Faulty ebay item, ebay tell me to return but invalid address and ebay won't help

[ryansss]

I bought a car brace which is basically designed to stiffen up the front of the car. Item arrives and instead of being a solid brace, it's broken and is being held together by clear tape!

 

The seller is a car parts specialist so I'm sure they are aware it's not meant to be like that. I emailed, they ignored. I raised the problem with ebay and the seller agreed to refund as long as I returned.

 

Items large so I didn't use a tracking service, but I got a receipt and insured the package. Three days later the item is returned to me by royal mail with a sticker saying 'Address gone away'.

 

I inform ebay and the seller claims there is nothing wrong with the address. I called ebay and customer services sent me a blank email to respond to with proof that I had posted the item. I sent images and nothing more happened. I then contacted ebay yet again and they asked for a tracking number and to send the item back. I tried to escalate the claim and ebay refused to refund me as the seller has agreed to providing I send the item back?

 

I'm at a loss. Item was 100 quid, return via standard parcel was 9 pounds and to send recorded was 18 pounds!!! It's money I won't get back and royal mail claim it's not a valid addy so I can spend more and not get it back.

 

Is there anything I can do? I feel ebay are less than helpful and unfortunately I used paypal funds and not a card so I can't even claim from the card provider.

[blitz]

Do you have any address for the company or just this one? I would take it out of ebay demanding THEY arrange for pick up of the item, and whether they have or not you expect a refund or the item.

 

This only applies if they are a business not a private individual. After 14 days send them a Letter Before Action (which states that you intend to take them to small claims court). (Below still applies if they are marked as a power seller and therefore a business in ebay)

 

Did you "buy-it-now" at all as if you did you get some more rights as well

Edited March 25, 2010 by blitz

[ryansss]

Yes was a buy it now.

 

They have an ebay shop although I can't see them listed as a power seller.

 

Their user id is tfrallyesport

 

I just think they were cheeky in sending it out and why would Royal mail return it? Could be a royal mail error, but surely ebay should do something before I pay out yet again? I've double checked the post code and address details and they were exactly what the seller had provided.

[blitz]

Awesome if its buy it now you also get DSR rights

Send the following recorded if you can:

 

Dear Sir/Madam

 

Having received the car brace from you having purchased it through the internet site ebay, the product delivered is damaged and therefore not fit for purpose as outlined in the Sales of Goods Act 1979 (As amended). In accordance with this act and the Consumer Protection (Distance Selling) Regulations 2000; I require a full refund of the full cost no later then 30 days from informing you that the product was faulty and the intention to return the product to you. This must be done regardless of whether the item has been picked up or not.

 

Due to my required refund, I will make the product available for collection by yourselves or a courier you assign. Please notify me in advance if and when a collection will be made.

 

Please be aware that this is in accordance with my legal statutory rights, unfortunately should I not receive a refund or satisfactory response I will have no option but to consider further legal action as well as informing trading standards of a failure to uphold my rights.

 

Yours Faithfully

 

Ryansss

[ryansss]

Thanks for your help that's ace, I'll send that out tomorrow.

 

So given the response (or lack of) from seller so far and ebay's reluctance to help how would I go about taking things further should I not get given the refund?

[blitz]

If they don't respond, you would need to send what is called an LBA, then look at court summons but shouldn't come to that

[perplexity]

Re.

 

This only applies if they are a business not a private individual.

 

The Sale of Goods Act applies to any contract of sale of goods made on or after (but not to those made before) 1st January 1894, so

 

Unless otherwise agreed, where goods are delivered to the buyer, and he refuses to accept them, having the right to do so, he is not bound to return them to the seller, but it is sufficient if he intimates to the seller that he refuses to accept them.

http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1979/cukpga_19790054_en_4#pt4-l1g41

 

It is unfortunate that ebay brainwashes it's members into believing that a buyer is not entitled to be refunded if the goods are not returned, and that a so called "private seller" should somehow be excepted from the statutory duty, because a consumer is entitled by the law to a good deal more than that.

 

8)

[blitz]

Its more due to it being an Auction then anything else, some exemptions apply in auction type sales. For instance DSR doesn't apply if an item is run in an auction format, hence the request if it was buy it now or not above.

 

In this case it does not matter, it was a Sale not an auction and therefore ALL rights are upheld.

[perplexity]

The UK Distance Selling Regulations cite an exception for a contract "concluded at an auction", which eBay is not.

 

Transactions concluded on eBay are not auctions, otherwise section 57 of the Sale of Goods Act would apply whereby "a sale by auction is complete when the auctioneer announces its completion by the fall of the hammer, or in other customary manner; and until the announcement is made any bidder may retract his bid", which is not what happens on eBay, where the right to withdraw a bid is deliberately restricted.

 

Here again, it is unfortunate, the way that eBay deliberately deceives the members. On the one hand they allow the members to believe that a buyer is not entitled to cancel, notwithstanding the legal precedent where a seller sued a buyer on the strength of eBay's advice but lost, albeit that eBay continues to insist that eBay is not an auction when it suits them, to avoid the legal responsibilities of an auctioneer.

 

P.S.

