posted on April 16, 2001 04:48:44 AM new
I've seen a lot of posts on the Ebay message boards that seller's terms for payment and shipping are getting too big and too threatening when everything is listed on the auction page. Are terms that are covered in your End of Auction email but not listed on your actual auction page legal? I've got so much stuff on mine that sometimes the terms are bigger than the description of the auction (and I do pretty detailed descriptions of my items). Just wondering if I move some of these things (like fee for bounced check) to my EOA email if it is still legal.
posted on April 16, 2001 05:02:23 AM new
Legally speaking, I would STRONGLY think NOT....you can't hold a buyer to a TOS they haven't read till "after the fact." Personally, I have taken most of my TOS and simply linked it to my TOS area on my auctions; that is where I put the type of payments we accept etc., I have a link which says "Click here to read about our purchasing and return policies, etc." Then the information doesn't trash up my ad, yet the information is readily available to the potential buyer at their time of bidding, and therefore they are responsible to have read it.
I doubt most do, but that isn't my problem, my responsibility is to make it available to them before they bid and I do, but I don't clog up my ad with all this "stuff." I have found this approach keeps my ads looking clean and sharp, and I've never had a complaint about any TOS that someone failed to read. Works for us!
posted on April 16, 2001 05:18:49 AM new
I would think that not listing all of your terms in the actual ad would make any contract resulting from it completely unenforceable...after all, a completed auction page cannot be changed by a seller, but a page with terms not in the ad can be changed quite easily to serve whatever whims the seller may have at the time.
If you are worrying about cluttering up your ads, perhaps you should re-evaluate your TOS instead of linking to another page.
posted on April 16, 2001 05:23:23 AM new
I vaguely recall seeing a thread where ebay had announced all TOS should be on the auction page but I can't find it.
Does anyone else remember this thread or announcement?
posted on April 16, 2001 05:31:43 AM new
Ah, Found IT!
Here's the wording on terms of sale:
5.1 Listing Description. You must be legally able to sell the item(s) you list for sale on our Site. You must describe your item and all terms of sale on the listing page of our Site. Your listings may include text descriptions, graphics, pictures and other content relevant to the sale of that item.
My reading of it is it would be okay if it was listed on your About Me page since that comes under their Site but it wouldn't be acceptable if you had your TOS, even expanded, TOS listed off site.
posted on April 16, 2001 06:27:36 AM new
Twelvepole,
I reread it & you are right! It does say all terms of sale on the listing page of our Site which appears to mean on the LISTING page, not the About Me page.
Sorry...off to get another cup of coffee & my stronger reading glasses.
posted on April 16, 2001 09:58:54 AM new
Eventer, I just read your reply earlier re. handling fees on another thread. Having just gotten stung by someone who simply stated "buyer pays shipping ", and then proceeded to sock me with $10.00 worth of handling fees for a piece of pottery, I feel that if you are going to charge a handling fee, it should be on your auction page. His total, after the fact, was $20.00, and he spent $10.00 for shipping, priority mail insured,a recycled priority box, and some smelly spongy material for packing, and pocketed the rest. But I digress....If a seller is going to charge a handling fee, should it not be stated in their auction page? Otherwise, it is lying by ommission. What is the difference between saying "buyer pays shipping" and then after the auction is over, adding $10.00 for handling, and saying "I accept Visa, MC, Amex" and then, after the auction is over, adding a surcharge for these cards, but not stating it in the auction page???
I feel the problem is in the wording "buyer pays shipping". That doesn't state "buyer pays USPS/UPS/FED EX EXACT charges ONLY".
Now one reasonable person might assume that "shipping" is meant exclusively the amount the seller has to fork over to USPS for postage.
Another equally reasonable person may feel "shipping" is meant to cover the ENTIRE cost of shipping, from the box, bubblewrap, etc. including the actual postage.
I feel the buyer has met ebay's rules concerning having their terms on their listing page if they say "buyer pays shipping" & asks for more than just the postage because there is NO definition of shipping anywhere in the ebay guidelines.
