ebay contract of sale - can I sue for breach?

[veryannoyed]

Hi all...

 

first of all, perhaps if there is a moderator reading, there is no 'legalities' section under the consumer action part of the forum, so apologies for posting under the 'bank legalities' bit - perhaps we could have a new section in CAG for general legal issues? This is a contract of sale legal query, and the principles of it could probably apply in all sorts of cases.

 

my query is this:

 

I successfully bid on an item on ebay. unfortunately shortly afterwards my computer suffered a glitch which rendered it out of use for a few days. On return to full working order, the ebay seller had filed an unpaid strike against me. So i contacted the seller explaining situation and offering of course to pay there and then, but seller had decided to sell to someone else.

 

Now it wasn't like it was months of no-contact from me, and the buyer was given my postal address by ebay and is able to get my phone number from ebay too (or from the phone book come to that) but didn't make any effort to contact me save for a couple of emails.

 

The seller also revealed that the item (an antique) was actually a lot better than described, meaning it was actually worth a lot more (probably 3 times) than I had won the auction for. I suspect this is the true reason for him backing out of the sale - he realised it had been sold too cheap. (I was the one and only bid on the item)

 

So my question is can I sue for breach of contract?

If so what can I actually claim for? If he has really sold the item then obviously a court can't force him to honour the contract and sell it to me? or can it? is the fact he no longer owns the item his problem? but practically what would happen?

Could I perhaps sue for the consequential loss of the 'profit' I would have gained had I bought the item and sold it on again for its true value?

 

I'm not sure what kind of compensation or whatever you can sue for under a breach of contract of sale?

 

Any thoughts or pointers in any direction would be appreciated!

[noomill060]

A seller on Ebay can start the non-payment process after 7 days. After the seller has filed a Non Paying Bidder complaint agianst you, Ebay then sends you an email warning you that this has happened and opens a dialogue channel for you to communicate with each other.

 

If you fail to communicate with the seller, or after you have responded to the complaint, the seller can end the transaction if they want to and have their selling fees refunded.

 

You would have had at least seven days to pay up and as you knew you had bids running, you should have made an effort to complete the transaction through another computer. All libraries have free internet access and Internet cafes are all the rage, I hear.

 

The item was at all times the property of the seller to do with as they wished, and they simply decided to sell to someone else, as it was apparent that you didnt wish to complete the transaction.

 

Sellers have no obligation to hold on to the widget longer than 7 days if they believe you are a non paying bidder.

[noomill060]

Unpaid Item Policy

 

Buyers automatically enter into a legally binding contract to purchase the item from the seller if they win the online auction-style listing or use the Buy It Now feature. eBay's Unpaid Item policy requires buyers to pay the seller for the items that they commit to purchase.

Sellers can file an Unpaid Item dispute with eBay for each of their items that were bought but not paid for. eBay will issue a strike on the account of the buyer who does not honour their obligation to pay (unless the buyer and seller mutually agree not to complete the transaction).

If a buyer gets too many strikes within a short period, their account will be suspended indefinitely. In some cases, limits may be placed on the buyer’s account in advance of suspension.

[noomill060]

In other words the seller could sue veryannoyed for Breach of Contract, but chose not to and sold the thing to a someone else.

[veryannoyed]

Thanks noomill - that seems to be ebay's rules and regulations, which most people who have ever dealt with ebay will agree shall we politely say 'differ' from the law of the land here and there

 

Is the '7 days to pay' law? and if so what law?

 

Does the seller not have to make 'reasonable effort' to contact the buyer?

 

He admits the item was wrongly described too

 

He does not have proper contact details on ebay (contrary to distance selling regs?) and certainly contrary to ebay rules.

 

How come in virtually all other cases of consumer law, the law seems to side in favour of the consumer - whereas ebay think they can make up whatever laws they like and are then judge, jury and administors of the punishment?

