posted on March 8, 2001 08:04:05 PM new
mrpotatoheadd:
That wouldn't happen to me. I always pay with PayPal or Billpoint so I have proof. If I did pay by mail I would make it a point to keep in contact with the seller to make sure that he/she either received the payment or allowed me to send another one. Buyers as well as sellers have a responsibility to work together to ensure a satisfactory transaction.
posted on March 8, 2001 08:23:52 PM new
According to the UCC (Uniform Commercial Code), once the seller has shipped the goods by any means, including common carrier (USPS, etc.) the goods now technically belong to the buyer. Any risk of loss would also be the responsibility of the buyer. This is a very general application of the UCC, meant for dealings between merchants and buyer. When considering the variables when dealing with online auctions, the definitions are broad enough so that a court can pretty much look at all the facts and it could really go either way (responsiblity: buyer or seller).
There are various different types of contracts which apply to the transfer of goods between seller and buyer and while some place the burden of seeing that the product is delivered upon the seller, still others place it upon the buyer.
Without doing some serious research into case law, there is no way of knowing how the law is applied to ebay and other online auction transactions.
Another important issue to consider is whether the seller is considered a "merchant" or a "seller" under the law. There is a significant difference in how the law would be applied.
posted on March 8, 2001 08:53:37 PM new
Sellers might want to consider that this everlasting debate about insurance is one reason why there aren't more bidders on ebay. It is so much easier and safer to buy from Amazon.com or one of the other online merchants. Yes, the shipping price might be a bit higher on occasion, but when buying from them, buyers can relax, knowing they will receive their item.
It is the responsibility of the seller to get the item to the buyer, period. If you're selling a low ticket item, you may want to consider self insurance, if not, charge the buyer the extra $1.10 and make it non-negotiable and include it in the shipping price.
posted on March 9, 2001 06:01:03 AM new
Goodmorning!
Greg..I agree with what you are saying, and
citygirl...you were very helpfull in you response.....But I still feel that once I put my package in the hands of the post office it is there responsibilty to deliver to my buyer and that is why the Post office offers INSURANCE.. so if they loose or damage it they would be responsible,
My responsibility is to package the item the best and safest way for shipping, and to deliver it to the post office and now that it is not in my hands anylonger, what do you want me to do?
I received payment for goods that I DID supply and I did ship (I am not making this delivery personally to your home so how would I be held responsible for something I have no controll over after it leaves my hands.
I purchase also on ebay and I would not hold a seller liable if they could show me there postal receipt for the shipping of my item.(that is if I didn't take out insurance) but I would always take ins. it is cheap enough
for the protection it offers.
And to ans the question.. Why don't the seller take out the ins. to protect themself?...Yes, I would take out ins. if the item was a large ticket price and my buyer didn't want to take ins.
It is just my opion and how I feel/
It is Still A Goodmorning!!!!!
posted on March 9, 2001 06:20:04 AM newtonimar: I agree with you 100%.
I live in NY - where every county is a different tax rate. My accountant explained to me that the tax rate I have to charge (to other NY residents) depends on WHERE the package is being shipped to in NY. Why? Because once I drop off the package at the post office, it becomes the BUYER'S item and they have to pay sales tax based on where the item is being delivered to.
So if it's the BUYER'S item once I drop it off at the post office, it is no longer the SELLER'S responsibility when it is in the hands of the postal service. The seller's responsibility ends when we hand it over to the post office clerk.
We cannot control how the package will get handled once we ship the item. THAT IS WHAT INSURANCE IS FOR.
As a buyer, I would never expect another SELLER to be responsible for a package that was lost or damaged through the post office. If I paid for insurance, I would take it up with the post office. If I DECLINED insurance, I would blame myself and no one else.
posted on March 9, 2001 06:39:35 AM new
ExecutiveGirl....It's nice to know that I am not alone in my thinking, I though I was the only one thinking this way.
"it's nice to know someone else thinks the same way I do." Now, to convience the REST...
I'm from New York also, in Nassau County
posted on March 9, 2001 07:02:31 AM new
It is the buyer responsibility to get payment into the seller's hands, by law, PERIOD!
