posted on August 14, 2001 06:29:44 PM
I sold a Epson Printer, advertised as " Return Merchandise, sold AS IS". Buyer bought it and claimed defective and demanded full refund. I am nicely to offer him half of winning price, he refused. He claimed that even though it was sold "AS IS", Expressed Warranty still applied since, I have a picture of the item and some descritption described the functionalities of the printer. Here is the exact description: "1440 x 720 dpi Photo Quality color and laser sharp black text
Fast print speeds: 6 ppm black, 5 ppm color
Ultra small ink droplets for amazing detail (6 picoliters)
PC, iMac,and Macintosh compatible
Built-in USB and Parallel Port"
ITEM CONDITION (stated on description): Return merchandise, untested, As Is
My TERM OF SALE: I accept Money Order, Cashier Check and Paypal. Payment has to be received within 10 days of auction close. Please read auction description and Term of Sale before placing bid. All auctions are considered "as is" and final (no refund), unless specific guarantees are stated. Shipping and Handling Fee is not refundable. Shipping and handling fee will cover for US postal parcel shipping to US 48 states, shipping material, auction administration. Please let us know if you need special accommodation such as Over Night shipping, Insurance, ect... If you have any other questions, please email me! Happy bidding!
HIS EMAIL REFUSING MY HALF PRICE REFUND: I respectfully decline your offer of a refund equal to half of my bid. As a counter offer I would request a full refund for not only myself but also for the other disgruntled purchaser of the 740i.
At your request I again carefully reviewed your auction site. It is apparent that you have an understanding of the term "AS IS." It is also apparent that you don't have the same understanding of expressed warranties. To create an express warranty you do not need to use words such as "warranty" or "guaranty" or that you even had the specific intent to make a warranty. Any description creates an expressed warranty the the item will conform to the description. "AS IS" does not modify an expressed warranty.
"I am sorry that you misunderstand the consequence of the inclusion of the picture and the description. On the other hand, I would not have bid on the printer but for the picture. I also carefully considered the "as is" and would not have bid if the description were not included. It seems that you intended to hold me to the "AS IS" even if I didn't understand its consequences. Shouldn't I hold you to the same standard? If I let you out of the expressed warranties and you let me out of the exclusion of the implied warranties then it still seems that I am entitled to a full refund.
I reviewed your feedback on ebay and believe you to be a reputable seller who is acting in good faith. Your only recent negative feedback concerns the sale of the same type of printer. I would hope that you would realize that satisfied customers make for a successful business even if you must take an occasional loss.
You should also be aware that in addition to "AS IS" and "express warranty" there are consequential and incidental damages. By way of example, suppose a person needs a particular printer by a particular date. The particular printer was needed because the buyer had a source of cheap print cartridges. Say the seller breached an expressed warranty. Because of the breach the buyer was forced to purchase a different printer at the last minute. The replacement printer had more expensive print cartridges. The incidental and consequential damages for the breach might be the cost of the replacement printer plus the difference in the cost of the print cartridges over the life of the printer. It is not uncommon that the incidental and consequential damages can far exceed the original purchase price. For that reason, it is not uncommon for warranties to specifically limit or exclude incidental and consequential damages. In my careful review of the auction site I noticed that you did not limit or exclude incidental or consequential damages.
At this point I have not suffered any incidental or consequential damages and I am in a mood to settle for a full refund not only for myself but also for the other disgruntled buyer. I mention incidental and consequential damages because you made a good faith effort to resolve this dispute and I only thought it fair to let you know that I thought this through before bidding and again before I sent you my first email.
I would urge you to resolve this dispute to my satisfaction and to the satisfaction of the other purchaser of the 740i.
posted on August 14, 2001 06:39:49 PM
The html code is hard to read.
I loaded it into a browser, and looked at it. What's the problem? You buy something like this, you take your chances. Sort of like gambling. I wouldn't touch it my self, but it's very straight forward.
posted on August 14, 2001 07:31:50 PM
My response, after receiving such a long lecture would be -
Tough Nuggets!
What will he do, sue you?
How much did he pay for it? Anyone who buys anything off of eBay which is expressly indicated "UNTESTED, AS IS" should know they're taking a chance.