[veryannoyed]

Oh, and how can he sue me, when he has replied to my emails offering to pay him, but refusing, and stating the item is much better than described and he has decided to sell to someone else (presumably for a lot more money)

[buzby]

Ebay's rules, the conduct of some sellers and the law of the land are very different. eBay's assertion that your bid is a 'binding contract' is nonsense - it isn't. Similarly, a winning bidder has no sanction other than complaining to eBay if a seller doesn't complete the sale. The real issue here is I have had many buyers that disappeared for no doubt very genuine reasons, but if they don't complete, I'm left with paying eBay listing and final value fees for an item I still have. To avoid bad feedbacl, I'd offer to pay the seller's listing fees and chalk it up to experience. Taking him to court won't achiueve anything - irrespective of what condition it was in!

[noomill060]

veryannoyed:

 

"Is the '7 days to pay' law? and if so what law?"

 

No, of course not. It is the time Ebay specifies as reasonable for a buyer to contact a seller to make payment. You agreed to be bound by this when you agreed to the User Agreement.

 

After 7 days you have a further 7 days to work through the dispute with the seller, however if the seller no longer wishes to comunicate with you they may end the transaction at any time after you respond to the Unpaid Item Dispute, or if you fail to respond, may end the transaction in order to get a refund of the final value fees Ebay charged. (their cut of the deal)

 

You agreed to this when you clicked "Agree" in User Agreement.

 

"Does the seller not have to make 'reasonable effort' to contact the buyer?"

 

No. The winning bidder would have had an automated email from Ebay telling them that they are a winner and the sellers contact details. If the seller has chosen not to provide their details (as is their right) it is up to you, the buyer, to contact the seller by email.

 

"He admits the item was wrongly described too"

 

Not relevant in your case, you were obleiged to pay the guy at the time of the end of auction.

 

"He does not have proper contact details on ebay (contrary to distance selling regs?) and certainly contrary to ebay rules."

 

How do you know his contact details were incorrect? If you have evidence, report this to Ebay.

 

DSR doesnt apply to auction style internet sales.

 

"How come in virtually all other cases of consumer law, the law seems to side in favour of the consumer - whereas ebay think they can make up whatever laws they like and are then judge, jury and administors of the punishment?"

 

UK law ALWAYS overides unfair contracts, that said, its Ebay's train set and they decide who plays with it. Its just a venue.

 

Also, Ebay very rarely becomes embroiled in seller/buyer disputes. The deal is between individuals and up to them to work out problems.

 

If you had won one of my auctions and not paid within 7 days, I would also have hit you with a strike and negged your arris off!

 

What I then did with the item would be no ones business but my own.

 

"Oh, and how can he sue me"

 

He choose not to bother, but if he had more money than sense, he could have done but pragmatically, he decided it would be simply to get his fees back, give you a non payer strike and sell to someone else.

 

Whe I get a bargain, I make sure its paid for double quick so not to give the seller any chance to go back on the deal! On this occasion you provided the seller with the perfect opportunity to get of of your deal.

 

Just chalk it down to experience, make sure you pay promptly next time and abide by sellers terms and conditions.

[noomill060]

"How come in virtually all other cases of consumer law, the law seems to side in favour of the consumer "

 

Where on earth did you get that impression? Everyone, whether buyers or sellers have rights under the law.

 

Equally they also have responsibilities. One of these is to act reasonably.

 

When you were the winner bidder, your responsibility was to pay the seller as you had agreed to by bidding under his terms and conditions in accordance with the User Agreement.

 

Failure to do so put you in breach of contract.

 

If you try make your own rules up as you go along, dont be suprised if life bites on the bum.

[barracad]

In other words the seller could sue veryannoyed for Breach of Contract.

 

I'm not entirely sure that's correct. However, if it is then I believe the only thing the seller would be able to sue for would be for the listing fees he paid.

 

 

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[noomill060]

Indeed. In this situation a claimant has a responsibility to mitigate his losses.

 

Once Ebay had refunded his Final Value Fees, he would only be down the listing fee pus the time and the hasslement that veryannoyed had put him through, though it would be difficult, but not impossible, to quantify this.

 

If the seller had more money than sense he could then sue veryannoyed for this amount as damages for Breach of Contract- hardly worth the aggro.

 

So the seller wrote veryannoyed off as a waste of space and sold his piece of tat to someone else.

