From: Sid on

"Peter Parry" <peter(a)wpp.ltd.uk> wrote in message
news:n6sbn25fren23vei5q9vtmvjik2iqe0a3k(a)4ax.com...
> On Tue, 05 Dec 2006 21:01:33 GMT, "Sid" <nospam(a)nospam.co.nospam>
> wrote:
>
>>"Peter Parry" <peter(a)wpp.ltd.uk> wrote
>
>>> Nothing, so long as they have an obligation to pay. However, once
>>> the contract is cancelled using the DSR's they no longer have any
>>> contract or obligation to pay so there is no unpaid item and they
>>> cannot be non payers by eBays rules - simple.
>>
>>but aren't you just using semantics to fit your position?
>
> The law is all about semantics, lawyers make a living for their
> families out of them.
>
>>is there anything specific in the DSR that could nulify an ebay strike in
>>a
>>legal sense?
>
> Yes, the eBay strike is a consequence of having failed to fulfil a
> contract. If the contract is cancelled you cannot have failed to
> fulfil it. The DSR's cancel the contract, in the exact words of the
> SI "the effect of a notice of cancellation is that the contract shall
> be treated as if it had not been made". If the contract has not been
> made neither eBay nor anyone else can exact retribution for not
> fulfilling it. To do so would be as illogical as penalising everyone
> whose bid did not win.
>
>>you've mentioned the buyer should not be penalised and there
>>shall be no get out clause, but surely the spirit of that is the buyer
>>shall
>>not be at a financially loss.
>
> No, quite the reverse. The spirit is that the supplier should carry
> nearly all the risk in a transaction. One purpose of the DSR's is to
> ensure that for distance sales the suppliers make their descriptions
> accurate and comprehensive. One way of doing this would be to try to
> prescribe what words could be used but the practical problems of
> doing this are enormous. Another is to simply give the buyer the
> right to sling the goods back at the seller without having to argue
> about the detail. That is the approach which was chosen.
>
> The rationale is that a good seller who accurately describes their
> produce will have few problems, the poor seller who tries to hide
> junk under dubious (but not actually unlawful) descriptions will have
> to deal with a lot of returns and will mend their ways.
>
> Let's say I had a laptop for sale. If I described it as :-
>
> "Compaq Evo N160 933Mhz Laptop. Spares/Repair
>
> Compaq Evo N160 in superb cosmetic condition, looks almost new.
> I don't know if it works as it has no power supply and therefore I
> have not tested it. It has not been opened. Because I can't test it
> the unit is sold for spares and repair only.
>
> * Intel Celeron 933Mhz
> * 13.3" Screen clean and unmarked
> * No Battery
> * No Power supply
> * Compete UK Keyboard"
>
> For the item I'm thinking of that description is probably just about
> legal but it doesn't describe it completely or accurately. To see
> how it has (and should) be described have a look at the sale I
> modified that description from at :-
>
> <http://cgi.ebay.co.uk/FAULTY-Compaq-Evo-N160-933Mhz-Laptop-Spares-Repair_W0QQitemZ330055905616QQihZ014QQcategoryZ177QQcmdZViewItem>
>
> Someone buying from either description would probably (it's too late
> at night to think of the finer nuances :-) ) have no comeback under
> the SOGA.
>
> However I think most people would agree that my description, whilst
> accurate, is misleading. Niels description is accurate and
> comprehensive and would mislead no one. The DSR's would allow
> someone who bought from me to simply return the goods for a refund.
>
> They could of course do the same with Niel, but as his description is
> accurate the chances of that happening are very much lower. The
> DSR's allow someone who bought on incomplete but not actually
> dishonest descriptions to have simple redress against the seller.
>
>>it would be very easy for ebay to use different wording in the unpaid item
>>process to break your logic.
>
> It would be impossible as the DSR's eliminate any contract of sale.
> Once that is gone eBay can do nothing (nor would they try - the risk
> would be far to great).
>
>>we all know what the spirit of the unpaid item process is - if the buyer
>>backs out of the transaction they get a strike and if they do it too often
>>their ebay account gets shut down to protect sellers and ebay from
>>frivoulous bidders, particularly problematic with auction style listings.
>
> That's as maybe, the DSR's give buyers an absolute right to back out
> for no reason as many times as they wish and there is nothing eBay or
> anyone else can do about it.

ok thanks Peter, appreciate it.

real life case - my wife bought a skirt in ebay auction (new with tags) and
it doesn't fit. the seller has about 400 feedback and does have other
similar garments for sale. She received the skirt last week. the seller has
refused a full refund on the basis that he doesn;t have an ebay shop. there
is no return policy stated in the listing. he has offered a refund less
ebay/paypal fees and less shipping cost, also he expects her to pay the cost
of postage back to him. which all amounts to a negligible refund making it
totally pointless. the size was correctly specified in the listing. my
advice to her was the seller hasn't mislead her and she should have been
more careful. but i think now my advice was incorrect?? any other helpful
pointers appreciated.
Sid


