reamond
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posted on March 30, 2001 09:19:27 PM
dubyasman's examples are a case thrown out of a puny court and the other case never pursued.
I'll stick with appellate decisions and the UCC thank you.
Bottom line is - if the merchandise to a consumer doesn't show up- business eats it.
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london4
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posted on March 30, 2001 09:23:06 PM
If you don't purchase insurance or at the very least, delivery confirmation, how do you prove you sent the item? If I'm the buyer and I don't receive the item, I sure want some proof that the seller didn't just pocket my money. I think sellers should add the cost of insurance or del. confirmation into the shipping charges. If a seller says that they're not responsible and the item never arrives, I'd be very suspicious as to whether it was actually sent.
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mrpotatoheadd
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posted on March 30, 2001 09:26:27 PM
. Big changes are coming soon to a courthouse near you, and a lot of sellers are going to be very surprised.
As will a lot of buyers, when they realize that added shipping expenses for the seller = higher prices for the buyer.
The final value of the item is the price of the item as it sits on my desk, and you are free to arrange with me to either pick it up yourself or contract with a delivery service to pick it up on your behalf. You want me to arrange delivery for you? That will cost extra. There is no free lunch.
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dubyasdaman
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posted on March 30, 2001 09:30:13 PM
reamond:
Do you know of ANYONE who has lost a case when he/she had proof of shipment and the buyer refused insurance? I seriously doubt it. I, on the other hand, have personally won such a case in court. Your mis-information is just that.
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dubyasdaman
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posted on March 30, 2001 09:32:38 PM
I'll stick with appellate decisions and the UCC thank you.
And what appellate decisions would those happen to be?
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dubyasdaman
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posted on March 30, 2001 09:35:53 PM
london4:
That is why I use delivery confirmation for every item that I ship over valued over $20.
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stamper3
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posted on March 30, 2001 10:21:04 PM
Furkidmom,
Reading this post and I have related question, but along a different line. You said that if you take the item to the PO for an insurance claim, they keep the item. Is this always true? I am in a situation right now, that is not the sellers fault. I won some excellent vintage McCall's magazines at not a small amount of money. They arrived the other day and I accepted them from the postman. They were insured and had CD. I signed and he left. After I took them inside, I realized there was something sticky on the box and that there was some damaged to the corner of the box where it was sticky. When I opened it, whatever it is, had penetrated the box and there was a small hole in the plastic that the magazines were wrapped in. Thus part of this sticky substance had gotten on part of the magazines. I have contacted the seller and I am going to take them to the PO, but now I am afraid that they will take the whole package. I want to salvedge what I can.
So my question is, is it all or nothing? Do they do partial settlements?
The cost was over $80.00 and I haven't opened the plastic to see the extent of damage or which ones are involved. There is one of them in particular that I don't want to lose, particularly if it isn't damaged.
I would appreciate any input.
Thanks,
Anne
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reamond
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posted on March 31, 2001 12:20:01 AM
dubyasman is confusing an item not getting to the buyer and the buyer denying receiving the item. Must be some of that Texas Bush logic.
If you have delivery confirmation, then how is the buyer denying receiving the item ? You have proof of delivery so the issue is moot.
It would appear that the issues in your "court cases" were whether or not the buyer received the items, and you had proof they did.
The issue in this thread is a buyer actually not receiving the item.
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mcbrunnhilde
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posted on March 31, 2001 01:04:19 AM
Stamper3, I had to do a PO claim for some broken china. They only confiscated the broken pieces (the ones I was claiming the insurance for) and I kept the others. What a nightmare, though! I don't envy you having to go through it, but at least you'll get compensation for what was damaged.
Without eBay, I might have a real life... 