[noomill060]

veryannoyed wouldnt be able to sue the seller. What would he sue him for?

 

You can only sue for actual quantifiable loses. the item was the property of the sellr during the period that is was avilable for veryannoyed to pay for.

 

At no time did the item become veryannoyed's because title only passes to a new owner on payment, so he hasnt lost actually lost anything.

 

If he had paid for it and the seller failed to ensure its safe delivery, veryannoyed could sue for the cost of the item plus Loss of Opportunity, if he could persude a judge that he could have sold it for three times the what it cost him.

 

But ,as he never actually paid for it it wasnt his to resell for a hugh profit anyway, so that question doesnt arise.

 

The moral is "Pay up as fast as poss, before the seller realises its worth more!"

[veryannoyed]

As i said in the original post, unfortunately my computer and hence emails were out of action for a few days, I wasn't trying to avoid paying at all, just unfortunate circumstances and timing! Fortunately the sellers of three other items who were in the same boat honoured their part of the bargain when I contacted them as soon as I was back online and aware of the problem.

 

Had the seller not discovered the true value in the meantime, I'm guessing he would have completed on the deal and all would have been well.

 

It is all very well saying "chalk it up to experience" - I expect that is what I shall have to end up doing as ebay are not the slightest bit interested *ALLEGEDLY!* in the plight of buyers, from whom they make no money...

Then again, everyone in the land was chalking up unlawful bank charges to experience before a few people studied what the law actually said on the matter and decided to do something about it!

 

The important thing seems to be how long it was reasonable for the seller to have to wait for payment from me, and what reasonable steps he took to ask for that payment? If some law says somewhere that the onus is 100% on the buyer to contact the seller within X time period, regardless of whether the seller had full contact details freely available to the buyer or not, then fair enough, I hold my hands up, I'm completely shafted.

 

However, if some law says that buyer and seller should make reasonalbe effort to contact each other within X time, then as the seller had my full contact details and chose not to use any of them apart from the email which was obviously not working, and I could not use email due to a technical fault and had no other means of contact due to the seller hiding his other details, there might be a case to answer for?

 

I thought Distance Selling Regulations applied to all businesses (this is a business seller) regardless of how the item was actually sold? - ebay constantly maintain they are NOT an auction service, merely a 'venue' for buyers and sellers to meet. The seller offered the item at a price, I agreed to pay that price, as it happens there were no other bids or offers, so why do the DSR not apply? ebay, as they constantly state, have nothing to do with the actual 'sale contract' - they are not auctioneers or agents or dealers or anything.

 

I know the law on proper auctions differs from a standard shop type sale, but as everyone signs up to ebays terms agreeing they are not an auction but merely a venue for buyers to meet sellers, does anyone know what laws actually apply to ebay sales between a business seller and a private buyer?

[veryannoyed]

I understood from contract law that you could sue under breach of contract for an action rather than financial compensation. In other words I could in theory sue to force the seller to complete the contract (IE give me the item in exchange for my money)

 

It is something about being put in the position you would have been had the contract not been breached.

 

I gather this method is most commonly used for breach of contract on sales of land or property - a court can force the owner of the land to sell for the price agreed in the contract that he/she has breached by refusing to sell the land after contracts have been agreed.

[noomill060]

"As i said in the original post, unfortunately my computer and hence emails were out of action for a few days"

 

Assuming the seller believed you, this wouldnt have prevented you from using another computer.

 

If I heard this from a buyer after 7 days I would think it ws a bit too convienient, like the proverbial cat walking across the keyboard, clicking and confirming a Buy it Now!

 

Your computer problems are not the seller's problems. All he wants is to sell his tat.

 

" I expect that is what I shall have to end up doing as ebay are not the slightest bit interested"

 

No. Why should they be? You failed to pay up and cost them money because they had to refund the seller. Non-paying bidders are the spawn of Satan as far as Ebayers are concerned. No one is in the slightest bit interested in your problems why you cant pay, the point is, you didnt pay.

 

"The important thing seems to be how long it was reasonable for the seller to have to wait for payment from me, and what reasonable steps he took to ask for that payment?"

