posted on June 25, 2001 11:57:30 PM
Corporations and Federal agencies do "illegal" things every day.
It amazes me when eBay states that a bid on their site is a "contract" or the Post Office states that they are not "responsible" if insurance is declined, it must be the law !
A hint on the eBay "contract"- if it were a contract, then why is the seller permitted to cancell the auction with bids or cancell any bids he/she wishes ? Under these circumstances there isn't even a valid offer to sell, so there can not be binding acceptance when a bid is placed. The mirror side to that is the bidder is permitted to cancell his/her bid. So all you have is the seller expressing he/she "might" sell and buyer expressing he/she might buy.
These entities do not make the law and they do not always operate within it.
If the "buyer is responsible when insurance is declined" is the USPS's policy, then everyone should purchase from them with a credit card. It would be very interesting to see a charge back on USPS when the item was in their possession for the shipping, and see how the Postal Service could defend their position to the credit card company.
Most of this TOS stuff is what is referred to as "ad terrorum"; to terrorize. Since too many people think these entities have some sort of authority, what they say must be true. When if fact these outfits know that %99.99 of the people will never challenge what they say.
posted on June 26, 2001 12:08:25 AM
usps-mrc-books
usps-mrc-movies
usps-mrc-collectibles
usps-mrc-music
usps-mrc-everythingelse
BTW the books, movies & music don't have any negs or neutrals in the last month. Everythingelse has TONS of bad feedback, and collectibles is somewhat better than that. Looks like they don't know how to pack!
Without eBay, I might have a real life...
[ edited by mcbrunnhilde on Jun 26, 2001 12:22 AM ]
posted on June 26, 2001 12:17:54 AM
Hey Catawba! - that scam that buyer pulled on you is the latest and most popular fad in the shiester business. The buyer refuses insurance pays via paypal (which protects the buyer, not the seller) claims it never arrives and gets a refund. Without insurance you are up the creek without a paddle. Its also a popular scam for American fraud artists to use on non American sellers as non U.S. sellers aren't protected. The money is just zipped out of their paypal account and they are screwed. I know of 3 such scams (and I can't tell you who they are on ebay because of AW rules) but 2 of the cases were run by the same person - let's just say she likes to buy 1920s coats....
Paypal is not your friend in these cases and I would ALWAYS insure or register a parcel for a paypal sale...
posted on June 26, 2001 04:38:30 AMIf the "buyer is responsible when insurance is declined" is the USPS's policy, then everyone should purchase from them with a credit card. It would be very interesting to see a charge back on USPS when the item was in their possession for the shipping, and see how the Postal Service could defend their position to the credit card company.
If a person pays with a CC, they can do anything their bank will go along with.
As far as how the Postal Service could defend their position, the terms in their auctions are plain enough that any literate person can understand them. Judges don't buy the but I didn't bother to read it defense.
Even though I don't sell with terms like this, I can't for the life of me understand (other than the CC thing, and that's only because the seller invited a third party {and their TOU} into the transaction) why anyone thinks that terms like these aren't valid if they are fully disclosed up front. It's so simple, If there are terms like this in an auction, make a choice, and live with it.
I agree with the Feedback thing, selling with terms like these can get you negative feedback from the cheapskates who don't want to pay the cost of insurance, but still expect the seller to make good on the Post Office's screw ups.
Tracking and Insurance is a good thing, and keeps people honest.
posted on June 26, 2001 05:07:01 AM
With all that's been said here, perhaps the best bet would go to a law library if you have a law school near you, and ask someone to help you research the law in this area.
The board's a great place for info, and a lot of the things posted in this thread are helpful also, but if you don't do a refund, and the person were to do a charge back, you'd need legal recourse, and jmho, but the board isn't where to go for that kind of advice.
posted on June 26, 2001 06:55:41 AM
The following post was made by a user who claims actual experience in the situation where the buyer refuses insurance:
dubyasdaman posted on March 31, 2001 07:11:19 PM
---------------------------------------------
[posted by ypayretail : Actually proof of delivery is what is required to win a case of fraud against you in court.]