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kittykittykitty
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posted on March 31, 2001 01:16:15 AM
i'm still less than clear on the actual laws, but dubya, i'm with you on this.
as a buyer, most of the time i've been offered insurance, and declined except in the few instances of the items being worth more than i was willing to take the chance on losing. the feedback on the sellers was good to excellent. my expectation was that the sellers would in good faith pack the item well, and pay for it - on my behalf, since i was paying for shipping - to be shipped by the usps. i was actually paying the usps to deliver it to me, not the seller. if the item got lost, and i refused insurance, it was not the seller's fault: i accepted the risk, the usps did not provide the service for which i paid it.
as a seller, i've always offered insurance, and assumed the same as above on the part of my buyers.
kitty
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stamper3
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posted on March 31, 2001 01:33:21 AM
Thanks mcbrunnhilde! That at least makes me feel a little better. One of the magazines has the first Betsy McCall paper doll and I am praying that it is OK. The other's are fairly easily replaceable, but that one is a toughie. Thanks again for your help and have a great weekend!
Anne
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dubyasdaman
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posted on March 31, 2001 04:03:32 AM
If you have delivery confirmation, then how is the buyer denying receiving the item ? You have proof of delivery so the issue is moot.
It would appear that the issues in your "court cases" were whether or not the buyer received the items, and you had proof they did.
Incorrect once again (at least you're consistent).
Delivery confirmation DOES NOT prove that the item was delivered to the buyer. Not even close. But it does indeed prove that the item was shipped.
[ edited by dubyasdaman on Mar 31, 2001 04:07 AM ]
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paintpower
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posted on March 31, 2001 04:21:41 AM
What would happen if you sent the package with a Delivery Confirmation and marked the package HOLD FOR PICKUP. Would that not force the buyer to go to the post office and the postal clerk would actually hand the package over to the buyer? One thing with a DC, it does show that the package made it to the buyer's post office. The question still being: was it in one piece, was it damaged and did the carrier actually deliver it? There does seem to be quite a large number of lost and damaged packages lately and a lot of buyers demanding refunds or replacements. Another question - if the seller is responsible for filing the claim how does the seller get the item to show the post office? Certainly would not want to risk sending it back through the mail again!!
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kudzurose
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posted on March 31, 2001 04:43:28 AM
I have not had a package lost or damaged yet, after sending out about a thousand. I pack VERY carefully, and ALWAYS include the buyer's address inside the package.
I require insurance on anything I can't afford to eat, but I also state in my TOS and EOA email that I "do not refund for uninsured items lost in transit".
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Meya
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posted on March 31, 2001 05:57:25 AM
I am jumping in here, and haven't read each post, so forgive me if I repeat someone or am totally off the mark
London asked how you prove you shipped something if you don't have an insurance or dc slip.
When you go through the post office to ship now, you should get a print out of the packages you shipped. On that print out is the list of Cities you've shipped to. Of course, that isn't hard proof that you mailed the correct item, but it is proof you sent a package to that city. The amount of the postage is also printed on that slip.
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paintpower
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posted on March 31, 2001 06:27:49 AM
Oh how I wish my post office could give me a slip detailing all I sent that day. However they are still using an old spring scale to weigh packages and sticking on stamps. I made up a form that I fill in with information on all the packages I'm sending that day but it is not Post Office official. Wonder if I could get them to date stamp it with their little rubber stamp? Would that be proof of mailing?
Another question? There was mention above of some new shipping guidelines coming down. When? What?
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stormsail
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posted on March 31, 2001 07:40:25 AM
I'm not convinced Delivery Confirmation proves conclusively that an item was shipped. It may not even prove that an item was presented at the post office.
Many people print their own Del Con stickers. Sellers do this for convenience and because they save the 40-cent fee (the Postal Service does not charge for customer-printed Del Con labels on Priority Mail parcels). Also, parcels with customer-printed Del Con labels do not have to be presented at the post office, so they don't get the official stamp.
Del Con's lack of credibility is well known. Time-sensitive items such as financial documents and legal papers require a Certificate of Mailing, which can be purchased at the PO, but it costs more than Del Con.
I have had packages with Del Con that arrived without ever being scanned at all, and I'm aware of parcels that were scanned but never arrived. Route carriers in my area don't have hand scanners, so the most I can hope to know is whether the Postal Service thinks my package made it to my local PO or not.