From: Eeyore on


Sid wrote:

> "bcc97" <bcc98(a)stork.plus.com> wrote in message
> news:1165355539.959391.185260(a)80g2000cwy.googlegroups.com...
> >
> > Sid wrote:
> >> we all know what the spirit of the unpaid item process is - if the buyer
> >> backs out of the transaction they get a strike and if they do it too
> >> often
> >> their ebay account gets shut down to protect sellers and ebay from
> >> frivoulous bidders, particularly problematic with auction style listings.
> >> Sid
> >
> > Exactly. The spirit (and letter) of the process is to penalise the
> > buyer unlawfully for exercising their legal rights under the DSR.
>
> i can't find a reference in the DSR which backs up what your saying.
> the only reference that I can find that seems pertinent is DSR 25 (2) (if
> there is another please point it out).
> which states:
>
> "(2) Where a provision of these Regulations specifies a duty or liability of
> the consumer in certain circumstances, a term contained in a contract to
> which these Regulations apply, other than a term to which paragraph (3)
> applies, is inconsistent with that provision if it purports to impose,
> directly or indirectly, an additional duty or liability on him in those
> circumstances."
>
> I don't see the connection between an ebay strike and 'duty or liability',
> liability would be financial, well as long as he doesn't pay or gets a full
> refund there is no liability imposed on the buyer. would an ebay strike be
> defined as a liability?
> as for duty, that would be something the buyer is required to do in order to
> get the refund. if he walks away after being reimbursed, or after stating he
> has cancelled and will not pay, he has no duty to perform.
>
> > In relation to auction-style, it is by no means certain that DSR apply,
> > and it would certainly be open to the seller to argue this. There is
> > no such doubt in the case of BIN.
>
> it does state that auctions are exempt, i'm guessing htere is still debate
> on whether ebay auctions fall into that category.

In any case this wasn't an auction it was BIN.

Graham

From: Alison Hopkins on

"Sid" <nospam(a)nospam.co.nospam> wrote in message
news:JZodh.43251$Pk.18013(a)fe2.news.blueyonder.co.uk...

> real life case - my wife bought a skirt in ebay auction (new with tags)
> and it doesn't fit. the seller has about 400 feedback and does have other
> similar garments for sale. She received the skirt last week. the seller
> has refused a full refund on the basis that he doesn;t have an ebay shop.
> there is no return policy stated in the listing. he has offered a refund
> less ebay/paypal fees and less shipping cost, also he expects her to pay
> the cost of postage back to him. which all amounts to a negligible refund
> making it totally pointless. the size was correctly specified in the
> listing. my advice to her was the seller hasn't mislead her and she should
> have been more careful. but i think now my advice was incorrect?? any
> other helpful pointers appreciated.

Leaving aside any attempts by others to use the Law.... <g> I'm with you. If
it were me, I'd put it down to not checking the size properly, and not
asking beforehand what his return policy is. I've bought things on EBay that
weren't quite the right fit. It happens. Relist it maybe?

Ali


From: Peter Parry on
On Wed, 06 Dec 2006 00:38:45 GMT, "Sid" <nospam(a)nospam.co.nospam>
wrote:


>i can't find a reference in the DSR which backs up what your saying.
>the only reference that I can find that seems pertinent is DSR 25 (2) (if
>there is another please point it out).
>which states:
>
>"(2) Where a provision of these Regulations specifies a duty or liability of
>the consumer in certain circumstances, a term contained in a contract to
>which these Regulations apply, other than a term to which paragraph (3)
>applies, is inconsistent with that provision if it purports to impose,
>directly or indirectly, an additional duty or liability on him in those
>circumstances."

>I don't see the connection between an ebay strike and 'duty or liability',

The strike is a consequence of not completing the purchase. If there
is no purchase to complete there can be no strike.

>liability would be financial, well as long as he doesn't pay or gets a full
>refund there is no liability imposed on the buyer. would an ebay strike be
>defined as a liability?

Of course - after three they can no longer trade, that is a financial
penalty.

>it does state that auctions are exempt, i'm guessing htere is still debate
>on whether ebay auctions fall into that category.

Yes there is still debate, although not about BIN or 2nd chance
offers or repeated sales of the same items.
--
Peter Parry.
http://www.wpp.ltd.uk/
From: nick on

"Peter Parry" <peter(a)wpp.ltd.uk> wrote in message

>>I don't see the connection between an ebay strike and 'duty or liability',
>
> The strike is a consequence of not completing the purchase. If there
> is no purchase to complete there can be no strike.

But that's the whole point of the strike...