 

A week seems a reasonable time for anyone to make payment, dont you think?

 

Doesnt take long to click a payment on Paypal, or to write a cheque while printing off the post-auction winners email from Ebay, placing them in an envelope, licking stamp and posting.

 

I dont chase payments, I presume that because the person bid on my tat, they intend to pay for it and are able to read the payment and contact details included in the automated email that ebay send them at the end of auction.

 

If I dont recieve payment within 7 days, I start the NPB process to at least get my FVF fees back. This usually triggers an apologetic email from the forgetful buyer who sends me payment ASAP. If I get messed around by a muppet making excuses I end the transaction, the muppet gets a strike and a neg and I get my FVF fees back.

 

Thats the way Ebay works. Why should sellers chase? The buyer is over 18, knows how much he owes me, when I expect it and where to send it.

 

 

DSR regs only (possibly) apply to stuff bought from traders with the Buy It Now option. No one really seems to know, but this seems about right.

 

"does anyone know what laws actually apply to ebay sales between a business seller and a private buyer?"

 

A lot depends on the terms of sale of the trader or individual you are buying from. These are the terms stated on the listing page.

 

If they are lawful and fair, they represent the terms under which that person will do business with you. If you dont like them, click the back button, but if you place a bid, you are bound by these terms, as is the seller.

 

If your stuff doesnt turn up and the seller wont refund or replace you can sue them in the County Court.

 

If you fail to pay up, they can sue you, but they never do, because its not worth it and its dead easy to find another buyer. (Its pretty much a seller's market in many ways, the exact opposite of Real Life!)

 

With a potential market of a 100million and growing everyday, its not worth it.

 

The law on land and property is quite different from antiques.

 

Can you not see that your seller is the injured party here, not you?

 

You agreed to pay for something, but didnt, for whatever reason, the reason is immaterial unless you were able to appeal to the seller's better nature.

 

In other words, you were in Breach of Contract, not the seller.

 

The seller released you from that contract when they clicked "I no longer wish to comunicate with this member. End transaction"

[veryannoyed]

No, I have offered to pay and the offer is still open, HE refuses to sell and now refuses to communicate.

 

There were NO specific terms of sale in the listing. There was NO time limit on payment stated (hence me trying to discover if there is any law of guideline covering this) There were NO proper contact details in the listing or any emails, or indeed have ebay got any (apparently according to the contact details ebay's dispute dept sent me)... I have now tracked the seller down to 2 addresses and assorted phone numbers by various means outside of ebay. I, or my representatives, shall be visiting in due course... more than one way to skin a cat

 

There is no need for anyone to believe anything on my part - it all can be proved from IP logs

 

The only thing I am trying to discover is what laws, if any, ebay transactions are subject to. With the greatest of respect all you are doing is defending ebays suspect (to say the least) trading practices "because ebay is big, they can get away with it... there's always another mug around the corner to buy the tat ebay get commission off of, so why bother to defend a lowly buyer"

 

This is just the same as "we're a bank, we're big, so we will charge what we like, who's going to stop us? - so we loose a few customers, but there's plenty more mugs..."

 

If ebay transactions are exempt from all consumer laws, as you seem to be suggesting, that is fantastic... I have several other accounts, so the apparent lack of any governing law gives me carte blanche to commit fraud?? - wonderful! - I can't believe this is the case.

[noomill060]

When did the auction end?

 

Have you actually been given a non payer strike?

 

Did you respond to the NPB dispute at all?

 

How long do you think it is reasonable to keep a seller waiting for payment?

 

(Given that Ebay allow at least 7 days to make payment, do you think this is unreasonable?)

 

Your argument is with the seller, not Ebay. Ebay havent sold you anything.

 

Have you thought of posting this question on the Payments and Postage forum in Ebay's community section? Lots of help available there.

 

eBay Forums: Payments & Postage Board

[noomill060]

Yes, Ebay will have their name and address for billing purposes.

 

"I, or my representatives, shall be visiting in due course... more than one way to skin a cat :wink:"

 

And what will you or your representatives be doing, apart from harrassing him and putting yourself in danger of arrest?

