posted on November 2, 2000 07:28:55 AM new
I think many sellers/buyers have fallen under the spell of eBay's TOS, such as eBay stating bids being contracts. eBay is not a competent court, and I should hope eBay is not offering blanket authoritive legal advice. eBay is not a legal authority unto itself, although it does act that way. But sooner or later eBay will misuse its power against the wrong party and a civil judgement may change the whole game.
What constitutes a "contract" is a legal conclusion, and not what eBay says it is. There presently is no case law or case law regarding specific statutes which may apply to online auctions.
What constitutes offer/acceptance, latent or patent terms, whether the buyer is an "end user"/ consumer or a fellow business all can impact what the situation may be at online auctions. The UCC could not even clearly present trade norms in the pre-computer age.
It is not settled law that an electronic digital signal constitutes a bona fide offer or acceptance without a digital signature or hard copy documents exchanged. It is not certain how to prove a digital signal was initiated by any particular individual without a follow up of hardcopy documents. Most sellers do not even include an invoice with their shipment.
Much of the case law that will come out of online commerce will be through cases regarding civil suits for fraud. However, since the prices realized by the vast majority of online auctions is very small, you will see as much case law come about as you may now find from Flea Markets - little or none.
A seller's TOS may or may not have any force. eBay's TOS will also be shaped by case law. There is a case now moving through the courts to determin what if any liability a "self described" online auction "venue" has reagrding the items sold at its "venue".
Something many buyers do not realize is that there is seldom no delivery terms stated for an item bought at auction, and I'm not talking about shipping costs. If a seller sells you a PC at auction, you pay for it, and 45 days go by and you don't have your PC, what do you do ? When you contact the seller and he/she states that the auction was for PCs delivered 12 or 24 months after payment, then what do you do? The situation now moves from fraud to a dispute of terms of the bargain.
The integrity of email correspondence as evidence without an admission hasn't even been adequately addressed. What if a computer has a back orifice virus or no fire wall installed, which virtually means hundreds or thousands of hackers have had access to the PC - what is the status of the files or electronic signals initiated from the PC ? This becomes almost like holding a person responsible for the contents of a public trash receptacle.
TOS for online auctions have yet to be fully fleshed out.
[ edited by Reamond on Nov 3, 2000 04:58 AM ]
posted on November 2, 2000 09:47:49 AM new
There are sellers with TOS that contradict ebay policy (and state and federal laws too I suspect) directly on their auction listing. Ebay really doesn't specifically and directly control the actual content of listings at all, other than (perhaps) to disallow profanity (assuming their chat-room checker is turned on for listings as well).
I suspect, although I can't show an example, that ebay would respond the same way (if they would respond at all of course) to a report of an "illegal" TOS, whether that TOS was listed on the listing itself or on a linked web site. But who knows for sure?
posted on November 2, 2000 04:01:00 PM new
I guess this is not as clear an issue as I thought it was.
It seems that this has never been officially addressed?
Reamond, your input concerning 'when' an item will actually ship seems to be another good example of the many things that can go wrong with these transactions. Ebay does state (as I recall) that the seller must have the item in hand, but never declares what is an appropiate shipment time.
It bothers me that sellers can actually have the capability to change their TOS 'after' an auction is over.
This is most likely a baseless concern since there seems to be as little enforcement on TOS's as there are on buyers paying up.
Thanks for your thoughts on this.
posted on November 2, 2000 05:16:41 PM newPowerhouse: Though I don't think it's documented anywhere, I seem to recall a message here from someone that eBay terminated an auction that had a TOS on a different server.
And, eBay has a policy in place now for items not-in-hand. Basically, the seller must say that the item is a pre-sale and the item must be shipped within 30 days of auction close. It's under Listing Policies.
posted on November 2, 2000 05:46:14 PM new
Ah! Thanks, Glenda! I did not know that. Hard to keep up with the changes.
Do you recall if they ended only because it was on a different server, or because of some conflict with ebay policy?
Thanks again!
posted on November 2, 2000 06:10:45 PM new
At present there is way too much assumed by buyers and sellers at online auctions.
As far as "having the goods on hand", presently it is assumed that the goods are "in or on hand" unless stated otherwise. At least we hope everyone plays by this rule. LOL !
But what exactly does "in hand" mean ? Physical presence and control, a chose in action, a manifest ? The judges we presently have on the bench and our legislators have barely figured out simple word processing, yet they are making judgements about all this new technology, and some pretty bad judgements at that. The criminals and scam artists have yet to hit the online auction system hard. The main reason is that they aren't quite old enough yet. There will come a time when an action scam will be run out of a motel room for a 3 or 4 day auction at 5 different auction sites at once, with credit card purchases dumped into an account that is emptied and closed out in 5 days.