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.
posted on June 26, 2001 07:47:34 AMmcbrunnhilde Thanks for the USPS links.
BTW they do not specifically state they are not responsible. They say:
Insurance or tracking is not included in the shipping cost. If you are the successful bidder and desire insurance or tracking, you must contact us prior to paying. Without insurance, we cannot process a claim in the event of loss or damage.
which of course translates into "We are not reponsible."
And, thanks to mrpotatoheadd for the link to the other AW thread.
So far my buyer hasn't been pushing for a refund. I keep trying to keep him informed as to what is happening at the PO (which is very little) but maybe that helps to show that I'm not just taking his money and running. I don't know how it will end up but I do know that from now on all my auctions will include insurance in the shipping...no more choice. Personally, I like to have a choice. Why do I want to pay $1.10 for a $2.00 item? I'm willing to accept the consequences of my actions. And if I'm foolish enough not to buy insurance for a more expensive item...who do I have to blame but myself?
But a seller has to protect himself; especially a little fish like me.
posted on June 26, 2001 07:58:55 AMBut a seller has to protect himself; especially a little fish like me.
You might want to look into using U-PIC for your insurance. For shipping to the US and Canada, you get $100 coverage for $0.60, international (to approved countries) is $1.00 (I don't have the sheet with the rates right in front of me, but I believe the ones I posted to be accurate). Also, their claim process doesn't require jumping through near the number of hoops that USPS's does.
By using them, I am offering insured shipping for all items at rates comparable to (or better than) many other sellers in my category who ship uninsured.
How about sending a link to your buyer showing a current post office auction. Bring the TOS to their attention--even the PO won't process a claim if insurance is not purchased!!! I think it makes your position look stronger if you have the same terms as the PO!!
Good luck!
Without eBay, I might have a real life...
posted on June 26, 2001 03:56:03 PM
First problem with a lost item - you have to prove that you actually shipped it. Without delivery confirmation or insurance, gonna be hard to do.
The Uniform Commercial Code clearly places responsibility for loss on the SELLER until such time as the goods are tendered to the buyer by the carrier. UCC § 2-509. Risk of Loss in the Absence of Breach. There's another provision in the UCC (which I can't put my hands on right now!) that also clearly makes it the SELLER's responsibility to make sure items are delivered.
I don't think your TOS is enough to shift that liability. At the least, you'd need delivery confirmation to prove that you shipped it and a signed acknowledgement by the buyer (maybe an email would be acceptable) that they are accepting the risk of loss/damage.
After all, the SELLER controls the means of shipment and the SELLER controls how the item is packaged - the only thing the SELLER doesn't control is the post office running over the package with a truck! Why should the buyer be responsible?
posted on June 26, 2001 04:20:16 PMFirst problem with a lost item - you have to prove that you actually shipped it. Without delivery confirmation or insurance, gonna be hard to do.
I don't know about that. If I have to come to court, I can bring the following:
1) Copy of my EOA notice, with shipping and insurance charge included.
2) Copy of customer's email requesting to decline the insurance.
3) Copy of my email to customer explaining that if I do that (ship uninsured), the customer would be responsible for any loss, and that the customer must respond to this email stating that they agree to this change in terms.
4) Copy of customer's email stating that they are willing to accept responsibility for loss in order to get a reduced shipping rate.
5) Copy of my email to customer stating that their item would be shipped uninsured per their request on July 1, 2001.
6) Copy of postal receipt showing shipment to customer's zip code 12345 on July 1, 2001.
7) Copy of my eBay feedback (no negs for non-shipment).
8) Copies of email from other buyers who had winning bids on auctions that closed the same day as the buyer making the complaint who have already received their items.
