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]

---

@tall_bearded01 wrote:

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”.

---

You are now making assertions about a different issue all together.

At least that is better I suppose than your general statement earlier that a buyer can demand to pick up an item, when it is not offered as an option - which is wrong, wrong, wrong.

[lyndal1838]

---

@joethenuts wrote:

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

---

I am surprised that by Year 11 you did not learn to spell properly or at least learn to use SpellCheck on your computer.

And what do you mean by saying Tall Bearded is hiding his identity?  As long as I can remember he has used this ID on the boards.  It is a posting ID and has nothing to do with his buying and selling IDs.

Nothing at all wrong with that and was in fact encouraged by ebay a few years ago,

Many posters on the boards do not expose their buying/selling IDs on the boards for fear of auction interference or other obnoxious behaviour by other members.

[tall_bearded01]

You cited section 39 of the Victorian Goods Act but limited your citation to sub section 1 only.  That is you failed to have regard to the subject-too provision as contained in Subsection 2 of section 39 which limits the application of deemed delivery.

As for section 36, it is the introductory section that provides general principles governing all aspect of delivery, whereas section 39 specifically deals with one kind delivery – delivery by carrier.  That is, section 36 provides the general principle, section 39 provides how those principles are modified and applied to a specific circumstance - where goods are delivered by carrier.

But this is pretty basis first year law studies kind of stuff.  The introductory section provides an overview. the remaining section provides specific rules tied to specific circumstances.

[thecatspjs]

I am not sure why your posting ID is fixated on law studies ?   Consistent theme throughout your posts overtime.

It is quite irrelevant really. 

In any case, as usual, your posting ID strays off topic...

I can not see the link to pick up of goods and your claims regarding a clause pertaining to Delivery to a Carrier.

In subsection 2  - in the context of an eBay sale, the terms of the listing including delivery will give the seller necessary authorisation for the seller to send the goods in manner the goods were advertised to be sent.

All your reference to this section demonstrates is that a seller can be held legally responsible for goods that are damaged or lost if they are not sent in adequate packaging etc etc - you have actually argued against that this is the case in other threads - LOL.

[indigorosey]

As I see it all this legal argument is moot if eBay promises buyers a service over and above what is required by law (this promise then becomes enforceable by law) as they guarantee the user receives the item. 

Unfortunately we are bound by the User Agreement and it appears eBay have taken ownership of the review and refund process.

When a buyer doesn't receive an item

If a buyer doesn't receive an item, the buyer needs to report that they didn't receive the item by contacting the seller from My eBay. The seller should address the buyer's concern and provide updates on the delivery of the item, tracking information, or a refund.

If the buyer isn't happy with the seller's response or doesn't receive a response, the buyer can ask us to step in and help.

If asked to step in and help, we review the information provided by the buyer and seller for evidence of successful on-time delivery to the buyer's address.

We require proof of signature to confirm delivery for items with a total cost of $750 or more.

If we determine that the item wasn't successfully delivered, we refund the full cost of the item and original postage via PayPal or as otherwise agreed. The seller will be required to reimburse us for the amount unless the seller can provide compelling reasons as to why the seller should not cover the costs. It is up to the seller to ensure that items are correctly listed and packed appropriately to avoid damage to the item in transit. Learn more about reimbursement.

[thecatspjs]

...unless the seller can provide compelling reasons as to why the seller should not cover the costs.

Compelling reason - the practice is potentially illegal or is illegal (as it will depend on the circumstances of each case). 

That being said, in the past (prior to MBG) when parcels of mine have not reached the buyer I have compensated them and sought compensation from Australia Post.

Now that eBay offers this guarantee to buyers - if I have another missing parcel and a buyer opens a claim I will fight it out with eBay - as they are, among other things, not allowing me as a seller to follow due process, which in the first instance is for AP to do an investigation. 

[indigorosey]

---

@thecatspjs wrote:

...unless the seller can provide compelling reasons as to why the seller should not cover the costs.

Compelling reason - the practice is potentially illegal or is illegal (as it will depend on the circumstances of each case). 

That being said, in the past (prior to MBG) when parcels of mine have not reached the buyer I have compensated them and sought compensation from Australia Post.

Now that eBay offers this guarantee to buyers - if I have another missing parcel and a buyer opens a claim I will fight it out with eBay - as they are, among other things, not allowing me as a seller to follow due process, which in the first instance is for AP to do an investigation. 

---

I'm currently in a situation where the buyer has said they did not receive the item - although tracking shows it was delivered. I have lodged an enquiry with AP but if they don't find it I'm in who-knows land as to what will happen regarding refunds!

I liken it to the Pizza company who advertises 'get it fast or get it free'. Does the company pick up the tab, or the delivery driver, or does the customer first have to prove it didn't arrive on time. Really difficult for everyone.

As to the legality of it, maybe it would come under unfair contracts? I don't know if it can be deemed illegal until somebody challenges it.

---

[tall_bearded01]

“I am not sure why your posting ID is fixated on law studies?   Consistent theme throughout your posts” petty much means I wasting my time.

Legal interpretation is at the core of interpreting legislation, with each word contained in it having a specific meaning, and with that meaning being determined by legal precedent, and it is obvious that you, at best, simply chose to ignore its very existence – precedent that is.

So you go along and continue proffering your someone unformed and over simplest opinions, based on selective reading of those portions of the legislation with which you agree and ignoring those parts you don’t.

On the other hand I'll continue to formulate my opinions basis on the words as contained in the legislation and what precedent says they mean, and we’ll allow the reader to decide who’s opinion they prefer.

Oh, and the fact that someone takes issue with someone else receiving thanks which they, in part, think rightfully belongs to them speaks volumes as to the maturity of kind of person I am dealing with.  I have been advised by some of the regulars here that it is futile trying to rationally debate topic with you and I think its time I took up that advice.

Discussion ended

[thecatspjs]

---

@tall_bearded01 wrote:

“I am not sure why your posting ID is fixated on law studies?   Consistent theme throughout your posts” petty much means I wasting my time.

Legal interpretation is at the core of interpreting legislation, with each word contained in it having a specific meaning, and with that meaning being determined by legal precedent, and it is obvious that you, at best, simply chose to ignore its very existence – precedent that is.

So you go along and continue proffering your someone unformed and over simplest opinions, based on selective reading of those portions of the legislation with which you agree and ignoring those parts you don’t.

 

Discussion ended

---

Better to be simple and considered in advice, than give foolish advice to others.

[tanyaxoxo82]

I disagree that Ebay's policy is in contravention to Australian Law. Australian Consumer law provisions do require sellers to deliver the goods that a buyer has paid for. I have worked in consumer law and trust me when I say that if you went to any tribunal or Court in the country with this situation, they would definitely side with the buyer who has paid for goods that were not received. It doesn't matter if you can prove they were sent, that is not the same as received, and the Sale of Goods Act or Australia Post provisions would not help because the provisions of the Competition and Consumer Act trump anything else. The Australian consumer law provisions are weighted very heavily in favour of consumers (buyers). This is why I always charge for shipping that includes both tracking, and signature on delivery. If the item is valuable enough, I also include insurance in the shipping fees. Shipping is the seller's risk, not the buyer's.