 

Elsewhere in Europe, by the way, it is clear that eBay is not excepted, because the implementations of particular states feature no exception for any auction, or else their terms were especially designed to only apply to a public auction. In Luxembourg, where eBay is registered, the law defines that to qualify as an auction it is the broker who sells, which eBay is not.

 

Edited March 28, 2010 by perplexity
P.S.

[blitz]

If you could just let the OFT know that the booklets and information they provide on online auctions is incorrect then I would appreciate it...

 

2.16: http://www.oft.gov.uk/shared_oft/business_leaflets/general/oft698.pdf

 

So I guess the OFT are also deceiving us as well

 

If you wish to debate the matter on the binding of DSR and SGA to internet auctions then I invite you to create a thread in the general knowledge section of the site. Otherwise as this matter refers to a SALE and not an auction, the topic is redundant and I see little point in flooding this thread any further.

Edited March 28, 2010 by blitz

[perplexity]

If you could just let the OFT know that the booklets and information they provide on online auctions is incorrect then I would appreciate it...

 

2.16: http://www.oft.gov.uk/shared_oft/business_leaflets/general/oft698.pdf

 

So I guess the OFT are also deceiving us as well

 

If you wish to debate the matter on the binding of DSR and SGA to internet auctions then I invite you to create a thread in the general knowledge section of the site. Otherwise as this matter refers to a SALE and not an auction, the topic is redundant and I see little point in flooding this thread any further.

 

 

Strangely enough the advice from the OFT is perfectly correct, but all too easy to misconstrue by guessing instead of thinking it through with a due regard to the legislation.

 

Correctly understood, when a private private individual who is not acting for business purposes sells at an auction, he would not be covered by the DSRs, because an auction broker is not obliged to reveal the identity of the person with the goods for sale, the inference of which is that there is no enforceable contract with the person for want of his identity; the responsibility falls to the broker instead, which is not what happens on eBay.

 

The OFT also point out that "How a contract is concluded determines whether the method of sales an auction and so falls outside the DSRs" which is exactly in line with the relevant precedent which found that a bid for an eBay auction is not the conclusion of a contract of sale; the contract is concluded by the buyer's acceptance of the seller's eventual offer, not by the seller's acceptance of the buyer's offer which is what would happen at an auction.

 

The relevant part of the OFT's advice is therefore this

 

How do the DSRs apply to auction sites on the internet?

 

2.19 This depends on specific circumstances, for example:

* the contractual relationship between the website provider and

the seller

* whether the seller is acting as a supplier within the meaning of

the DSRs

* whether the seller is operating under an organised distance sales

or service provision scheme, and

* whether the buyer is a consumer within the meaning of the DSRs.

which follows from objective (10) of the EU Distance Selling Directive:

 

EUR-Lex - 31997L0007 - EN

 

Given then that the relevant terms of eBay User Agreement apply equally to all the eBay members and all the listings it should not be so problematic to expect that the law would treat them all the same, as is the case if a dispute proceeds to the eBay or Paypal resolution facilities, for the very same reason: The same contractual terms apply.

 

 

If you want to have a go at the OFT the more pertinent imputation would be the cheek they have to complain to the EU Commission that the lack of a definition of an "auction" is troublesome, never mind that the UK government sat on its hands for the past ten years, failing to settle the issue, as could easily be done by providing a statutory definition of its own, as is the case elsewhere in Europe, where those in charge had the sense to do so, not to mention a legal precedent provided by the German High Court which the OFT is already obliged by the Enterprise Act to enforce.

 

[blitz]

If you wish to debate the matter on the binding of DSR and SGA to internet auctions then I invite you to create a thread in the general knowledge section of the site.

 

As the point is not relevant to this case

[ryansss]

Right, the seller has responded via email the following:

 

"we will refund you once the item is returned and pay the postage, but you must remove the negative feedback from ebay 1st or we cannot do anything for you.as regards the legal side re long distance selling laws, you must return the item in 14 days. which you have not, we have not received any evidence of any damage only your say so, the item was in perfect condition when listed and sent, so could only have been damaged in the post or swapped, but all our items are security marked so if it has been swapped we can tell once checked for the markings.

 

we are not always at our unit to sign for parcels etc, but the post office should leave us a card if not in, mark the parcel foa of tf rallyesport,the workshop, low house farm, wigton, cumbria, ca7 8ap."

 

I left feedback stating the items faulty and seller is not refunding so looking at legal action.

 

I'm not happy with there response. They were alerted the item was faulty by me through ebay as soon as item arrived. Any more input from you guys?

[perplexity]

You should make your mind up about your approach to the issue.

 

The Distance Selling Regulations grant the unconditional right to be reimbursed but the seller would also be let off the hook about the condition of the goods because " Except as otherwise provided by these Regulations, the effect of a notice of cancellation is that the contract shall be treated as if it had not been made." which is not what your negative eBay feedback appears to do.

 

A cancellation under the DSRs would rather refund eBay end price fee to a seller by way of the "mutual" cancellation facility which, if I am not mistaken, also eliminates the feedback. eBay keep on changing their practice so it's difficult to keep track of.

 

Or would you fancy the burden of proof, to prosecute the criminal offence of miss-describing goods?