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

[rick2u]

I couldnt agree more with offering standard postage, postage with trackign postage with tracking and signature, because if the customer didnt select the one that offers the best protection they took the risk that should be the end of the matter

nearly everything I send goes out as letters, under 125g or over, so I pay 70c or $1.40 or $2.10 or $3.50 to send them, if I had to include tracking (and with ebays postage fee addition) I would have to charge $8.25 to send something worth $2 no one is going to pay that, and ebay need to realise not everything can possibly or reaslitically have tracking.

Im changing all  my postage options to give the buyer the choice (they already have the choice of express) and will start photographing all items after postmarked to cover my butt at least with paypal.

thanks for the info re postage laws too being that all you have to do is post it and you are done.  How do ebay get past this with their own rules and ACCC do nothing.

[joethenuts]

it does not matter what aus post policy is  its up to the seller to choose how to send a parcel   ebay does not tell you to send thru aus post , you dont have to send articles out ala  pick up only.

ebay is the boss  they say if you dont get your parcel we will refund you   just like what happened here just because you use a service not good enough thats your fault , were does ebay say you must use aus post

and the proof is in the puding this buyer got there money back and the seller got the money taken out of there account 

p.s they got a once off payment refund ,,,

[tall_bearded01]

“it does not matter what aus post policy is  its up to the seller to choose how to send a parcel   ebay does not tell you to send thru aus post , you dont have to send articles out ala  pick up only.

ebay is the boss  they say if you dont get your parcel we will refund you   just like what happened here just because you use a service not good enough thats your fault , were does ebay say you must use aus post

and the proof is in the puding this buyer got there money back and the seller got the money taken out of there account 

p.s they got a once off payment refund ,,,”

Before proffering an opinion as to what a buyer rights and responsibilities are, you really need to undertake either a basis course in business studies, or at the very least, purchase and read an authoritive text such as the current edition of “Australian Mercantile Law”.  That is there is a fundamental difference between how you think things should be, and how they actually are.

Firstly, as eBay neither owns the goods being sold, and as those goods are not being sold on consignment by eBay, eBay is not a party to the contract.  Therefore it is the Terms and Conditions of Sale as provided in the listing by the person selling the goods (the seller) which forms the sole basis of the contract for the sale of those goods, with that contract being exclusively between the seller and buyer.

Now the contract between seller and buyer is subject to what is holistically called “Consumer Law” with the two main ones being the “Australian Consumer Law” (only applies where the goods are sold by and entity which is the in the trade of selling goods for profit – business sellers), and the “Sales of Goods Act” (which applies to all transactions irrespective of the status of the seller – private individual, business seller etc.), and when you look at both you will find that –

The buyer owns the goods no later than when they pay foe them, but they are not at the buyers risk until delivered.

That is, unless the contract specifies otherwise, the place for delivery is the place where the goods are located at the time sold. Therefore, unless the listing specifically and clearly states otherwise (“no pickup allowed’), the buyer has an absolute right to go to the place where the item is located and demand they be handed over, with delivery having occurred, and risk passing to the buyer when they are handed over.

Then, if the buyer, having paid for the goods, is unwilling or unable to pick them up, then they can ask for someone to pick them up for them, or ask the seller to arrange for them to send to them by carrier.  Furthermore if the listing provided a carrier option, then, if the buyer asks for them to be delivered, the seller is contractually obliged to send the goods to the buyer by carrier, but as the goods belong to the buyer, unless again the contract specifically and clearly specifies otherwise, the buyer has an absolute right as to the choice of carrier and service to be used. That is by including a carrier element in the TOS it affords not only allows the buyer to ask the seller to arrange delivery by carrier if are unable to collect them, but also unless the clearly clearly stipulates that the delivery options as contained in the listing are the only ones to be used, then the buyer has an absolute right to instruct the buyer to use someone/something else.

Finally, if the buyer chooses to have it delivered by carrier, then the seller is the buyer’s agent for the purposes delivery, and as such, they are required to do everting reasonably practical to ensure it arrives safely, and having done all these things for the buyer, handing the goods to the carrier has the same effect as if the goods had been handed to the buyer – risk passes from the seller to the buyer. That is, handing the goods to the carrier has the same effect as if the buyer had gone to the place where the goods were located and picked them. up.

But as with all things, there are exceptions. 

For instance, none of the above usually applies if the seller stipulates in there listing “Pickup Not Allowed” in which case, normally the goods are at the seller is risk until actually received.  That is because it was the seller and not the buyer who chose to use the carrier– I say normally because there may be further exceptions which may impact on the outcome. 

So where does the Money Back Guarantee fit in. Ascribe to the word "delivery/delivered" as contained Guarantee the same meaning as per the legislation (that is as above) and get a wholly different outcome to the one you envisage.

[tall_bearded01]

Wouldn’t allow me to edit.  Edited version

Before proffering an opinion as to what a buyer rights and responsibilities are, you really need to undertake either a basis course in business studies, or at the very least, purchase and read an authoritive text such as the current edition of “Australian Mercantile Law”.  That is there is a fundamental difference between how you think things should be, and how they actually are.

