Selling, the laws, liability and responsibility

[joshawe_7]

Hi everyone

I recently (we’ll still am) having an issue with a buyer who I believe is abusing the “money back guarantee” that eBay offer. In an effort to clarify where I stand legally I’ve been looking through the eBay user terms and conditions and the Australian legislation. This has given me a couple of questions that I would appreciate others input on, as I may have missed something or miss understood something.   Below are the relevant points of info related to my question. (Some I’ve paraphrased” 

1) In section 7 of the eBay user agreement, trading on eBay and limitation of liability.  It is made very clear that any contract of sale is between the seller and the buyer and that eBay take no responsibility legally or otherwise. 

2) In the same section it is make expressly clear that as a user it is your responsibility no eBay’s to ensure that you are adhering to any relevant laws and as a user it is your responsibility not eBay’s to enforce your legal rights and obligations under those laws. 

3) In section 10 of the eBay user agreement, returns and eBay money back guarantee. It states that a seller can accept or decline a return unless the return meets the requirements of the eBay money back guarantee. 

4) I am not trading as a business on eBay so any sale I make is considered a private sale under Australian law. 

5) Under Australian law consumer guarantees do not apply to private sales. (Other than clear title etc) 

6) When considering what rules or laws apply to any given situation the laws as stated in the relevant governing legislation take president and trump any rules, such as those in a user agreement that contradict these laws. 

So this is my question.

Given that in Australia a private sale between two individuals does not come with any legal guarantee and that according to eBay’s user agreement any contract of sale is  legally binding contract between the seller and the buyer alone. How exactly is the eBay money back guarantee fit into this legally? For a user to agree to offer  a guaranteed return on a private sale contradicts what applies to a private sale in accordance to the Competitions and Consumer Act 2010. I would also like to understand how a user is expected to enforce their legally protected rights as a consumer when it would seem that the eBay user agreement is in place to diminish and seemingly waiver some of those rights. 

I have stated that I do not accept returns. The item in question was delivered to the buyer on the 18/7. On the 25/7 the buyer wants to return the item claiming the return under the eBay money back guarantee. Which offers me no option to decline. Two days after the auction ended the buyer disclosed that they currently did not have the funds available to pay for the item and expected me to wait until he had the funds available. I was not willing to do so and reminded him he is required to make the payment within four days of the completion of the auction. If payment was not make I would be cancelling the sale in accordance the relevant eBay rules. The buyer informed me he had borrowed the money and had paid for the items, which was the case and the item was sent.

The item In question is a very rare hand plane only manufactured between 1909 and 1943 so it’s somewhere between 113 to 79 years old. It is well documented that these particular planes have a weakness in how the frog is attached to the body and it is estimated that approximately 30% of all these planes have been damaged due to this inherent weakness.  The plane I sold had been repaired as it had suffered damage to to the same weakness. The repair did not effect the planes usability. There was also a crack in the lever cap of the plane. The crack in the lever cap is clearly visible in the listing photos, the repair is not due to its position. My description of the plane was simply “in great condition with original japanning” as even considering the repair it was perfectly usable and due to its rarity “great condition” i do not believe to be inaccurate.  It is also completely subjective as to what one would consider “great condition”  prior to the sale of my plane the last plane of this type sold on eBay for around $1700 AUD there is currently one for sale with a starting price of around $2000 AUD. Mine sold for $1250 and whilst iI was happy with this amount I believe that all things considered the price paid is under market value for the item. 

The buyer is claiming, after a week or receiving the item that it does not match my description of being in “great condition” and has requested I refund $500 or give a full refund on the return of the item. I am of the firm belief that the buyer has simply decided they cannot afford the item as this was apparent from the start. I have said to the buyer I am more than happy to replace the lever cap but I will not be accepting a return. Although it appears that is exactly what eBay are trying to force me into doing. 

