@1688store

I realise what you mean; it sounds as though you've probably had experience of items which the buyers say never arrived - and because those items were sent by some untracked means, you simply had to wear the loss (giving either a refund or a replacement).

I can see your dilemma. It does seem unfair that a seller should be responsible for any error or failure on the part of the delivery service. After all, in terms of law in Victoria (I'm referring to Victoria as it's the state in which I live), the Goods Act 1958 addresses the limit of responsibility of the seller when it comes to distance selling and the use of carriers.

39    Delivery to carrier
(1)    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.
(2)    Unless otherwise authorized 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.

So, strictly speaking, according to the legislation, the seller's legal obligation ends with delivering the goods to the carrier - as long as the contract with the carrier (the method of delivery, the issue of insurance or cover or tracking, etc.) is reasonable in terms of the sort of item purchased, and whatever circumstances are relevant for that particular purchase. (Unless the buyer specifically declines a reasonable/appropriate method of postage, or the buyer requests a reasonable method of postage which the seller doesn't use.) Of course, the seller may still find him/herself having to defend an action in court if the goods are lost - and presumably that would only happen if the goods are of a significant cost, otherwise it's very unlikely that the average purchaser would go to the trouble and expense of such action.

But none of that is the point insofar as eBay is concerned. eBay has its own policies, to which members explicitly agree. Those user agreements (which so few of us actually read, true?) are periodically revised and re-sent, and members must tick the "agree" box before they're able to proceed and use eBay.

It might be annoying for sellers, but unfortunately that's the situation - that part of the eBay user agreement includes eBay reserving the right to refund buyers who claim that an item hasn't arrived, and eBay will reimburse themselves from the seller. As you can read on the relevant page, "You'll have to reimburse eBay if we refund one of your buyers under eBay Money Back Guarantee, unless you provide proof that the item was in fact delivered as described. This reimbursement will be debited from your PayPal account, or charged to your monthly selling invoice."

The only proof eBay will accept as proof that the item was delivered is "online tracking information that shows:

• The delivery status of the item as delivered
• The date of delivery (proving it was sent within the promised handling time)
• The delivery address, which must match the buyer's address as shown on either the Order Details page or the PayPal's Transaction Details page
• Proof of the recipient's signature on delivery (for items valued at $750 or more)."

Sellers clearly need to protect themselves in some way. For items of high value, it would be madness to send it to an eBay purchaser without using a postage method that is fully tracked, with signature required when appropriate, and by a method that is as secure as you can manage - because it's the delivery status that matters, not just proof that the item was posted. In my opinion there's no reason for a seller to absorb the cost (or full cost) of such postage for those high-value items, and I think most buyers would not find it unusual to pay for the appropriate postage method. (I certainly don't. I might wince at some postage costs, but I'd rather have my items get to me in the safest possible way.) But on the other hand, if the seller is offering free postage, the profit margin must be high enough for the seller to absorb the cost of fully tracked and covered postage. I think it would also be wise for sellers to add the appropriate insurance cover, in the event of the item being sent but not arriving (according to the tracked status) - because eBay will reimburse the buyer in that case, and it's the seller who will be out of pocket unless the appropriate insurance cover has been added.

For low-value items, I know that sellers may not be able to justify the cost of fully tracked postage. Offering low-cost postage (or even free postage) may be the only way to generate sales. In that case, an effective way of covering the inevitable percentage of missing items/items that never arrive/items that the buyers say never arrived would be calculate that percentage, work out what it costs on average per hundred items or so to cover the losses, and from that, increase either the item price or the postage price (just slightly will be all that's needed) so that the total increase over those hundred sales is enough to form your own "insurance cover" from which you can cover your losses. I believe that's what sellers call "self-insurance".

It might sting to let the occasional buyer get away with a false claim of non-arrival; it is, after all, blatant theft. But you're never going to be able to change human nature. There will always be the occasional person who doesn't let their conscience prevent them from stealing. Because you can't change it, it's not something that (in my opinion) ought to be something that you allow to gnaw ceaselessly at you as either a seller or a human being.

From what I understand, sellers who send by an untracked method (or who send by a tracked method but can see that the tracking doesn't show delivery) - if informed by their buyer that the item hasn't arrived - have one best recourse... and that's to refund before the buyer (or the seller) escalates the claim by asking eBay to step in. (I think I'm correct in saying that eBay's stepping in earns sellers a defect.)

Of course, if you were making it an issue of principle, I suppose you could challenge eBay's automatic refund by taking them on legally, demonstrating proof of delivery to the carrier, and asserting that eBay had no right to charge you for their reimbursement to the buyer. If ever this got to court, it would be Australian law that informed the outcome - and I don't really like eBay's chances of standing on the user agreement when it seems to demand that its users contract themselves out of their legal rights (and it may be argued that sellers have a legal right not to be obliged to cover the cost of a purchased item lost in transit). That is complicated contract law, though - there may be unfair contract terms in the user agreement, but it would cost a great deal of money, a very good lawyer, and a lot of determination to pursue it. That is why sellers look for ways that are easier to implement and maintain to avoid incurring damaging losses under eBay's terms.

(It's not fair; it might not stand up in court; but court is almost certainly not a viable option. Don't forget, too, that if the contract between you and eBay is considered void after a court battle, eBay would certainly then remove you as a seller, buyer, member, anything. They do have the right to ban members for whatever reason they wish, and that would be something that I believe you couldn't fight.)