Firstly, as eBay neither owns the goods being sold, and as those goods are not being sold on consignment by eBay, eBay is not a party to the contract.  Therefore it is the Terms and Conditions of Sale as provided in the listing by the person selling the goods (the seller) which forms the sole basis of the contract for the sale of those goods, with that contract being exclusively between the seller and buyer.

Now the contract between seller and buyer is subject to what is holistically called “Consumer Law” with the two main ones being the “Australian Consumer Law” (only applies where the goods are sold by an entity which is the in the trade of selling goods for profit – business sellers), and the “Sales of Goods Act” (which applies to all transactions irrespective of the status of the seller – private individual, business seller etc.), and when you look at both you will find that –

The buyer owns the goods no later than when they pay for them, but they are not at the buyers risk until delivered.

Unless the contract clearly specifies otherwise, the place for delivery is the place where the goods are located at the time sold. Therefore, unless the listing specifically and clearly states otherwise (“no pickup allowed’), the buyer has an absolute right to go to the place where the goods are located and demand they be handed over, with delivery having occurred, and risk passing to the buyer, when they are handed over.

Then, if the buyer, having paid for the goods, is unwilling or unable to pick them up, then they can ask for someone to pick them up for them, or ask the seller to arrange for them to send to them by carrier.  Furthermore if the listing provided a carrier option, then, if the buyer asks for them to be delivered, the seller is contractually obliged to send the goods to the buyer by carrier, but as the goods belong to the buyer, again, unless the contract specifically and clearly specifies otherwise, the choice of carrier is for the buyer to make.  That is, unless the TOS clearly and specifically state that only the carrier options contained in the listing are to be used, the buyer has an absolute right to instruct the seller to use someone else. 

Finally, if the buyer chooses to have it delivered by carrier, then the seller is the buyer’s agent for the purposes delivery, and as such, they are required to do everting reasonably practical to ensure it arrives safely, and having done all these things for the buyer, handing the goods to the carrier has the same effect as if the goods had been handed to the buyer – risk passes from the seller to the buyer. That is, handing the goods to the carrier has the same effect as if the buyer had gone to the place where the goods were located and picked them up.

But as with all things, there are exceptions. 

For instance, none of the above usually applies if the seller stipulates in their listing “Pickup Not Allowed” in which case, normally, the goods are at the seller is risk until actually received.  That is because it was the seller and not the buyer who chose to use the carrier – I say normally because there may be further exceptions which may impact on the outcome. 

So where does the Money Back Guarantee fit in. Ascribe to the word "delivery/delivered" as contained Guarantee the same meaning as per the legislation (that is as above) and get a wholly different outcome to the one you envisage

[joethenuts]

TO MR BEARD i asume you are a mister as you would not look that pretty if you were a girl with a beard.

after reading your post which took me about 3 days to read lol    in plain english whithout the exceptions in this case were the buyer did not get his goods delivered by the sellers courier  does the buyer have a case .

[joethenuts]

mr beard  who owns the parcel   the seller sent the parcel in a letter thru his own courier aus-post ,he says aus-post owns the letter-parcel   the buyer did not get the goods 

[tall_bearded01]

Depends purely on who has placed the item at risk.

If the listing expressly says “Note Pickup Allowed” then in the vast majority of cases, the goods are at the seller’s risk, until the buyer actually receive them.  That is because, the risk inherent in delivery by carrier was brought about by a decision made – a contractual obligation imposed on the buyer by the seller.

One the other hand if the seller doesn’t stipulate “No Pickup Allowed”, then as the buyer has the right to choose whether they are going to pick it up, arrange for someone else to pick it up for them, or arrange for the seller to have it delivered to them by carrier, as these are the choices the buyer has made in connection with goods they own, it is they who are at risk once the goods have been handed to the carrier.

The point if you can’t afford to lose it, and if you are in any doubt as to who is at risk whilst the goods are in transit, insure it.

[tall_bearded01]

The buyer owns he goods once paid for.

If the goods are to be sent by carrier, then they remain goods belonging to the buyer currently in the custody of the carrier whilst in transit.

Expecting in cases where the seller expressly stipulates in their listing that ‘Pickup Is Not Allowed” it is the buyer who chooses if the goods are to be delivered by carrier and, unless the listing clearly stipulates that only a specific carrier and specific service is to be used, it is the buyer who selects the service and the carrier to be used, which they can do this one of two ways.  They can select and pay for one of the services offered in the listing, or they can stipulate some other carrier or service, and if they do the latter, as the seller is the buyer’s agent for purposes of delivery to the carrier, they must comply with any and all reasonable instructions made of them by the buyer.

[joethenuts]

in a lot of cases it has free delivery   who owns the product   it does not state free pick up ..

now in this case it has a price of $8 it also has a price of lets say $2 for post parcel  you recieve the invoice cost of goods +cost of delivery  total  $ 10  the buyer then pays  for it  $10.  now the seller posts the order but the buyer says he did not recieve it  ,also it does not state pick up available.  

[tall_bearded01]

Must go now.  

If you require further clarification will be back later this afternoon or tomorrow