I would argue that as the user agreement contradicts Australian consumer laws by forcing a seller to guarantee the buyers money back, where no such legal guarantee exists. The eBay money back guarantee is in breach of Australian consumer law, and as eBay state as a user it is my responsibility to enforce my legal rights any agreement to section 10 of the eBay user guide cannot and should not be allowed to be enforceable. 

I welcome any input, thoughts and constructive criticism on this matter. 

[joshawe_7]

I wasn’t aware of the repair when I made the listing. I had not removed the frog so the repair wasn’t visible. I should have checked. Whilst this was an oversight on my part. The repair wouldn’t have effected the usability of the plane or decreased its value. I realise this doesn’t take away from me not checking for and listing any defects it had. I’ve accepted the return. I hope I actually receive the item back.

[gutterpunkz05]

You need to resolve the issue with the buyer, while you still can.  It is up to you to resolve it to the buyers satisfaction and they are under no obligation to accept anything less than a full refund.

If ebay is required to resolve the matter you will still be liable for ebays FVF plus a $22 dispute resolution fee and you  may or may not get the item back.

When a buyer indicates they are unable to, or do not wish to complete the purchase, it really is best just to cancel , then you don't even lose the initial postage cost.

[springyzone]

Forget all the legal jargon, for a sale of $1250, the legal costs would not be worth it.

Not that I think $1250 is peanuts, quite the contrary, but legal fees are eye watering.

Your main mistake here was to push through with the sale. When he contacted you to ask you to wait as he didn't have funds, you would have been better off to cancel the sale immediately and then send him a message to say you understood he wasn't in a position to pay so you had cancelled the sale as payment was expected within 4 days.

The trouble is, this purchase has been a major one for your buyer. He actually had to borrow to pay for it.

Then it arrived and he found it had faults not mentioned.

You have to keep in mind that items on ebay are not seen in person till after they have been paid for and arrive. So description and photos are everything.

You say something is a 'well documented fact'. Your buyer may not know that. And even if he did, unless it is mentioned, he would have no cause to think this plane wasn't amongst the 70% that don't have the fault. Fair enough that maybe you didn't realise it had repairs to this fault, but you can't expect a buyer to be happy to receive something with faults not mentioned.

You should also have described the crack, even if you think the photo was 'enough'.

What the buyer is saying to you is he would not have put himself out on a limb financially had he known the true state of the item. He would not have paid that amount. You may think it was a bargain price but that is a subjective view. It is his truth that he would not have paid over $1000 for it had he known. It doesn't mean either of you is 'wrong', it is just that you have different opinions.

And yes, the fact he is financially strapped may be contributing to his wish for a refund because of his disappointment. 

But best to just get it over with and offer a refund.

[repentatleisure1952]

Hi springy.

See message# 12.

[countessalmirena]

@joshawe_7

You’ve done the right thing in accepting the return. You’ve avoided the consequence of eBay stepping in (rarely a good outcome for sellers) and you’ll get back the item.

Fron what you’ve said, this is a desirable plane and you shouldn’t have any problem in relisting and selling. When you do relist, have closeups of each section and scrupulously describe everything. It may seem counterintuitive, but something that clearly states each flaw in careful and clear language often gets a better price than the same item described more vaguely and without mentioning even the tiniest of flaws.

[*sons_n_daughters*]

If the buyer has opened a dispute, make sure you create a postage label through ebay and send it to them. Ensure you upload the tracking details into the dispute. If the buyer chooses not to use the label, and doesn't send the item back, they shouldn't get a refund (I say shouldn't, because ebay are unpredictable and change the goal posts every other day).

[repentatleisure1952]

Whoops.... message# 13.

[imastawka]

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@repentatleisure1952 wrote:

Whoops.... message# 13.

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What are you on?

D'ya mean message #11?

Otherwise you're telling Springy to read her own post

[countessalmirena]

Message x375b(ii)!!!!!!!!

[davewil1964]

According to my feed, message 13 was by the OP.

The one where they admitted they had accepted the return, and that their description was less than ideal.