9) A question for the court: Why would I run 1,000 successful auctions, and just now, risk my reputation to cheat this one single buyer over a $10 widget?
And just what, exactly, is the customer going to bring to court to help him argue the case that I should be responsible for the item after he has already stated that he would accept that responsibility?
I realize that nothing I posted above actually proves that I mailed the item, but I suspect that I would not have much of a problem with my defense.
Now, let's try turning that opening quote around and look at it from the other side:
How do you prove that the seller didn't actually ship it?
edited to add one more item I can bring to court in my defense:
10) Copies of email from my previous buyers who also declined insurance, and received their items.
[ edited by mrpotatoheadd on Jun 26, 2001 04:29 PM ]
posted on June 26, 2001 06:01:16 PM
catawba: If you accept credit cards, or use Paypal, Billpoint, or any of the other payment services, the buyer can get his money returned to him if item is not received."
If you use the credit card service of BidPay
you won't have that worry as they do not
do charge-backs...ever! It also is a
free service for the seller. I have used them and never a problem.
posted on June 26, 2001 07:08:54 PM
There are few if any eBay transactions that will show up in any court. Small claims court is an avenue, but it has no enforcement for its decissions, and can not be used unless the parties are in the same jurisdiction.
The only way these issues will show up in court is when there is some big money on the line, or a class action case developes.
Cases on contract generally allow only for actual damages, and you have a duty to mitigate your damages, so anyone bringing a case on a contract actually loses even when he/she wins once the costs are totaled.
posted on June 27, 2001 05:06:18 PM
I can't remember who it was, but someone who posts here DID get a BidPay chargeback! I don't remember the circumstances or the reason for the chargeback, but apparantly it can happen.
posted on June 27, 2001 06:40:55 PM
it was not a charge back, the person that bought the MO canceled it.
It is actually easier to stop payment on a MO that you think and it doesn't cost the person that bought the MO anything to do so, unlike a personal check that costs about 15.00
posted on June 27, 2001 08:09:47 PM
Just a suggestion--have you asked your buyer to simply go to his post office and see if they have the package? In the 3 years I have been selling on eBay, I have had about 5 packages that were not delivered. When I asked the buyers to just go to their post offices and see if they were there, the packages turned up on a shelf waiting to be picked up every time. Sometimes mailmen just don't leave that little card telling you you have a package to be picked up.
posted on June 27, 2001 08:53:04 PM
What about this? If a seller states in her auction that insurance is extra at your request. Then when they send you the email stating where to pay and amount. She say's nothing in the email about including extra for insurance. Just gives a total. If not recieved who's fault is it? Buyer or seller?
posted on June 28, 2001 03:53:59 AM
this is a great thread! Lots of good info here.
Fonthill-
This was a US buyer, the item was a dress.
It's a smooth scam to run- I would certainly not get into a cross-country litigation with someone over an 85.00 transaction.
This is just a risk we take as sellers when we use online payment services and accept credit card payments. I now view insurance as protection for me, not the buyer.
Gaylene-
I believe chargebacks can be initiated on two levels. One is through the Payment service. The second choice for a buyer to initiate a chargeback is through thier credit card company itself.
I want "hassle-free" transactions when I use e-bay, as a seller or a buyer. Seem to me IMHO, that requiring insurance on all items over $25.00 protects me as the seller, and will prevent bad feelings and negative feedbacks. This was my first chargeback in almost 200 transactions.
As a buyer,if I sent money, and I did not receive the item, I would expect a refund. The insurance is just an extra safeguard.
I did not know there was another type of insurance than through the USPS- what is it?
posted on June 28, 2001 08:12:48 AM
We all know that it is a federal offense to tamper with the US Mail. (Isn't that the phrase used?) Once the package is in the hands of a postal clerk...that is, not left in a box for pickup or other means that might invite theft from some passerby...how can the seller be held responsible? Isn't the reason insurance is offered is because of the damage or loss while the package is in the hands of the USPS?