However, if it were me, I would have tried to test it and if it was a junker, not sell it. To sell potentially worthless items on eBay and then try to cover yourself with "Untested, As Is" is just asking for trouble.
posted on August 14, 2001 07:35:01 PM
I got many items like this and don't have time to test them, listed "AS IS, unstested" and starting bid at 9.99, the ink cartridge came with it worth more than 9.99.
posted on August 14, 2001 07:41:04 PM
This buyer is a troublemaker who should have passed this auction up when they read the description. While I don't do it, I've seen liquidators auction off untested returns and their customers seem to know the risk they are taking. This armchair lawyer is on some kind of vigilante mission to punish the seller for not attending law school, I really doubt that he even wanted the item in the first place. eBay is THE place to be for nutz that get off on that sort of thing.
It's for this reason that I don't agree with those that say seller's should be all loose and informal with buyers. As a seller you have the same liabilities and risks of a real business, even if you are posting in your underwear.
posted on August 14, 2001 07:47:34 PM
The customer is right in this case. Unless the description expressly states the problem with the item, there is an express and implied warranty automatically from your description.
In fact, if the printer doesn't work, nothing in the description is true. It is not even a printer if it doesn't print.
posted on August 14, 2001 08:13:22 PM
I think that selling untested potential junk on Ebay is irresponsible. It wouldn't take more than a few minutes to hook up a printer and see if it prints.
So, in this case, the buyer is right. However, demanding a refund for himself and the other unsatisfied customer is a bit over the top. This person sounds like a trouble maker...
posted on August 14, 2001 08:18:55 PM
I was once told by my attorney that when I sell something used, such as a car, to make sure the receipt had the following words on it:
"AS IS"
That means - you bought it - it is yours, exactly as it sits.
posted on August 14, 2001 08:26:18 PM
According to a recent Judge Judy ... a gal bought a car which was a junker, sign on the car said "AS IS - NO WARRANTY" - gal wanted a refund - JJ told the gal Tough Nuggets!
I agree, the seller should test stuff before selling, but I also agree that the bidder should beware. Especially now that I saw the opening bid was only $20, and it is true that the print cartridge alone is worth more.
(For what it's worth, Judge Judy is (was) a real judge with 10+ years on the NYC Bench. Unlike most other shows where you do good if the "judge" had any legal training whatsoever.)
posted on August 14, 2001 08:29:03 PM
I just went to judgejudy.com to doublecheck my facts in my last post, and they have a realvideo bit of this "AS IS - NO WARRANTY" episode. It's under Judy's Best Moments. Maybe you should refer your Epson buyer to that website!
posted on August 14, 2001 10:45:51 PM
I think the buyer is entitled to a full refund.
The Judge Judy car case is not analagous. In that case the buyer had an opportunity to inspect the car in person prior to the purchase. Also, the car, unlike the printer, was working when the buyer purchased it, and it caught on fire after the fact.
"AS IS" clauses presume the buyer had an opportunity to physically inspect the merchandise in advance. Furthermore, most courts will refuse to uphold boilerplate clauses like "AS IS" disclaimers in a consumer contracts when they involve remote purchasers.
Judge Judy would ask this seller why he offered to refund half of the buyer's money. If he really believed he was in the right, why offer the buyer anything? I don't think Judge Judy would take kindly to the seller's claim that he "didn't have time to test it" either. She'd say "But you found the time to sell it."
For most buyers it's too much trouble to go to court. Dishonest sellers depend on that. But there are other things cheated buyers can do. They can file chargebacks if they paid by credit card, they can leave negative feedback, and they can report sellers for fraud. Sellers who sell broken merchandise under the illusion that "AS IS" disclaimers will shield them from liability are not going to get very far.
posted on August 15, 2001 12:05:27 AM
Tell that smartmouthed arrogant bottmuncher to shove it where the sun don't shine and leave him a big fat neg for trying to intimidate you with nonsense. He was downright insulting your intelligence!
I frequently sell untested electronic items from auctions where it is clearly stated ' ALL SALES FINAL, NO WARRANTEES OF ANY KIND'.
I *DO* include the manufacturers specs, and these certainly DO NOT imply that the item is currently functioning at that level.
I state 'UNTESTED. SOLD AS IS', and have only had one problem when a customer informed me that my description of the case was in error, since it was warped (I thought it was the normal shape of the item). I refunded then, since functionality was not an issue - but rather the accuracy of my description. No one has had the gall to complain about an 'AS IS' item not functioning.
I would respond to this idiot by telling him that your offer of a partial refund is now rescinded since he replied in such a demeaning tone, and that if he wishes to persue this issue you will forward it to SafeHarbor, especially since a neg from him at this point would be considered slander, and that he might have to answer to *YOUR* lawyers!
posted on August 15, 2001 12:25:55 AM
Hi biddejour,
Having purchased returned goods in large quantity for resale, I have dealt with customers like this.