Now, as to the credit card surcharge, that is specifically prohibited by ebay in their guidelines so anyone who trys to charge one either in their TOS on their listing page or after the fact, should be turned into SafeHarbor.
posted on April 16, 2001 11:27:20 AM new
We like to use the word "legal" a lot....often, it is a useless word UNLESS you are talking criminal. Then it depends on how good your lawyer is!
Have you ever heard of anyone going to jail for breaking a contract??
EVEN if you go to a lawyer and sign a written "contract" it can still be broken. It is then referred to as "breach of contract". You can have civil action taken against you, but not criminal. You cannot be forced to honor a contract. EVEN if civil action is taken against you (provided it can be determined which jurisdiction it falls in, and the party persueing the action has the time and money to persue it) you can't be forced to honor the contract.
On an auction site, you "offer" an item for sale and hopefully someone comes along and "offers" to buy it. You can call it a binding contract, but IF the deal falls through, you only have civil recourse and even then, you may or may not receive compensation. How many auction sellers do you think have actually filed "breach of contract" charges in a civil court against a buyer??
Realistically, the most you can do is hope your widget sells and hopefully you will receive payment. If you don't you can leave APPROPRIATE FB and file for your FVF.
It is unrealistic to expect that because somebody bids on your auction they MUST complete the deal.
You can put all the terms of service you want in your ad or EOA, but bottom line: either the transaction is completed or it isn't, either you get FB or you don't, and either it is POS or it is NEG.
If a buyer balks at your terms (before or after the fact), it's probably much better to cut them loose, re-coop FVF and re-list the item.
If a buyer earns too many "refused to complete the transaction" in their FB file, other sellers can decide to cancel their bids and eBay can boot them after 4 sellers request their FVF for non-payment.
If a seller earns too many "changed terms of sale after the fact" or "gouges on shipping" comments in their FB file, buyers may decide not to bid on their auctions. Then they will either revise their terms or they will stop selling for lack of customers!
I really don't think anyone can come up with a TOS that will cover all the bases, all the time or that would be honored or understood by all buyers.
You will always have sellers who leave out important info and buyers who don't ask before bidding, which means you will always have deals go sour and someone unhappy!!!!
My unsolicited advise...Just "roll-with-the-flow" or treat it like "water-off-a-duck's back"....
posted on April 16, 2001 12:49:36 PM new
I think that the auction page should spell out exactly what you are getting, exactly what it will cost with shipping, the warranty period, in short, everything the buyer needs to know with no surprises. However on a separate page I have my terms of sale which talk about refunds and exchanges, if the buyer wants to use other payment methods, special shipping methods, how I have handled special problems in the past - stuff that would clutter up the listing and isn't really relevant to the listing but some folks might want to read. The main reason for this is because when a customer wants to do a charge back (happened to me 3 times in over 2 years) the credit card company asks, "Do you have a refund/return policy?" For that 1 in 100 customer who wants to do something nasty, like use a monitor for a month and then return it and expect you to pay HIS shipping, you have to have something that says, "we will refund within 30 days the purchase price only. customer pays return shipping." But there is no reason to put this on the auction page.
posted on April 16, 2001 01:03:04 PM new
It is entirely reasonable to put a statement like all saleas are subject to our standard terms and conditions. [u]Click here for details.[/u] The link would then go to another web page where you have your terms and conditions.
Ebay, does in fact permit this. Quoting from Ebay help.
Links
Users may place a simple link to another web page in the description portion of their listing to help provide more information about the listed item.
posted on April 16, 2001 05:29:42 PM new
unknown -- What you quoted has NOTHING to do with terms. "Users may place a simple link to another web page in the description portion of their listing to help provide more information about the listed item" has to do with providing additional information about the item being sold, NOT TERMS.
eBay recently updated their user agreement to state that "You must describe your item and ALL TERMS OF SALE ON THE LISTING PAGE OF OUR SITE. See excerpt below.
