eBay Issue

[darkest_dawng]

On 11th April I won a conservatory on eBay, the listing gave the dimensions and stated that "All the glass and celing panels are undamaged" on 26th April my husband and friend went to collect the conservatory and handed over £200 in cash to the seller on arrival.

 

After 2 hours of packing the panels onto the back of a 3.5 tonne lorry it became apparent that the dimensions were wrong and one of the glass panels had a crack in it. My husband let the seller know that the conservatory was no good for us, and that we would have to leave it - the seller agreed and then went to drop his son off at a cricket match, he did not return before my husband left.

 

On Monday I sent the seller an e-mail asking him politely to arrange to return our money, this is the reply we received:

 

I’m afraid it’s not that simple. Legally you have bought and paid for it and it’s therefore yours to re-sell if you wish. If you want I will relist it under consignment from you and will send you back your payment less ebay’s commission once I have sold it and provided it sells for at least what you bought it for. I propose that if it sells for more than you paid I will split the difference with you after deducting ebay’s commission.

Alternatively you can relist it yourself and sell it and hopefully make a turn on it but I will need you to take it away by next Saturday 3rd May. I have a lot more builders arriving on site on the 5th of April and will need the space.

Please let me know what you want to do as I want it re-listed either by you or by me asap.

I opened an Item Not As Described dispute on eBay and also sent the seller this letter.

 

Nowhere in your item description did you state that an articulated or 7 tonne lorry would be required to collect the item, and therefore the item was misrepresented - this is covered by eBay's Seller Non-Performance policy. I agree that this is an unfortunate situation, however if you do not return our money then we will have no alternative but to make a complaint to eBay's Trust and Safety team and/or take legal action through the small claims court to recover our payment.

 

I would also like to bring to your attention that your listing states "All the glass and ceiling panels are undamaged." - however this is not the case as we found that one of the large panels had a crack running through it, the item is therefore covered by eBay's Item Not As Described Policy.

 

Under the Sale of Goods Act 1979 (as amended) are certain statutory rights. The conservatory is not fit for the purpose due to the damage.

I therefore believe that you are in breach of contract and so I am legally entitled to reject the goods and claim a full refund.

 

To which I received this rather rude reply.

 

Your story seems to have changed very considerably. The facts are that you purchased the conservatory, nearly three weeks later and after numerous promptings and requests by me you turned up with a van and without any rope, in the vague hope that somehow it would all stay on the van without falling off or getting broken. After two hours of stuffing around you then said that the conservatory would not fit into your garden, this is despite the measurements being quite clear in the advert. Now you are saying that I misrepresented the conservatory by not telling you the size of truck needed to collect it.....don’t be ridiculous.

 

Of much greater concern to me is the crack in the glass. I can categorically say that before you moved everything there were NO cracks in the glass. The builder who dismantled the conservatory and stacked it against the wall will confirm this. I inspected the panes before you arrived. The only explanation for the crack is that you or friend did it when you were moving the panes on and off the truck.

 

As I have stated the legal position is that you won the conservatory in the auction and have bought and paid for it.

 

You must remove it by the weekend or I will start charging you rent at £50pw. I suggest that rather than making up fatuous stories to try to get out of your contract you relist it immediately to mitigate your loss if any and sell it for whatever you can.

 

I am fully aware of my legal rights and am quite happy to go before the Small Claims Tribunal if you so wish. I know exactly what the magistrate will say however so I suggest you get on and resell the conservatory pdq.

 

If the conservatory has not been taken away by the weekend then I will relist it on Monday next week and sell it on your behalf. I will then deduct ebay’s and my commission plus storage fees and remit any balance to you.

It was 2 weeks after winning the auction that we came to collect the conservatory as the seller was unable to let us do so on the first weekend after the auction ended.

 

The conservatory was far too large to fit into a 3.5 tonne truck due to the thickness of the panels.

 

My husband and friend did not break the panels, the owner admitted that the conservatory had been lying dismantled behind his house for 3 months.

 

As far as the 'legal' position is concerned, I believe that as buyers we have completed our contract, however it is our right to dispute it as the item is not fit for purpose.

 

Can he charge us storage when we have not agreed to this?

 

Can he sell the conservatory on our behalf without our consent?

 

I could really do with some advice, and if I have to take him to court then I will, any assistance would be greatly appreciated - thank-you.

 

(I have not yet replied to the latest e-mail)

[mnrbig]

As this was bought at "auction" i suspect the SOGA does not apply in this case. As you have paid cash for the Item, there is not much that Ebay can do to recover your money. You may also have problems proving that you didn't break the glass when loading. It is a case of your word against his. However if the dimensions are wrong, then that is easier to prove,so you can go down that route rather. As regards your questions, logically as you have rejected the item on the basis that it is not as described, the item still belongs to the seller. He cannot charge you storage or need your permission to sell it on, however legally this may not be as cut and dry. I am of the opinion, that this would need to be resolved in the County Court as the seller doesn't seem to be interested in refunding your money.