There are 2 types of buyers you're working with.
1.Buyers that know the nature of what they're bidding on. They will buy returned electronics for whatever salvageable components are of use, or have the capability of repairing. These buyers will either purchase for their own use or to resell again.
2.Buyers who are looking for the "deal of a lifetime". These folks assume everything works or can be fixed within the scope of their knowledge, and bid based on price usually ignoring the possibility of any problems.
If I'm correct, you're buying electronics anywhere from a single skid - a truckload. This is usually why one won't test each particular item. Knowing that some will work and others may need repairs but all of which are cosmetically fine.
Many time you can have these items fix for free through authorized repair centers. BUT, buyers that are critical of auctions like biddejours' should steer clear unless you understand what you're bidding on.
A seller isn't responsible for knowing which type of the buyer a person is. While your description was clear to me an interested party that is unsure could have easily asked you a question.
[ edited by auctionjoe on Aug 15, 2001 12:29 AM ]
posted on August 15, 2001 01:19:42 AM
... and that if he wishes to persue this issue you will forward it to SafeHarbor, especially since a neg from him at this point would be considered slander, and that he might have to answer to *YOUR* lawyers!
If you go this route, make sure you call it LIBEL. Slander is spoken defamation; if it's in writing, it's libel.
If he's going to throw around concepts from Contracts 101, you might as well hit him with terms from Torts 101.
posted on August 15, 2001 05:30:24 AM
Since the printer does not do the things that was advertised, the buyer was misled. I would refund his money or send him a working printer. One cannot claim a printer does certain functions it doesn't without it being a lie.
That means - you bought it - it is yours, exactly as it sits.
Sorry, armchair lawyer vs mine - I'd take mine.
It is not a question of being an armchair lawyer. The seller made the mistake of implying functionality.
The inclusion of the printers features in the listing implies that those features are a part of the item being sold. When those features were not part of it because it did not work, the buyer asked for a refund.
Maybe this buyer knew before he bid that he could snag the seller after the fact and did just that. It's lousy for the seller but a good lesson.
posted on August 15, 2001 08:15:29 AMThe seller made the mistake of implying functionality.
I guess I'm surprised that anybody would think "as-is" implied any functionality.
Absent any clear and unambiguous evidence otherwise, I've always assumed an "as-is" item to be useful as nothing more than a doorstop, and listing the manufacturer's specifications for a particular item would not meet the requirement of "clear and unambiguous", but that's just me, I guess.
posted on August 15, 2001 08:19:14 AM
Not being a lawyer, I don't think you have to issue a refund. I think untested/as is says it all to any intelligent human being.
However, I'm wondering what you have to lose if the buyer ships the item back to you and you issue a refund of the bid price only. You won't be out the postage, and you'll have the item to resell. If the time for a FVF credit has passed, tell the buyer that you'll deduct your fees also.
This is also one time I'd leave less than non-glowing feedback. User doesn't understand English: Untested/As Is means Untested/As Is. Normally I don't do this, but in this instance I would warn other sellers of this type of item.
I'd also block him from bidding on my auctions, and tell him in no uncertain terms that part of being an adult means that you take responsibility for your own actions. Again, normally I don't get into spitting fights with my customers (they think I'm a real sweety pie), but this would p*ss me off no end.
Have you asked him exactly what he thought Nontested/As Is meant? I'd love to hear his answer.
posted on August 15, 2001 09:04:48 AM
The way to avoid this is to describe as "sold for parts only, not known to be working".
Observe the difference between that and "great photo quality printer, untested, as is".
Consider, is the difference between those two descriptions something an ethical business should be trying to charge money for? Is the phenomenom that the 2nd will appeal to a class of buyers looking for a bargain but headed for disappointment really the basis of a business plan?
A middle ground alternative, used by lots of retailers, is to sell all manner of untested junk but to take it back with no questions.
posted on August 15, 2001 09:48:10 AM
CAVEAT EMPTOR
"caveat emptor (k?ve-at´emp?tôr´) noun
The axiom or principle in commerce that the buyer alone is responsible for assessing the quality of a purchase before buying. "[From Latin, let the buyer beware : caveat imperative of cavere, to beware + emptor, buyer.]
Just ignore him! Hes sounds like a jerk...anyonw who buys an untested printer on Ebay is a fool!
