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. 

[p9games]

Given the choice between engaging the services of a lawyer and a listing copywriter, I suggest you choose the latter.

Selling an item of this value requires detail and disclosure of any and all flaws.  You didn't do that.

Case closed m'lord

[eol-products]

When I read the title and seen liability mentioned I thought it may be in regard to the products being sold. I do wonder how many sellers think about liability when selling an item especially those who regularly sell. 

[sugar249]

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@eol-products wrote:

 I do wonder how many sellers think about liability when selling an item especially those who regularly sell. 

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I definitely do.

At one point I dabbled with a range of kids soft toys, from a reputable wholesaler,   but quickly stopped it as I realised they had pieces that kids could swallow if they got keen with pulling them apart.  Never had an issue,  but stopped the range.   Now all my goods are checked for potential reasonable hazards.

[eol-products]

I never thought to have it as I would mainly sell new items sourced within Australia but to get a warehouse lease you need public liability insurance. 

[joshawe_7]

You are right. I wasn’t thinking rationally about the situation. It was my lack of diligence that created the situation. If I had checked the item properly and accurately described the item the situation would have been entirely avoided. I was wrong to aim my frustrations at the buyer when it was I who was at fault. 

[joshawe_7]

Thank you everyone. I appreciate the time you have all spent in responding to my post. My initial response to the buyers return request did not have much rational to it. I was annoyed at myself for my lack of diligence and stressed out by the whole thing. Having read your responses and taking onboard the advice given I will endeavour to carry this advice forward and be a lot more mindful of  the buyers perspective.

1) Yes I created the problem not the buyer. Therefor any motivation to return the item stems from my failings not the buyers

2) Yes I would be disappointed if it was me who received the plane in the same circumstances 

3) Yes I should have been fully aware of the rules and policy’s I had agreed to

4) Setting up a returns policy seems far more beneficial that not accepting returns. Especially if you react the way I did….. 

5) Yes this has definitely been a lesson learnt and not a mistake I intend to repeat. 

I have messaged the buyer and apologised for the manner in which I responded to the return request. I have not received a response but I can hardly blame the buyer for not wanting to converse with me. 

I am 42 years old and I have ADHD (diagnosed). I find it very hard to think rationally about a situation when I am stressed. I seem to default to using the fight or flight section of my brain to do my thinking in these circumstances. Which does not offer the best results. I am aware that my thoughts and behaviour are can be a little wonky and it was your responses that helped to reorder my thoughts and realIse my mistake.  

thank you.