( I, like many others, do not believe the "check's in the mail." )
It is the seller's responsibility to get the package into the previously agreed upon destination, by law, PERIOD!
(It is not the seller's duty to follow you all over the country because you decided the delivery date was a good day to start your freakin' vacation to Bali!)
BY LAW, the default destination is the ship FROM point(FOB) UNLESS other arrangements are negotiated, PERIOD!
(Seller's have no pull with the USPS, UPS or FedEx.)
END OF DISSCUSSION
[ edited by mark090 on Mar 9, 2001 07:03 AM ]
posted on March 9, 2001 09:06:19 AM new
Buyer pays for insurance. Buyer is covered in event of loss or damage. Buyer decides to save $1.10, buyer takes his chances.
The seller's responsibility ends when the package is accepted at the post office. I know this to be a fact because I have been involved with several cases of this type. I was even taken to court once over this once. The buyer claimed fraud (merchandise not delivered). I provided the court with the postal receipt and the delivery confirmation slip along with a printout of the USPS page showing the item was delivered to the buyer's zip code. I also provided a copy of the EOA email that I had sent offering insurance to the buyer. The judge dismissed the case after about 10 minutes of testimony.
posted on March 9, 2001 09:10:54 AM new
Mark090...you said "BY LAW, the default destination is the ship FROM point(FOB) UNLESS other arrangements are negotiated, PERIOD!"
My aging brain is very befuddled this morning and I'm not sure I'm interpreting correctly what your saying.
Are you saying....unless otherwise agreed upon by the buyer and seller, the law says the title to the merchandise passes to the buyer at the point the seller delivers the item to a common carrier (FOB) and that it is the responsibility of the buyer to insure the item against loss or damage because he is responsible for the item once it is in the hands of the common carrier. In other words, the law says that once the seller delivers the item to the common carrier it is as if he has delivered it into the buyers hands?
posted on March 9, 2001 01:32:11 PM new
This buyer responsible/seller responsible stuff has been rehashed before with the UCC.
The seller is not held liable ONLY if delivery to a specific address is not required as part of the contract.
For example, buyer specifies pickup by truck of goods at a known location, such as a trucking warehouse. If the seller drops it off at the warehouse successfully, they are not held liable should the warehouse burn down, go out of business, etc.
HOWEVER, I have never heard of an ebay purchase that doesn't require delivery to a specific address. When I buy something, the seller must send it to the address I PROVIDE. If the package is sent, for example, to the wrong address the sender isn't off the hook.
Also, the seller picks the common carrier. You might have some ground to stand on if the buyer contracted for the common carrier, i.e., the buyer could choose which service, UPS, USPS, courier, carrier pigeon, whatever.
Sellers who offer the choice to decline insurance are ultimately cheating themselves. You still are responsible! If insurance is so important to you as a seller, buy it yourself and include it in shipping and handling. Mandatory. No room for discussion.
[ edited by yankee98champs on Mar 9, 2001 01:33 PM ]
posted on March 9, 2001 01:54:29 PM new
"When sellers can give me a good reason to purchase insurance (other then covering their butt), I will think about it. Until then, it is the sellers responsibility to get the package to me, with or without nsurance."
Hi Greg,
I think a good reason is in the TOS. If you bid on an auction that clearly states that insurance is optional and if the buyer chooses not to insure, the seller isn't responsible, then you've agreed to the seller's TOS.
Seller's seemed to be damned either way. If we try to keep shipping low by offering the alternative/choice of insurance, we're only "covering our own butts." If we state, "shipping is $X which includes shipping, insurance and delivery confirmation," we get hassled for exorbitant shipping.
When I buy, I comply with the seller's TOS. If I don't like their terms, I go elsewhere.
posted on March 9, 2001 01:55:05 PM new
I had these same problems when I started mail order years ago, and I went to a lawyer to find out the truth.
1. Seller is NOT responsible for a uninsured package once it has been shipped if the buyer had the option to purchase insurance and declined(most mail order companies add the cost with shipping).
2. The only way the buyer can be responsible for sending payment to seller is if a contract was signed and goods were sent unpaid(Like a magazine will bill you after the first episodes arrive). We cant force customers to send payments for items they won on eBay since they havent received the merchandise.