The Postal Service even puts a disclaimer on Del Con that it is not to be used as a tracking tool. Services such as Signature Confirmation and Certificate of Mailing are foolproof and make Del Con look flaky by comparison.
I think sellers who substitute Del Con for insurance or proof of mailing are taking a risk. Personally, I would rather pay for insurance than spend time and money as a perennial defendant attempting to justify nondelivery of my merchandise in court.
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paintpower
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posted on March 31, 2001 07:47:54 AM
So, with the statement that Delivery Confirmations are not worth the paper they are written on, this brings us right back to the fact that if sellers want to protect themselves they either need to include insurance in all shipping quotes or be prepared to pay for it out of their pocket. I just had another buyer (another newbie) buy over $130 worth of books, being shipped by Media Mail and opted for no insurance. Again I will probably be paying for this out of my own money to protect myself but too many of these begin to eat away at your profits!!
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pcalton
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posted on March 31, 2001 07:53:29 AM
anyone can file fraud charges on anyone, anyone can file lawsuits on anyone, and anyone can leave neg feedback on anyone. I could care less what the UCC thinks, what eBay thinks, what the USPS thinks, or how a bunch of fancy lawyers define FOB or FAS or other big city words.
no insurance paid by buyer gets no refund or replacement if the package or contents are lost, stolen, or damaged. buyers agree to that when they bid and I ain't gonna cover their A** for them. I ain't gonna do it, I ain't, I ain't, I ain't.
If some cry baby fool wants to take me to court because he didn't pay for insurance (this is a no brainer), so be it. And, if the judge has some kind of brain fart and decides in favor of the cheapskate buyer, we have some "what goes around comes around" ways of taking care of that in our "neck of the woods." Just kidding, my uncle is the judge.
pcalton
Perry Calton
[email protected]
http://www.pcalton.com
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virtualwizard
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posted on March 31, 2001 07:54:08 AM
I seldom buy insurance as a seller. If a purchase is over $50.00 I will insure it.
Anything under $50.00 I take my chances. If the buyer seems to be honorable I will split the cost of a replacement.
I chalk it up to the cost of doing business.
Wiz
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dubyasdaman
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posted on March 31, 2001 12:07:34 PM
I'm not convinced Delivery Confirmation proves conclusively that an item was shipped. It may not even prove that an item was presented at the post office.
If the post office stamps the slip and scans it into the system, Delivery Confirmation is 100% proof of shipment. End of story.
[ edited by dubyasdaman on Mar 31, 2001 12:08 PM ]
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ypayretail
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posted on March 31, 2001 12:27:49 PM
DC is not a guarantee of delivery . The post office will tell you the same. The only guarantee of delivery is Express Mail.
Many packages I have purchased using DC have ended up on the neighbor's porch etc.
Just as priority says the item will arrive in 2-3 days, they do not guarantee it. In fact, my last shipment using priority took 7 days.
DC will not hold up in court as proof of delivery as the PO guidelines state that DC is NOT proof of delivery. Any buyer would need to just take that wording to eliminate your insistence that DC is proof of delivery.
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pcalton
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posted on March 31, 2001 12:31:02 PM
delivery confirmation confirms that something was shipped to a specific zip code on a specific date but not exactly what was shipped.
delivery confirmation confirms that a postal worker scanned the package as delivered but does not prove the package was delivered to the correct address.
pcalton
Perry Calton
[email protected]
http://www.pcalton.com
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NanasTurtles
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posted on March 31, 2001 03:13:34 PM
I post within my auctions & invoices that insurance is at the option of the buyer and I will not be responsible if the buyer chooses not to insure. I would stand by this as I keep my postal receipts which is my proof that their package was mailed out. I don't want to be responsible for making decisions that should be left up to the buyer the same way as I don't expect the buyer to make me responsible for decisions that they made or didn't make.