 

"The only thing I am trying to discover is what laws, if any, ebay transactions are subject to."

 

English Law.

 

"I have several other accounts, so the apparent lack of any governing law gives me carte blanche to commit fraud?? "

 

...until English policemen come knocking down your door under English Law.

[noomill060]

(Assuming you live in England. Please subsitute "Scottish", "Welsh", or "Ulster", as applicable.)

[veryannoyed]

From Wikipedia, the free encyclopedia

 

(I know it might not be the best source, hence the posting here for comment)

 

In the law of remedies, an order of specific performance is an order of the court which requires a party to perform a specific act. While specific performance can be in the form of any type of forced action, it is usually used to complete a previously established transaction, thus being the most effective remedy in protecting the expectation interest of the innocent party to a contract. It is the opposite of an injunction.

Under the common law, specific performance was not a remedy, with the rights of a litigant being limited to the collection of damages. However, the courts of equity developed the remedy of specific performance as damages often could not adequately compensate someone for the inability to own a particular piece of real property, land being regarded as unique. Specific performance is often guaranteed through the remedy of a writ of possession, giving the plaintiff the right to take possession of the property in dispute. However, in the case of personal performance contracts, it may also be ensured through the threat of proceedings for contempt of court.

Orders of specific performance are granted when damages are not an adequate remedy, and in some specific cases such as land sale. Such orders are discretionary, as with all equitable remedies, so the availability of this remedy will depend on whether it is appropriate in the circumstances of the case.

There are certain circumstances where an order of specific performance would not be granted. Such circumstances include:

1. specific performance would cause severe hardship to the defendant
   
2. the contract was unconscionable
   
3. the claimant has misbehaved (no clean hands)
   
4. specific performance is impossible
   
5. performance consists of a personal service
   
6. the contract is too vague

Additionally, in England and Wales, under s. 50 of the Supreme Court Act 1981, the High Court has a discretion to award a claimant damages in lieu of specific performance (or an injunction). Such damages will normally be assessed on the same basis as damages for breach of contract, namely to place the claimant in the position he would have been had the contract been carried out.

[/url]

Examples

 

In practice, specific performance is most often used as a remedy in transactions regarding land, such as in the sale of land where the vendor refuses to convey title.

However, the limits of specific performance in other contexts are narrow. Moreover, performance that is based on the personal judgment or abilities of the party on which the demand is made is rarely ordered by the court. The reason behind it is that the forced party will often perform below the party's regular standard when it is in the party's ability to do so. Monetary damages are usually given instead.

Traditionally, equity would only grant specific performance with respect to contracts involving chattels where the goods were unique in character, such as art, heirlooms, and the like. The rationale behind this was that with goods being fungible, the aggrieved party had an adequate remedy in damages for the other party's non-performance.

 

 

**************

 

Would seem to apply here as the chattels are unique rather than fungible (easily exchangeable for another similar) - the item in question is an antique.

 

I've also checked the definition of 'unclean hands', a short delay in payment doesn't seem to count as 'unclean hands' - however selling the goods to someone else admitting they are much better (and therefore more valuable) than originally thought would seem to constitute 'unclean hands' (the unlcelan hands argument can be applied to either party in the case)

 

 

... who said anything about harrasment? I merely intend to introduce myself, and establish I have the correct address for future correspondence as it is not available on ebay. The three very large gentlemen in nice suits are my personal assistants.

 

NPB dispute? - didn't get any of those... just a "you have been given an unpaid strike"

 

How long is reasonable? I don't know... that's what I am trying to find out... if you agree to buy a house, for example, 8 weeks is considered a perfectly reasonable time to pay. I have bought at real life auctions where the time to pay is given anywhere between 3 - 14 days (obviously you can't take goods until payment cleared) If ebays terms say as you suggest "at least 7 days" then I would have thought 14 days would be a reasonable maximum. I would have thought it reasonable for a seller to try an alternative means of contact when it was clear that email wasn't working and he had postal address and telephone number. But reasonable is only one persons opinion is it not? This is the whole point of trying to discover if there are any consumer guidelines or laws or codes of practice or whatever that give a prescribed time.

