eBay Auctions & Consumer Guarantee

[thecatspjs]

I noticed on another recent thread (on another topic) that board posters were indicating that goods purchased through eBay auctions were not covered by the same consumer guarantees as buy-it-now goods.

I just wanted to note that according to fair trading information on government websites, this appears not to be the case and that buyers of Australian businesses goods that are purchased through the eBay auction process, are covered by the same consumer guarantees as buy-it-now goods.

Some fair trading website facts that are easily located via google below, (my highlighting)

"Consumer guarantees do not cover goods bought at auction, where the auctioneer acts as an agent for the owner of the goods." 

"eBay sales are not considered to be an auction as eBay does not act as an agent on behalf of the seller. Therefore, eBay sales are covered by the consumer guarantees under the Australian Consumer Law"

[coast_golf · Accepted solution]

The ACL consolidated a number of different statutory instruments including the Trade Practices Act. It was introduced primarily to ensure that, as far as possible, consumer rights and obligations in B2B and B2C transactions were consistent Australia wide.

Each state retains a Sales of Goods Act (or similar). In QLD this can be found at - https://www.legislation.qld.gov.au/LEGISLTN/CURRENT/S/SaleGoodA1896.pdf

Consumer law simply cannot be consolidated into 1 piece of legislation, it would literally be tens of thousands of pages long. The law is complex, and depending on the nature of their business, merchants may have to refer to upwards of a dozen pieces of legislation to ensure that they are compliant with the law. There are Commonwealth, State and Local laws that all must be complied with, the ACL is certainly not a one stop shop and was never intended to be, it was simply a consolidation and simplification of (in the main) existing legislation.

Private sales are naturally less complex but statutory (and common law) protections do still apply obviously. The SoGA's of various states are the primary instruments for C2C transactions.

Very few people like complex legal arguments so I won't get into specifics but suffice to say that IN QLD at least, eBay buyers are protected by the SoGA.

- Sales at auction ARE covered (s59)

- Contracts between private parties are enforceable and remedies may be sought for non performance (ss 29, 50-55)

Nothing in the ACL exempts a private seller from compliance with the provisions of the SoGA. Examining a Commonwealth Act and relying on it to the exclusion to all else is folly. Let's look at criminal offences for example, murder is not an offence under the Crimes Act (Cth) but it most certainly is in every state in Australia.

Just touching on the legal definition of "may not", regardless of any perceived ambiguity I can assure you that the definition relied upon by a court is "must not under any circumstances". Let's suppose I say to you, "you may not drive my car", there can be no doubt that I have prohibited you from performing that action. In a different context may not can also be something less than committal ("I may not be able to attend football training tonight") but as one of the primary purposes of contract law is to remove any ambiguity as far as possible, this situation rarely, if ever arises.

[*crikey*mate* · Accepted solution]

Consumer guarantees
Consumer guarantees —a guide for consumers

Goods bought at auction
Only the consumer guarantees relating to title, undisturbed possession and undisclosed
securities and charges apply to goods purchased at a traditional auction conducted by an
agent of the person selling the goods.

If you sell goods through an online auction website you may be required to abide by the
consumer guarantees, as these websites do not generally act as an agent for the person
selling the goods. (1)

If you take up an option to buy at an online auction site at a fi xed price, you are covered
by the same consumer guarantees that apply to non-auction sales.

The Australian Consumer Law Consumer Guarantees for Goods
The Australian Consumer LawConsumer Guarantees for Goods(includes refunds, replacement and repairs)

Which goods ARE NOT covered

goods bought at auctions where the auctioneer acts as agent for the owner

(1)  "f you sell goods through an online auction website you may be required to abide by the 
consumer guarantees, as these websites do not generally act as an agent for the person 
selling the goods."

[*crikey*mate* · Accepted solution]

Office of Fair Trading - Consumer Guarantees

eBay sales are not considered to be an auction. eBay provides a forum where businesses and individuals can sell goods by the following methods:

• a person can buy a product outright at a fixed price.
• a person can place a bid and, at the end of the allocated time period, the highest bidder secures the goods.

Because eBay does not act as an agent of the seller, eBay is not considered to be an auction by virtue of the definition of 'sale by auction' in the Australian Consumer Law.

[bsal6160]

I should not dip my toe into this thread in fear of the eBay Posting Ninjas coming along and cutting my toes off.

[this-way-up]

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@coast_golf wrote:

The ACL consolidated a number of different statutory instruments including the Trade Practices Act. It was introduced primarily to ensure that, as far as possible, consumer rights and obligations in B2B and B2C transactions were consistent Australia wide.

Each state retains a Sales of Goods Act (or similar). In QLD this can be found at - https://www.legislation.qld.gov.au/LEGISLTN/CURRENT/S/SaleGoodA1896.pdf

Consumer law simply cannot be consolidated into 1 piece of legislation, it would literally be tens of thousands of pages long. The law is complex, and depending on the nature of their business, merchants may have to refer to upwards of a dozen pieces of legislation to ensure that they are compliant with the law. There are Commonwealth, State and Local laws that all must be complied with, the ACL is certainly not a one stop shop and was never intended to be, it was simply a consolidation and simplification of (in the main) existing legislation.