3. For all the people that claims seller is responsible please show me one case that made it to court.
posted on March 9, 2001 02:21:32 PM newBuyer to pay $xx.xx for S&H. Insurance is 60¢ per $100 value. Insurance is optional, but highly recommended and covers loss of item or damage to item. If buyer declines insurance, seller will not be held responsible if item is lost or damaged in the mail.
That's up front too. Nothing wrong with that either.
posted on March 9, 2001 02:24:53 PM new
Chum....I agree with you 100%
and Greg....
One good reason is...if you bought from me and didn't take out insurance, you would not
receive a refund (from me anyway)
Why is it so hard to understand that by taking insurance you not only cover a lose.
you are coveing and item if it gets damaged in transit. The little amount of money it costs for ins. out weights the problems that could arise between the buyer and seller. Why not have a nice smooth transaction so both could receive positive feedback.
posted on March 9, 2001 02:28:50 PM newBY LAW, the default destination is the ship FROM point(FOB) UNLESS other arrangements are negotiated, PERIOD! Seller's have no pull with the USPS, UPS or FedEx.)
This is simply false.
Seller is responsible to deliver the stuff to the the buyer.
Seller can contract with a delivery service, such as USPS, etc, to carry out such responsibility, but that contract exists between the seller (who pays the delivery service) and the delivery service.
Seller's "pull" is total, in that regard. Seller hires and fires the delivery service as seller sees fit.
FOB contracts are special, and they indeed can come to exist on eBay. The way to do that is to specify, in the auction, "stuff to be picked up at <address>, I will not ship". In such a circumstance, BUYER contracts with a shipping company, and delivery to buyer is made to BUYER's agent, the shipping company. Buyer hires and fires the delivery service at will, and seller is not responsible for buyer's decision.
posted on March 9, 2001 02:41:32 PM new
So why can't seller specify in the auction that buyer is resonsible if buyer chooses to avoid insurance? Isn't that "up front" too?
Yes, in some sense, it is.
The part left out of most eBay transactions is getting the agreement of buyer. Posting in the auction is not "buyer's agreement", not even close.
Similarly, an end-of-auction email from seller restating this condition is not buyer's agreement, even when buyer responds.
The very minimum would be an email from buyer, explicitly agreeing to accept shipment responsibility.
Beyond that, buyer in most cases would have a good case that the contract was unfair because buyer was inexperienced compared to seller, that buyer didn't realize that buyer was waiving an important right under standard contract law, and that buyer received nothing in exchange for such value.
As has been pointed out, a formal lawsuit over a $10 used CD isn't likely, and thus this analysis wouldn't likely arise, but those are the legal forces behind why real mail order companies don't play this kind of game with their customers. They would almost certainly become targets of class action lawsuits.
posted on March 9, 2001 02:57:25 PM new
O.K. call me dumb.....if I as a seller ship wigdet "A", value $99 bucks. I am the one who purchases the insurance for $99 bucks even if the buyer gives me the money for it. If the buyer then doesn't get the item wouldn't I be the one to file the claim at the post office? if so, I really don't see why I wouldn't ship the buyer another wigdet "A" or a refund since I would file the claim and get the $99? I know this is the way UPS works because I had a situation where I didn't recieve my package and was told the SHIPPER had to file the claim. Does the USPS work differently?
posted on March 9, 2001 03:32:13 PM new
Merchants are held to a higher standard than consumers for various reasons.
As a buyer, always purchase with a credit card. Regardless of TOS or any agreement, if the goods don't arrive or arrive damaged, you can chargeback. The credit card terms supercede any other terms.
posted on March 9, 2001 04:47:46 PM newDoes the USPS work differently?
A little, but it's irrelevant to the formal legal analysis.
Formal responsibility aside, it is good to get buyer involved in the insurance process, because a significant percentage of lost packages are not found until buyer really looks. Getting buyer to formally declare that the package was never received,in writing, has a way of finding packages.
All shipper's insurance expects buyer to participate at least to this level.
This is perhaps the most important reason for seller to purchase insurance.
posted on March 9, 2001 04:48:27 PM new
I have yet to see even ONE seller that states it is buyer responsibility if they refuse to purchase insurance on an item, agree to purchase insurance on the buyer's payment.