 

Were it not for the fact the seller admits the item was much better quality than originally thought and has sold it to someone else, I would just 'chalk it up to experience' - however, I feel there is some malice on the part of the seller. He is not out of pocket at all, in fact is most likely to have sold the item for far more than my successful bid. In which case I don't think it fair for him to post an 'unpaid strike' - he has not lost out at all, I have. I should be allowed to post an 'uncompleted sale strike' - but of course ebay doesn't have these as sellers are never wrong in ebay's eyes (allegedly)... the sellers produce ebays profits, after all, so how could they be wrong? Why bother about one or two buyers? as you say there are 100 million more of them registered.

[noomill060]

"NPB dispute? - didn't get any of those... just a "you have been given an unpaid strike"

 

veryannoyed- A seller cannot issue an Unpaid Strike without opening a non payer dispute. You would have been sent notification of this and had 7 days in which to respond to this.

 

From Ebay:

 

Report an Unpaid Item dispute: eBay will send an Unpaid Item reminder to your buyer, encouraging them to complete the transaction. If the buyer still does not pay, you can use this form to file for a Final Value Fee credit.

 

 

 

"If ebays terms say as you suggest "at least 7 days" then I would have thought 14 days would be a reasonable maximum"

 

Your opinion is not relevant. All Ebayers agree to be bound by the terms and conditions of the site by clicking "agree" when you joined.

 

If Ebay T&C give allow sellers to file for their fees back as a result of non payment by sellers, and in the event of a dispute, a further 7 days to resolve that dispute, then that is what you agreed to.

 

Some disputes can be reported immediately after the item closes, but most require a 7 day waiting period. You cannot report a dispute if more than 45 days have elapsed.

 

How long should I wait for the seller to contact me?

 

Buyers and sellers should generally contact each other within three business days of the end of a listing. It is fine for you to make the first contact with the seller, via the seller’s email address, which is included in the End of Auction email.

 

If you can't contact the seller by email, or you don't receive a response, you should request their contact information and call them. (You can only get another member's telephone number if you're involved in a transaction with them.)

What if the Seller doesn't reply?

If the seller doesn't give you the information you need to complete the sale, or if they back out of the transaction, they are in breach of eBay rules. Please report the seller.

Note: eBay's Contact Information Policy states that members must keep their eBay contact information up to date at all times. If you find a seller's contact information is incorrect, report the seller.

 

Buyers automatically enter into a legally binding contract to purchase the item from the seller if they win the online auction-style listing or use the Buy It Now feature. eBay's Unpaid Item policy requires buyers to pay the seller for the items that they commit to purchase.

Sellers can file an Unpaid Item dispute with eBay for each of their items that were bought but not paid for. eBay will issue a strike on the account of the buyer who does not honour their obligation to pay (unless the buyer and seller mutually agree not to complete the transaction).

If a buyer gets too many strikes within a short period, their account will be suspended indefinitely. In some cases, limits may be placed on the buyer’s account in advance of suspension.

 

You had 7 days to pay, you didnt pay, you failed to act within the terms and conditions of the User Agreement which you agreed to . You are plain and simple, a non-paying bidder.

 

In short, you yourself have misbehaved and do not have "clean hands"

[noomill060]

However, if the seller failed to provide you with his contact details you should report them to Ebay.

[noomill060]

"... who said anything about harrasment? I merely intend to introduce myself, and establish I have the correct address for future correspondence as it is not available on ebay. The three very large gentlemen in nice suits are my personal assistants."

 

Dont forget that he also has YOUR contact details to hand to the Police!

[buzby]

Actually - the buyers is seriously disadvantaged here - a seller can open a dispute, AND close it, giving a strike immediately. When the buyer follows the route to appeal it, received an automated message saying 'Work it out with the Seller - he can remove it!.

 

Classic!

[noomill060]

Buyers are only seriously disadvantaged if the buyer doesnt pay up.

 

Bidding on Ebay is a promise to pay the seller within the terms and conditions of the User Agreement.

 

If you renege on this promise, you are in breach of contract.