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dubyasdaman
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posted on March 31, 2001 03:51:59 PM
DC will not hold up in court as proof of delivery as the PO guidelines state that DC is NOT proof of delivery.
Proof of delivery isn't neccessary in court. Proof of shipping is. And Delivery Confirmation works perfectly for proof of shipping.
Delivery confirmation confirms that a postal worker scanned the package as delivered but does not prove the package was delivered to the correct address.
Proof of delivery is irrelevant. Proof of SHIPPING along with proof that the buyer refused insurance is all that's required to win in court. I know because I've done it.
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cdnbooks
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posted on March 31, 2001 04:18:48 PM
stormsail
"The new draft of the UCC will be final in May. Among other things, they've added a section for the Prepaying Consumer Buyer. It grants remote purchasers a right to specific remedies when the seller repudiates or fails to deliver."
Boy will that change ever make shipping expensive for the buyer. Ouch.
Do you have an online reference of this proposed change to the UCC?
Thanks
Bill
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ypayretail
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posted on March 31, 2001 07:01:45 PM
Actually proof of delivery is what is required to win a case of fraud against you in court.
Simply saying here is a receipt with zip code xyz and DC with my own writing (not the PO writing) saying I sent it - does not guarantee that the buyer received it.
If your responsibility is to ensure the buyer received it DC does not do it nor would it hold up in court - according to our local prosecutor. Two cases here where monies were taken and according to buyers - the product was never sent out.
I called and presented this discussion and was informed that if the PO states DC is NOT proof of delivery and a buyer can show you cashed a money order or check or accepted a PayPal payment - the buyer can file for fraud. Would it be investigated? Probably only if there were multiple complaints. However, it does show that DC in the court system here would NOT work as you need to have proof of receipt - not shipping. Since DC and your new receipt only says what zip code you shipped to - they are not proof of shipping to Sue at abc street either.
To be legally correct you either use FOB terms or make sure if the item is lost you cover the replacement. The bottom line on ebay though, IMHO, is that you simply cover your butt - by either insurance or working it out with your buyers if the item is lost, including fully refunding some.
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dubyasdaman
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posted on March 31, 2001 07:11:19 PM
ypayretail:
Incorrect. I won a lawsuit armed with a delivery confirmation slip and an email offering insurance to the buyer (he had refused the insurance).
A similar lawsuit was dropped by the plaintiff when her attorney was provided with the same documentation. I can tell you from personal experience that proof of shipment (not delivery) is ALL that's required if you can prove that the buyer refused insurance when offered. Delivery confirmation provides that proof.
I ask again: Do you know of ANYONE who has been found liable in court when he had proof that the item was shipped and the buyer refused insurance? I seriously doubt it.
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bigshack
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posted on March 31, 2001 07:43:04 PM
dubyasdaman is absolutely correct!!!
If insurance is declined, and the seller can prove he shipped the item, then the only recourse is via insurance from the carrier. This is precisely why all sellers should explicitly offer insurance, or just build it into their S&H charge and tell buyers "insurance is included". A buyer MIGHT have a valid claim if the seller did not explicitly offer insurance. The buyer would claim he "assumed" insurance was included, and a judge might listen to that. But when the buyer declines insurance once it has been offerred, it's his enchilada if anything happens in transit, including non-delivery. The arm-chair lawyer who keeps referring to the UCC needs to read it again. He is just plain wrong. I challenge him to cite the statute he claims to base his "case" on. I bet he won't, because HE CAN'T cite something that isn't in there. The UCC is available on the internet in several places - Post the link smarty-boy!
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ypayretail
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posted on March 31, 2001 08:19:33 PM
I guess it just depends on where you live. According to our prosecutor's office they would prosecute as mail order rules and regs state that unless using FOB terms - you are required to make sure the item arrives to the party that purchased it.
Again, they only prosecute with multiple complaints. IMHO - my time is worth more than answering numerous e-mails, going to court to show that I sent it and hoping to win. Too much hassle for us - we include insurance in all sales and then there is no question nor neg on our reputation.
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