From: bcc97 on

Alison Hopkins wrote:
> "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

I think that Sid was looking for the legal position. Which is -- if
the item is covered by DSR, then he can cancel. The right to cancel
will expire 7 working days after delivery or, if the seller failed to
comply with the information rules, 7 working days after they comply
(maximum 3 months and 7 working days). If he cancels, he's entitled to
a full refund, including outward postage costs. He's also under no
obligation to return the item at his expense or at all -- merely to
make it available for collection (unless the seller made it a contract
term that he had to return the item).

The item will be covered by DSR if the seller is a business and the
item was bought at a fixed price. The item may be covered if it was
bought auction-style.

Of course, if Sid views himself as a charitable organisation whose
objective is to prop up the profits of sellers who ignore the law, then
he should just follow your advice, relist it and swallow the loss.
Because of the nature of clothing, all reputable mail order clothing
companies allowed returns before they were required to do so by law. I
doubt that Sid will use this seller again.

Your original criticism of Marcus was that he was using DSR for
something which it wasn't intended to cover (I actually disagree, and I
think that the matter was similar to the scenario which Peter Parry has
described here -- misleading, whether or not illegal). Here, Sid wants
to use the DSR for something which, even by your admission, it was
intended to cover. Are you really saying that he shouldn't use it,
even in these situations?

From: bcc97 on

Peter Parry wrote:
> >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.

And even if it weren't a financial penalty and/or a 'liability' under
Reg. 25 (and I can see some difficulty with the semantics here), any
term allowing a 'strike' for DSR cancellation would still amount to an
unfair term under the unfair terms regulations, specifically as a
non-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.

Repeated sales of the same type of item do not in themselves prevent
those sales being auctions. Certainly if the starting price is
relatively high and the items are widely available at similar prices,
there's unlikely to be any auction. But if the starting prices are low
and there is at least some finite quantity of items to be sold, then
it's quite possible that they are being sold by auction.

From: Peter Parry on
On Wed, 06 Dec 2006 01:24:57 GMT, "Sid" <nospam(a)nospam.co.nospam>
wrote:

>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.

Not having an eBay shop is irrelevant. A large number of eBay
traders think they are private sellers when in fact they are trading.
A smaller number know they are trading but try to present themselves
as private sellers to deliberately avoid their obligations under
consumer law.

There isn't a single black and white definition of trading and if it
comes to a court it is decided as a "matter of fact", in other words
the court looks at the specific details and decides that if it walks
like a duck and quacks like a duck - it's a duck.

Broadly courts favour the buyer (as they are seen as being in the
weaker position during any transaction) and if the buyer claims the
seller is trading it will be for the seller to prove they are not.

At around 400 items sold, particularly in 12 months or less, a seller
would find it difficult to demonstrate they were not trading. If all
the items were similar (eg clothing) and new it would be very
difficult to prove they were not trading.

>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??

It may have been right or wrong. If the sale was a private sale it
was correct. If the seller was trading it wasn't. If you come up
against a seller who continues to insist they are private sellers
despite evidence to the contrary then apart from taking it to a court
(quite simple using moneyclaim online) there isn't much you can do.
--
Peter Parry.
http://www.wpp.ltd.uk/
From: nick on

"bcc97" <bcc98(a)stork.plus.com> wrote in message

>> Of course - after three they can no longer trade, that is a financial
>> penalty.
>
> And even if it weren't a financial penalty and/or a 'liability' under
> Reg. 25 (and I can see some difficulty with the semantics here), any
> term allowing a 'strike' for DSR cancellation would still amount to an
> unfair term under the unfair terms regulations, specifically as a
> non-financial penalty.

But non paying bidders are a waste of everyone's time, there has to be some
mechanism to discourage them.


From: Alison Hopkins on

"bcc97" <bcc98(a)stork.plus.com> wrote in message
news:1165397435.065046.142350(a)j44g2000cwa.googlegroups.com...
>

>
> Your original criticism of Marcus was that he was using DSR for
> something which it wasn't intended to cover (I actually disagree, and I
> think that the matter was similar to the scenario which Peter Parry has
> described here -- misleading, whether or not illegal). Here, Sid wants
> to use the DSR for something which, even by your admission, it was
> intended to cover. Are you really saying that he shouldn't use it,
> even in these situations?
>

If it's a business, then it's legal enough, so it's up to him what he does
and he must make the decision. If it isn't, then no.

But I do still think that there is an obligation on buyers to check what
they are doing. What gets forgotten in all of this is that returns on the
basis of I-don't-like-or-want-it cost businesses - online or whatever -
money. Often, the goods are not saleable as new, and there is also the
return cost. Now, in the end, guess who actually pays for all the returns?
And yes, the other side of it is that if you *do* have a decent returns
policy, it may get you more business.

I tend to live with the results of my own mistakes. Others may choose not
to. Their choice. But there are always consequences, which I wish people
would think through. (Not aimed at the OP, by the way, he sounds pretty
sensible. If I were him, I'd relist the thing.)

Ali