Listing and Selling.
5.1 Listing Description. You must be legally able to sell the item(s) you list for sale on our Site. You must describe your item and all terms of sale on the listing page of our Site. Your listings may include text descriptions, graphics, pictures and other content relevant to the sale of that item.
posted on April 16, 2001 08:08:14 PM new
I think that TwelvePole and TRC are correct about the lack of "legal" viability of a TOS which is accessed by a link, even if that TOS is on an eBay site page (like a "ME" page). These supplemental sort of pages are easily modified, and unless the bidder has actually printed out the TOS version in effect at the time of the placed bid, date-marked in some non-modifiable way, the bidder is screwed if the TOS gets changed along the way.
EBay doesn't actually "require" some of the specifics that we might hope for (as bidders) to be listed on an item page. These might include specifics as to shipping methods and s/h/i costs. In fact, eBay provides a marvelous opportunity (via the item listing page) to be pretty vague about the whole thing. Personally, I think that's fine. I don't much want a "venue" telling me how to market my stuff. If I find that it's more effective for me to put specific information in my ads about shipping charges, for example, then I want to do it (and I do). But I don't wish to be REQUIRED to do it. If I don't believe (and I don't) that I need a lengthy and complex set of rules and policies about returns/refunds/corrective actions, I don't wish to be REQUIRED to do it. It is my business.
And as a bidder, I'm frankly wary of auctions where the TOS is longer than the description, with a tiresome list of "thou shalts" or (more typically) "thou shalt nots" and "we WON'Ts". I've watched several sellers over the years...they start out simple in their TOS (hard to even call it a TOS), but every time they encounter something 'new' (a question, a reluctant bidder, a slow-payer, a return, a lost package, etc.) their TOS grows, not unlike Pinnochio's nose, to the point that the TOS greatly outweighs the pictures and description. ACK. But regardless of how I feel about that, as a bidder, I hope eBay will always allow sellers to over-TOS or under-TOS, as each sees fit.
I think I'm responsible, as a bidder, to read every thing on the auction page of an item I'm bidding on. I think I'm responsible, as a bidder, to ask questions (BEFORE I bid) about things I don't feel are clear but which matter to me (whether related to details about the item or about the seller's TOS). But once I've placed a bid, I think it's my responsibility to abide by the seller's terms, however muddy they might be, as stated on the item page itself...not elsewhere via link.
posted on April 16, 2001 08:12:56 PM new
I personally will not bid on an auction where there are excessive "terms of sale". It just seems to me as a sellers way of being in control and inflexible. I would much rather pay a local retailer "full price" for an item than deal with a hard nosed seller.
I personally have sold many items over $5k and don't have but the absolutely essential terms. I've never had a deadbeat or an unsatisfied customer. I do admit I've given concessions though, but Wal Mart does too.
For the sellers who want to vastly overcharge for shipping and handling, I just send them the actual bid amount and tell them to donate the item to a local charity or throw it in the trash. I do however send a nicely worded note saying I hadn't expected the charges to be so high.
This is just MHO however and has nothing to with legalaties. As said before, who would sue who to enforce an Ebay contract? I for one would be unwilling to spend any money pursuing a deadbeat. You just can't get blood from a turnip.
posted on April 16, 2001 08:13:26 PM new
eBay requires that your TOS be on the auction listing and CANNOT be in a link to another place. It was explained to me that you could change the TOS after the fact, and thus change the parameters.
posted on April 16, 2001 08:35:06 PM new
Placing the TOS in the auction description is not a guarantee that they cannot be changed. Some sellers include their TOS in the auction description as a .jpg image.
posted on April 17, 2001 02:40:14 AM new
I just ran across someone changing their tos after the fact. He offered PayPal in his auction with no mention of a fee for using this service. In his EOA, he said if PayPal was used I had to add .30 cents, Plus..2% of the total with shipping! I would never had bid on his auction if I had known this.
This was the first time I had seen this adding the 2% on top of the .30 cents. I was not to happy.
