PayPal / Private Sales / Consumer Rights

[efunc]

Hello all, new to the forum and straight in with a conundrum. To cut a long story short I bought an item with PayPal for £60 off a private seller on a forum on December the 14th and it hasn't arrived 2 months later. The seller hasn't responded and after filing a complaint paypal decided in my favour.

 

All good so far, HOWEVER, they tell me that they're unable to recover any funds from the seller's account. As an after thought they advise me that they will try to recover the funds if they become available in the seller's account in the future, but the matter is now closed! This obviously isn't very proactive of Paypal. If a VISA payment of mine was defrauded in this way VISA would pay out themselves and then take action on the seller later. ie, pursuing them for the money via courts, bailiffs, legal action, etc. Paypal state in the PayPal User Agreement that recovery of funds associated with a Buyer Complaint cannot be guaranteed but is on a 'best effort' basis. ie they will do nothing!

 

The seller in question informs me that the item has been lost in the post, but that he did not personally loose it and will not issue a refund and as far as he is concerned the matter is closed (he didn't keep any receipts and cannot claim the standard £34 compensation from the royal mail, nor did he send it recorded delivery!).

 

My first question is, does the Sale and Supply of Goods to Consumer Regulations 2002 apply to private sellers? According to this "the goods remain at the seller’s risk until they are delivered to the consumer. Thus the supplier is liable should the goods not arrive."

 

Furthermore "If no date is specified, delivery of goods must be within 30 days of the order. If they don't arrive you are entitled to cancel the order and receive a full refund." If this applies to him I can pursue him through legal action.

 

My second question relates to PayPal's position. Apparently "The Distance Selling Regulations provide additional protection e.g. the card company must refund you if your credit, debit, or store card is used fraudulently and, in many cases in the EU, the law allows you time to change your mind, within seven working days of the delivery, and get a refund.” Does this mean that PayPal are in fact liable to recover my funds and are in violation of the EU The Distance Selling Regulations??

 

Thanks all for reading this far. All advice is welcome.

[rory32]

The seller in question informs me that the item has been lost in the post, but that he did not personally loose it and will not issue a refund and as far as he is concerned the matter is closed (he didn't keep any receipts and cannot claim the standard £34 compensation from the royal mail, nor did he send it recorded delivery!).

 

Really that's his problem. Although your statutory rights are reduced buying from a private seller they are entering into a contract. Part of that contract is that they supply the goods and the goods are as described. Really I think your best course of action would be to send a Letter Before Action informing the seller that if they don't give a full refund within 14 days you will file at court against them. Any fees and costs incurred in doing this will be added to the amount currently owing.

[efunc]

thanks for your reply. What aspects of my statutory rights specifically are reduced in a private sale? Are the bullet point's I reproduced in my OP applicable?

 

I'm initially trying to avoid direct legal action, not least because I don't know the sellers full name and address, as is common when dealing through Paypal. I have asked for them from Paypal but they won't supply them without a court order. And I don't know how to get that.

[efunc]

so, does anyone know what liabilities a private seller has, and if they're the same as a business trader with regard to an item not arriving in the post? thanks!

[Bookworm]

Yes, his liability is the same. As for his name and address, check his feedback, see if he has been a buyer at some point and try and contact the seller, explaining the situation, and see if they would be willing to help you by givng you the guy's details?

[efunc]

Great, thanks for that. Actually this wasn't an ebay sale. He is/was a member of a private forum, much the same as this one. But I'm getting closer to finding his details.

 

I wonder if you'd be able to comment on my second point? Would you say that PayPal are obliged to provide a refund under the provisions of the Distance Selling Regulations? Their T&Cs claim otherwise.

 

(In fact, just today I discovered that my HSBC debit card had been stolen and three purchases made. HSBC immediately refunded the payments when I informed them, contrary to my expectations. So maybe there's room to negotiate?)

[Bookworm]

I would say not, as it wasn't a fraudulent activity, you did give permission to have the funds taken off your card, and the transaction did take place, the dispute arises at a later stage for a different reason.

[efunc]

yes, good point. thanks for the clarification.

[efunc]

Thanks for all the help with this so far. The good news is that I've finally tracked down the sellers real name and address through a couple of days of internet searches. Yay!

 

My next question is, in the worst case scenario, could I end up loosing even more money by taking him to court? i.e., when the court finds him liable (which they will) and he chooses to ignore their finding, am I just left with the moral high ground and an empty bank balance??

 

thanks again!

[Bookworm]

Well, there is the risk that he will not pay up, in which case it would cost you extra to get a warrant of execution (bailiffs) to get your money and from bitter experience, the bailiffs don't try very hard on small private to private debt. On the other hand, if he doesn't pay up, he will end up with a CCJ for 6 years and unless he is a serial debt dodger with no credit scoring to speak off, he won't want that over his head.

 

My advice would be to fill in the N1 ready for filing, and send him a copy advising him that unless he pays up within 14 days, the next communication from you will be the same, but through the courts.

[efunc]

What an excellent strategy! Thanks for the advice, I'm pretty sure that will do the trick. I'll report back with a happy outcome in the near future hopefully.

 

First, to read up on what an N1 is...

[IdaInFife]

With paypal you should still have had £150 protection with an Item not received dispute as long as you claimed within 45 days of your original payment.

 

So did you try and make a cliam after 45 days?

 

Also how did you fund the paypal payment?

 

Idax

[efunc]

Funded from my existing Paypal funds, claim filed after 30 days. However, even though Paypal decided in my favour they told me that the seller doesn't have any funds in his account and they will not pursue him for it. Or at least it's only on a 'Best Effort' basis. Alas the £150/£500 guarantee is only valid for items bought on eBay, not other PayPal transactions! I hadn't realised there was a distinction so always presumed I was safe by paying with PayPal. Never again.

[publicenemyno1]

PayPal always look after themselves - at least from my experience. I rate them just one notch above NCO Europe. Oh hang on, who do PayPal use to intimidate buyers who've had their balance taken -ve by [problematic]?...

 

Trying to even communicate with them is like banging your head against a brick wall; I would go the claims route personally.

 

Slightly off topic, I am surprised that PayPays new status as a bank has not attracted a significant amount of litigation...

[IdaInFife]

ok just checked for standard purchases and was wrong no guaranteed cover.

 

Are you sure the seller is not a business selller?

Can you provide id?

 

 

Idax

[efunc]

ok just checked for standard purchases and was wrong no guaranteed cover.

 

Are you sure the seller is not a business selller?

Can you provide id?

 

 

Idax

 

He is definitely a private seller, if that makes a difference. (Does it?) He's a member of another forum I'm on. What ID are you refering to? thanks.

[gyzmo]

Whether he's a private or business seller will determine what rights you have. With private sellers, they are generally limited to damages in fewer circumstances.

 

whether he is a business or private seller is a matter of fact. Just calling yourself a private seller does not make you one. Is he selling other items online? Does he have more of the same item? Basically, it comes down to the nature and frequency of his transactions as well as elements of profit.

[efunc]

No, he is definitely a private seller. I know that as a fact. He's been on the same forum I've been on for 5 years.

 

In which case I'm now confused as to whether I have any rights at all if the item I paid for didn't arrive! He has £60 of my money. I know he sent it, but it was lost in the post. He said he kept the postage reciept to begin with but later he couldn't find it. I have a record of all our correspondence and Paypal transaction. He's now broken all communication with me.

 

So will the case be thrown out of court??