My common sense, tells me that it is my responsible as a buyer to get the payment to the seller. If I have to buy insurance or certified mail to get it there, then I should.
On the other hand, my common sense, tells me that it is the sellers resposibility to get the item to the buyer. If the seller has to purchase insurance or delivery receipt, then the SELLER should.
Since the seller has already received payment, seems like they now have some kind of responsibility to do everything possible to get the item to the buyer.
As to the "Good" reason given here - Stated in the TOS and No refund would be given - I have to ask, why do you put this in your TOS unless you think the buyer will have a different expectation.
Greg
P.S. Sellers, please be aware, these are the kind of things I think about BEFORE I bid on anything. Once I win and item, I follow the TOS as stated in the auction. I bid, which means I accept the TOS. I don't always think the TOS is fair, but if I want the item...
posted on March 9, 2001 05:07:36 PM new
What a lot of circular arguments. Sellers and buyers have responsiblities. Sellers get into trouble when they do not completely explain in their description how payment is to be made, what the buyer is paying for, and how shipment is to be made. I ship everything, everything, by USPS Priority Mail. The buyer pays insurance. I do the best I can to guesstimate the shipping cost, not to forget that I have to pay for bubble wrap and packing materials. Sometimes I win a penny, sometimes, as in a transaction the other day, I lost $1.45. I do not go back to the buyer and say, oh my goodness, I made a mistake, you gotta ante up more. doesn't work. I told the buyer the cost of shipping and insurance in the description. They want to bid on the object, they have to pay that as part of the deal. I keep records. I don't normally take personal checks, unless specifically asked, then I keep a copy of the email with the request and my answer; when I get the check, I make a copy for my records, easy with a scanner. I don't send the item til the check clears, that is in the agreement to accept a personal check. I keep my copy of the insurance receipt, taped to my copy of the end of auction statement, something broke or lost, I quickly fill out the insurance paper that the buyer initiates at their local PO, they get their money, including shipping cost, less the stamp on the envelope and the insurance cost. I have had several 'winners' be slow to pay, some actually have a reasonable excuse. If I get my money, they get their goods, I give + feedback. This crap about Negging just because someone is slow is just that. I follow the rules set by ebay. 7 days, I tell ebay, 10days later, I file FVF. I don't cheat, I don't lie. You back out on a deal you get negged. I work with my buyers. I have had only two that did not follow through - they both got negged and I did file a FVF. NO problem. I had a lady write me a bad check. She sent the money by MO and paid the bad check fee - I'm happy, she got the goods, she got + feedback. Why get ulcers. Be positive, do your part. enjoy. rd
posted on March 9, 2001 05:13:39 PM newOnce I win and item, I follow the TOS as stated in the auction.
A TOS is in effect an offer to enter a contract on the stated terms, and a bid is similarly an agreement to enter a contract on the terms as understood by buyer.
But, eBay's claim notwithstanding, no important contract arises from the existence of the TOS and the winning bid. A more important ("more real" ) contract comes when buyer agrees to send the money, and seller agrees to send the stuff to the address which buyer has specified. Once seller accepts payment, seller has entered a very strong contract requiring delivery of the stuff to the address specified by buyer.
However, at the end of the auction,loose ends exist, and either buyer or seller may decline to agree to each other's requests. Seller may explain something which buyer was confused about, and buyer may find the explained contract unacceptable. Buyer may assert a request for buyer's understanding of the contract, and seller may decline to accept buyer's requirements. In such a case, no contract has come to exist. Or, most concisely, no enforceable contract.
With regards to sellers who publicly declare their intent to be irresponsible, I do become concerned, and I am reluctant to bid, but sometimes I do anyway. No such seller has actually ever required me to agree to accept shipment responsibility, I've never volunteered such agreement, and, luckily, I've never had anything get lost forever in the mail.
posted on March 9, 2001 06:29:08 PM newSimilarly, an end-of-auction email from seller restating this condition is not buyer's agreement, even when buyer responds.
I know of at least one judge who would disagree with this statement since he dismissed the case almost immediately.