[gni03349]

One other point that may be worth mentioning.

 

How was the communication between you and the seller undertaken... by email? or by the ebay message system? either way, there would be an electronic record of this communication wouldn't there? it would quite clearly state what you and he said, so try and gather that together.

 

At first glance it would appear that he is taking the ****, but without the complete details and transcripts (email or messages), at the moment there is not too much that can be said about this. As mnrbig pointed out, at the moment, it is your word against his.

 

I'm sorry that not much can be done about this situation right now. If you are adamant that you are in the right, then collect the message numbers of the communications between yourselves and the seller, and ask ebay to investigate. It would at least flag him up as somebody they need to watch, and may or may not help in your case using the ebay compensation scheme. That is what I would do in the first instance. After that, by all means come back for help if you can gather the sequence of messages.

 

 

Regards...

[darkest_dawng]

Thanks for your advice, all communication since we returned has been conducted by e-mail - the above is the complete transcript of the communications - I have the headers etc. It's good to know that he can't charge me for storage etc - it looks as though I will need to take him to court doesn't it. Should I respond to his latest e-mail?

 

My husband has also told me that the beading/fascia etc were all ripped and damaged, our friend was there with my husband to collect this, so he would be an independant witness to this.

 

My husband also tells me that they didn't even put the cracked panel onto the van - or in fact move it from it's position against the wall, as by then they had decided that the conservatory was no good.

[davethorp]

Personally as it's likely to have to go to court, your next action in my opinion should be to send them an LBA but send it by recorded mail rather than e-mail so you have a paper trail for the court.

 

If they don't respond or refund within 14 days file a claim

[gni03349]

LBA - Letter Before Action...

 

which basically means that you are giving the other party notice that you are taking them to court, but being nice about it, and offering them a chance to be good and pay you back your money. If he decides to ignore you, he will have a court issued CCJ against his name, which won't be very good for him, and will stay there for 6 years, even if he wants to clear it by paying you at a later date. It will cost him more than that anyway. He will have to get a Certificate of Satisfaction to send to the credit reference agencies, who will then just say that the debt has been satisfied. The original CCJ will still stay for a nice long time... oh dear, what a shame eh?

 

I guess we'll see how clever he is, if he tries to challenge it, or if he ignores you.

 

I need to check the vailidity of using email as admissable evidence, otherwise I'm afraid it will be your word against his. However, you have a witness as to what happened (which is why I asked about how the communication was undertaken... and I was hoping it was ebay, but not to worry)

[mnrbig]

If he decides to ignore you, he will have a court issued CCJ against his name

 

That's if he looses and doesn't pay the CCJ in 28 Days.

[gni03349]

Well yeah, but if he is stupid enough to ignore, then dawng will win by default anyway. Why should she care what happens to him afterwards?

[Bookworm]

gni03349: E-mails are perfectly acceptable as evidence, yes.

 

mnrbig: E-bay are not an auction site as such, they classify themselves as "facilitators" between buyers and sellers and SOGA very much applies thoughout, with the usual restrictions which SOGA itself places (reduced protection if seller is not a trader, that kind of things).

 

darkest dawng: The advice you are being given is pretty much right. Make sure you have a copy of the one where he said you couldn't go and collect it the week before.

 

As for the dimensions of the truck, I'm afraid you can't use that to claim mis-representation, as it is your responsability to make sure you have adequate means of transporting the goods, unless you have it in writing that you did ask him and he gave you false information, and even then, I am not sure that would impinge upon the rest of the claim, as it isn't the transportation which is being sold and I would say doesn't form part of the contract.

 

Ultimately, if both sides go to court, it will boil down to the balance of probabilities, in other words, who the judge thinks is most likely to be telling the truth.

 

You need to write a second time to seller, repeating that you are rejecting the goods and that you want a full refund within 14 days or you will take court action. Don't respond to his rants.

 

If you need help with the kind of things to say, look in the Library for the bank charges template and tweak accordingly, make sure you replace UTCCR by SOGA 1979, and you should be good to go.

 

While you wait, gather as much evidence as you can (e-bay listings, etc) to check if the guy is selling as an individual or a trader.

 

Holler on here if you're stuck.

 

How much did it cost, btw?

[gni03349]

Thanks for confirming that BW, and thanks for "summing it up" nice and concisely in your post.

 

I think the figure mentioned was over £200. Don't know the exact figure.

[Bookworm]

Yes, I saw that, but we don't know whether that was the total figure, or whether they had to pay a deposit... Not the most important thing, as it will be squarely within SCC remit and court fee will probably be in the £30 bracket.

[mnrbig]

gni03349: mnrbig: E-bay are not an auction site as such, they classify themselves as "facilitators" between buyers and sellers and SOGA very much applies thoughout, with the usual restrictions which SOGA itself places (reduced protection if seller is not a trader, that kind of things).