Private sales are naturally less complex but statutory (and common law) protections do still apply obviously. The SoGA's of various states are the primary instruments for C2C transactions.

Very few people like complex legal arguments so I won't get into specifics but suffice to say that IN QLD at least, eBay buyers are protected by the SoGA.

- Sales at auction ARE covered (s59)

- Contracts between private parties are enforceable and remedies may be sought for non performance (ss 29, 50-55)

Nothing in the ACL exempts a private seller from compliance with the provisions of the SoGA. Examining a Commonwealth Act and relying on it to the exclusion to all else is folly. Let's look at criminal offences for example, murder is not an offence under the Crimes Act (Cth) but it most certainly is in every state in Australia.

Just touching on the legal definition of "may not", regardless of any perceived ambiguity I can assure you that the definition relied upon by a court is "must not under any circumstances". Let's suppose I say to you, "you may not drive my car", there can be no doubt that I have prohibited you from performing that action. In a different context may not can also be something less than committal ("I may not be able to attend football training tonight") but as one of the primary purposes of contract law is to remove any ambiguity as far as possible, this situation rarely, if ever arises.

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The Code of Conduct of which Payal states it abides by (and it states that within the User agreement) says that ambiguity is not acceptable !! 🙂

I will run off to Google like a little puppy with a new bone, to check. But I think you will find there is no such thing as the Crimes Act (Cth). I think you will find that the Crimes Act is NSW and the Crimes Code is (Cth)...Because NSW is NOT part of Australia !! But you know that! 

Quote in part - protections do still apply obviously - end quote. Come on mate...I am just starting to get to like you 🙂 You know you cannot use that word in ANY legal argument...."obviously" you cannot use it !

[thecatspjs]

Good on ya coast golf & crickley- for bringing thread back on track & posting IMO information that hopefully sheds further light on some trading furphys and provides valuable information.


thecatspjs aka thecat aka cats

BTW My therapist said I will eventually get over the PJ mistaken identity crisis- but that there may be freudian slips in some of my posts

[coast_golf · Accepted solution]

I'll save you the trouble of Googling 😛

http://www.comlaw.gov.au/Series/C1914A00012

[*crikey*mate* · Accepted solution]

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@coast_golf wrote:

I'll save you the trouble of Googling 😛

http://www.comlaw.gov.au/Series/C1914A00012

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Oh, THAT Crimes Act????

Act No. 12 of 1914 as amended, taking into account amendments up to Statute Law Revision Act 2013

An Act relating to Offences against the Commonwealth

Administered by: Attorney-General's

[this-way-up]

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@coast_golf wrote:

I'll save you the trouble of Googling 😛

http://www.comlaw.gov.au/Series/C1914A00012

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OK...Thanks for that...And I will see ya and raise ya with --

http://www.comlaw.gov.au/Series/C2004A04868

and

http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/

I am almost starting to like you again 🙂

[coast_golf · Accepted solution]

When all is said and done, focussing purely on statute in relation to contract law is ignoring the bigger picture. Gradually contract law is becoming codified but much of contract law is still based in the common law.

I've been reluctant to mention the following for fear of upsetting a number of regulars (one in particular!) who roll their eyes at its very mention. Nevertheless if someone keeps asking me what 2+2 is, I'm not going to answer 5 to throw in a bit of variety.

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWSC/2007/844.html?stem=0&synonyms=0&query=...

In Smythe, the NSWSC ruled on 2 particularly relevant issues that had largely been untested in Australian courts at the time.

1. That eBay is not an auctioneer (as mentioned previously)

2. That a sale on eBay constitutes a valid contract

This was a C2C sale and the Court found in favour of the plaintiff. The Judgement was based almost entirely on the common law with the only legislation cited (with any relevance to the case) was, you guessed it, the Sales of Goods Act.....

Irrespective of the method of sale, auction or otherwise and whether the sale involved a corporation/business/trader/private individual, the common law of contract applies to ALL sales within Australia.

If the contract is not performed (this includes non delivery and misrepresentation), the aim of the arbiter, which is usually a Tribunal or Court, is to restore the wronged party to the same position that they would have been in had the contract been performed as originally agreed. The aim of the ACL and other applicable legislation is to simply codify certain elements of the common law of contract, it is by no means exhaustive and does not claim to be.

Non delivery is pretty clear cut but there are differing levels of misrepresentation which each have specified remedies available to the aggrieved, rescission being one that is common to all levels of misrepresentation.

I won't attempt to give a lecture on contract law (not my area of expertise anyway!) but the following is not in dispute by virtue of the Smythe judgement (and others not cited here).

1. eBay is not an auctioneer.

2. A sale on eBay constitutes a valid contract.

3. A sale between private parties at auction gives rise to potential remedies should the contract not be performed satisfactorily (at common law).

4. The Sales of Goods Act applies to C2C transactions, including those on eBay.

I'm like a dog with a bone when it comes to legal debate but to continue from here would just be repeating myself so I must respectfully bail out. Either yourself or anyone reading this thread can come to their own conclusions. Oh and as for the 2 Acts to which you linked, I'm aware of their existence, was just pointing out that the Crimes Act (Cth) does indeed exist 😉 Best of luck, I enjoyed the sparring.