A seller's TOS are pretty meaningless. The basic TOS is value for value, generally put -money for a good or service. A TOS of payment received within 10 days under many circumstances may not hold up as the seller might interpret it, but the question is- hold up where and with whom ?
eBay's TOS are good only for suspending members. But as we all have come to find, people are only suspended until they open another hotmail account and re-join. I think we all might be surprised how many sellers with great FB are operating under false ID's and contact info and accepting only Postal MO's or cash or clearing checks through a third party. At some point eBay will have to take responsibility since they are the only one's with the ability to do anything.
The ethereal nature of digital information will cause problems also. The ability to edit, erase, and change information with no patent evidence is problamatic [ I won't even go into what can be done with digital manipulation of pictures except to say you can't believe your eyes anymore ]. As it is now, supposedly there is a log on a computer that forensic computer experts can use to tell when a file was accessed and possibly what was changed. But as we are seeing the ever more amazing abilities of hackers and common programers evolve, even this type of "evidence" will soon be questionable. And we all should know that if it can be programmed in it can be programmed out too.
The "good folks" that run this site have the power, but perhaps not the ability, to change postings without a trace or put up postings under someone else's identity. Some, and the number is growing daily, can do it without a trace of inpropriety to be found on any log. The best hackers in the world are totally unknown and go through systems with impunity and no trace.
It's just like the old saying goes- " We don't know who the best liars are, as we only catch the amateurs".
posted on November 2, 2000 06:23:27 PM new
Uhh... Yea! That ethereal thing! That is what was bothering me!
Seriously though, Reamond, those are some DEEP thoughts.
I know that ebay has scrambled like heck to avoid responsibility whenever and wherever possible.
Guess only time and litigation will provide firm answers.
Thanks!
posted on November 2, 2000 06:58:32 PM new
Ebay sets eBay rules by their enforcement mechanisms. EBay has very little to say about any contract which might arise between buyer and seller.
The problem is that "contract" is a very broad legal term, encompassing agreements ranging from very good to very bad on many different axes. Most contracts are legal, about the only way to have an illegal contract is to have one party agree to an illegal action.
So saying "a legal contract between buyer and seller" sounds a lot more meaningful than it is. In particular, seller's TOS does not in any way establish a contract which has any chance of being enforced by a court of law against a buyer who simply says "I never agreed to that".
A better contract, albeit still quite difficult to enforce, comes to exist after an exchange of emails. Seller emailing "$52.50 includes insured shipping" and buyer responding "I'll send $52.50, and I agree to USPS shipping" is indeed evidence of a fairly concise agreement between buyer and seller. However, nothing beyond the facts in that exchange become part of that contract.
Thus, someone's TOS somewhere else has very little to do with the law, but may well demonstrate that seller is a real jerk, and to be avoided.
posted on November 2, 2000 07:31:26 PM newBy bidding on an item you agree to be bound by the conditions of sale included in the item's description (or linked to from the description) so long as those conditions of sale are not in violation of this Agreement or unlawful.
The above excerpt (bold added) is from eBay's User Agreement, so it looks like it might be within the rules for a seller to have the TOS on another server.
posted on November 3, 2000 05:33:41 AM new
The only "out" would be if the seller is prevented by eBay from leaving negative FB towards you.
I don't necessarily agree that "contract" has a broad meaning. There are established and necessary elements to constitute a contract. Many people mistakenly think a "contract" merely needs to be a written and signed document. Many "contracts", if ever disputed, would be found to be without force of law in some or all components, and you never know until you go through the time and expense of court.
However, if one means that there is an ever broadening array of what might show evidence of a contract, I would have to agree. E-commerce is producing what might be some of that evidence, however it is not yet established.
Many of our trading "norms and terms" may presently have no force of law. Until the "big boys" enter the market and there are huge amounts at stake, few, if any, of our "norms and terms" will be tested in court. It is another case of monied interests determining what the law will be. In as much as eBay remains the nation's garage sale, our trade terms may never be tested.
posted on November 3, 2000 12:01:20 PM new
When Ebay put a limit on the size of banners, they also put a size on "links to your web site" which at that time had a statement about what you could link to.
Here is what Ebay has to say about links:
~~~~~~~~~~~~
Does this policy allow me to link to my own web site?
Yes, you are allowed to have a link to your web site. Please remember: the intent of allowing links to a web site from your Item page has always been to enable you to provide additional information to help you sell that item. The link should not advertise other items or the fact that you may have other items for sale on your web page. The links to your own web site must comply with the guidelines outlined in the Advertisements policy. Additionally, please follow the linking guidelines, which do not permit:
links to other auction-style trading sites
links to sites offering the same merchandise for the same or lower price
links to sites offering merchandise prohibited on eBay
Example of a permissible link to your web site:
Please visit us at www.mywebsite.com
~~~~~~~~~~~~~~~~~~~
