles carried by post to be taken to be Australia Post’s property.

Quote For the purpose of any legal proceeding or action in relation to an article carried by post or under the control of Australia Post, the article shall be taken to be, while it is being carried by post or under the control of Australia Post, the property of Australia Post.

In Australia, the seller is not legally responsible for delivery, only postage, therefore proof of postage is what is required Also under Paypal rules.

What is proof of shipment? • The date the item was sent; and

•An official acceptance by the shipper, such as a postmark or online status. (Status that shows the item was delivered is also acceptable.) It must also include either: •The recipient’s delivery address, showing at least the state, city and postcode (or international equivalent); or •A receipt from Australia Post showing at least the recipient’s suburb, city or postcode (or international equivalent).

If money is removed by Ebay from my Paypal account over this correctly sent item I WILL be lodging a complaint with the Financial Services Ombudsman. Ebay if it wants to provide an insurance service for so called non delivered items can but not at my expense.

Will see how I fair

[thecatspjs]

Incorrect.

The seller determines how the options as to how the goods will be delivered to the buyer when they create their listing. 

A buyer can try and negotiate the terms of the contract such as freight service or collection of goods prior to the sale. 

However, a seller is under no obligation to agree.  The method and timing of payment and delivery of goods are ultimately determined by the seller - though there frequently may be a choice to the buyer after sale and prior to payment, such as express service etc etc

[bombbloke]

I'll attempt to summarise what TB's saying (and probably get it wrong, though it's fun to try):

Once payed for, the package belongs to the seller until "delivery". Under the law, the item counts as "delivered" once the seller has passed it to a delivery service (eg a courier), so long as the buyer made the choice of using that service (which they do by eg not choosing to come and pick the item up themselves, or by not asking for other options - something they have the right to do even if the seller didn't explicitly say they could).

On the other hand, if the seller specifically only offered one delivery method - by outright stating "no pickup!" on the listing and refusing any other options when asked - then the choice was the seller's and the item counts as the seller's responsibility until the buyer actually receives it.

According to TB, that's how things stand "under law". eBay's policies don't mesh so well with that - they appear to assume that "delivery" always means "the buyer personally received the item via any method", as though the delivery method was always the choice of the seller.

So let's say you sell a package, the buyer chooses to have it posted, and later the buyer claims it's not received. You, the seller, owe the buyer nothing so long as you can proove that you handed it over to the delivery service the buyer opted for. The buyer, assuming they really didn't get the package, are owed money by eBay due to eBay's guarantee - money from eBay's pockets, not from the seller's pockets. eBay will of course attempt to take it from the seller, who can then file a complaint to recover it, because the seller legally doesn't owe anyone anything at this point (despite what eBay's policies might state).

Of course, eBay will likely get away with the seller's money if the seller doesn't know their own rights under law.

Let's say you buy a package, and don't receive it - but eBay declines to give you the money they offered via their guarantee, on the basis that apparently someone received and signed for it. (raffta's scenario). You've then got a "he says she says" situation which may go back and forth before a conclusion is reached, but that argument is completely aside from the matter of whether it's eBay or the seller (... or Australia Post?) that's actually liable.

[tall_bearded01]

As your posts appear to have degenerated to an infantile attempt to ridicule, I thing no further benefit can be derived with continuing debate this topic with you.  So in conclusion, you may want to find out the meaning of ‘third party’ which forms the basis of davewill’s opinion which is what I agreed with, and if/when you do, you will find out no contradiction exists.

Have a nice life. Discussion terminated.    

[tall_bearded01]

I guess you missed this bit “if seller says no, (you must use one of the services listed) then deemed delivery doesn’t apply”. 

Yes the seller can insist that only those services contained in the listing are to be used.  But if they do, they have compromised their deemed delivery rights, in that, by doing so, they have required the buyer to contract out of there right under the legislation to choose both the carrier and the service.

The same applies to your listings which compromises your deemed delivery rights by stating “Pick Up Not Allowed”.  See earlier posts re pickup

[joethenuts]

OH well we will have to agree to diagree [the proof is in the pudding buyer gets refunded seller gets cost deducted]

you know what I might not be as brighht as you as i only finished year 11     but at least i dont hide my identidy  i use my ebay nae on this post why are you not using yours mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm  by for now

why does your user name have nothing on it mmmmmmmmmmmmmmmmmmmmmmmmmmmmm

[thecatspjs]

---

@tall_bearded01 wrote:

I guess you missed this bit “if seller says no, (you must use one of the services listed) then deemed delivery doesn’t apply”. 

Yes the seller can insist that only those services contained in the listing are to be used.  But if they do, they have compromised their deemed delivery rights, in that, by doing so, they have required the buyer to contract out of there right under the legislation to choose both the carrier and the service.

The same applies to your listings which compromises your deemed delivery rights by stating “Pick Up Not Allowed”.  See earlier posts re pickup

---

Not so.

Just because you post it doesn't make it so.  You are wrong, very wrong in fact.

For example, Goods Act Victoria

GOODS ACT 1958 - SECT 39

Delivery to carrier

   (1)     Where in pursuance of a contract of sale the seller is authorized or required to send the goods to the buyer, delivery of the goods to a carrier, whether named by the buyer or not, for the purpose of transmission to the buyer is prima facie deemed to be a delivery of the goods to the buyer.

[i-love-my-sheep]

I'm surprised you lasted this long TB, we gave up days ago. The words brick and wall come to mind. 

[thecatspjs]

What a dull place the boards would be if everyone shared the same opinion - we are not all sheep.

[tall_bearded01]

I’ll take your – “ Where in pursuance of a contract of sale the seller is authorized or required to send the goods to the buyer, delivery of the goods to a carrier, whether named by the buyer or not, for the purpose of transmission to the buyer is prima facie deemed to be a delivery of the goods to the buyer”

And counter with - 'unless otherwise authorised by the buyer, the seller must make such contract with the carrier on behalf of the buyer as may be reasonable, having regard to the nature of the goods and the other circumstances of the case. If the seller omit so to do, and the goods are lost or damaged in course of transit, the buyer may decline to treat the delivery to the carrier as a delivery to himself or may hold the seller responsible in damages'.

You will note the second part makes no mention of who nominates the carrier but applies the same test to both, and if you want to,and have a week or two spare you can research the case law to find out exactly how broad the application of the words “having regard to the nature of the goods and the other circumstances of the case” are.

Let me give you hint, you sell a rare piece of china.  The buyer wants it hand delivered to carrier service specialising in carriage of fragile items who will pack it and delivery it with a garantee of compesnation in the case of breakage and mind you it the buyer  whoses going to pay a preimume price for it, but you say no the listing says …so select one of those, none of which provide a fragile service.  The item arrives broken, now add “having regard to the nature of the goods and the other circumstances of the case”.

[thecatspjs]

Not sure what section you pulled that from.

GOODS ACT 1958 - SECT 36

Rules as to delivery

   (1)     Whether it is for the buyer to take possession of the goods or for the seller to send them to the buyer is a question depending in each case on the contract express or implied between the parties. Apart from any such contract express or implied the place of delivery is the seller's place of business if he have one and if not his residence: Provided that if the contract be for the sale of specific goods which to the knowledge of the parties when the contract is made are in some other place then that place is the place of delivery.

Edit to note I can see the cut and paste from the relevant section.  Good try.