 

Well there you have it, straight from the proverbial horses mouth:grin:. I did actually say I suspected SOGA did not apply, but my suspicion were incorrect.

[darkest_dawng]

Thanks Bookworm - and everyone else we paid £201 for the conservatory, he is an individual seller rather than a trader which is why I approached him regarding SOGS rather than Distance Selling Regs. - I'll send an LBA by snail mail and see where that gets me. Thank-you again - I'll let you know how this turns out.

[gni03349]

Good luck with it DD, and thanks for the update.

[Weird Al Yankovic]

I think by paying £200 for a second hand conservatory one must expect some defects, not least due to the probable age of it, and certainly the beading as it has been dismantled.

 

Out of interest, you say your husband spent two hours packing the panels onto a van but 'it became apparent the dimensions were wrong.'

 

How was your husband aware of this? I mean, did he have a tape measure with him? The fixing plan of the conservatory? (They can be quite a chore to construct)

 

Did you buy the conservatory without first taking a look at it?

 

Can you post up the original advert? And could you post a copy of the original email you sent rejecting the goods which seems to be missing from your other emails?

[gni03349]

Hi Al... the transcript of the emails are all in the very first post.

[gni03349]

...

[darkest_dawng]

Hi Al, of course I would expect some defects but not a huge crack down one pane of glass when the listing states otherwise. I also stated that the beading and the fascias were damaged.

 

My husband's friend is a professional delivery driver and knows the dimensions of his van, the dimensions given for the conservatory should have fit it. They had to drive 80 miles to collect it - I can see what you are saying, but we wouldn't have even left home if we thought otherwise.

 

I bought the conservatory on eBay - hence not looking at it first.

[patti12]

...

[Weird Al Yankovic]

Hi Al... the transcript of the emails are all in the very first post.

 

Not the initial one, going by this at least-

 

On Monday I sent the seller an e-mail asking him politely to arrange to return our money, this is the reply we received:

 

It's important to read all the transcripts, more so the very first one.

[darkest_dawng]

Please can you arrange to return our payment. Many Thanks - our address is ... Kind Regards

This was the first e-mail sent to the seller.

[Weird Al Yankovic]

Hi Al, of course I would expect some defects but not a huge crack down one pane of glass when the listing states otherwise. I also stated that the beading and the fascias were damaged.

 

My husband's friend is a professional delivery driver and knows the dimensions of his van, the dimensions given for the conservatory should have fit it. They had to drive 80 miles to collect it - I can see what you are saying, but we wouldn't have even left home if we thought otherwise.

 

I bought the conservatory on eBay - hence not looking at it first.

 

I'm not taking sides but these things will be considered at court should it go that far so I hope you recognise that.

 

I was a delivery driver once and a 3.5 tonne truck only gives an indication of a safe weight load and not necessarily how goods fit in to it.

 

For example, I once turned up to transport a kitchen worktop that was of no real concern for weight but because the length was over 20 feet I couldn't load it. My work controller ignored this when booking the job.

 

I still fail to see why the conservatory didn't fit in the van due to the 'dimensions given.' How big was the biggest panel? Can you give a rough estimate of the complete size of the conservatory? I'd be surprised if any of the individual panels were taller than 6" or wider than 5".

 

And what make of vehicle was the 3.5 tonne as used?

 

Without actually planning the actual build I'd say it would be very difficult to determine the dimensions of the conservatory were incorrect simply by attempting to load a van.

 

And you say the 'panels were too thick?' I don't understand that.

 

I'm sorry about the above but something just seems odd about it.

 

I mentioned the beads being damaged as you initially mentioned them by saying 'all the beads and fascias were ripped and damaged too' as if this was an additional problem the seller didn't disclose.

 

Yet it appears the seller only mentioned the panels and glass were undamaged.

 

To deconstruct a conservatory and not damage any of the beading would be very difficult so I think this should be expected. In any case, they are readily available brand new and quite inexpensive and I'd suggest one should account for that anyway.

 

The glass panel damaged is a valid point but it appears one word against the other.

 

And a contract is formed on ebay between the seller and buyer as soon as the item ends and you are the succesful buyer. If you choose to buy something without first viewing it then that is your call.

 

And then the sale was further confirmed by actually giving the seller £200 to the seller on arrival. Yet a further opportunity to view the goods.

 

However, you are going by the advert which you believe is misleading but I'd not give out much hope from what you have disclosed thus far.

 

The main contentions appear to be incorrect dimensions and a cracked panel. Can you prove either?

[Weird Al Yankovic]

This was the first e-mail sent to the seller.

 

OK. I feel the seller desparately wanted to get rid and you bought it. I personally think he's probably not a nice chap, a bit of a chancer, but any comeback now for you would be a waste of time.

 

Can you post the advert up or a link to it?

[raydetinu]

Hind sight I know, but why did you pay before checking it out!! you had the oppotunity?

think its a case of caveat emptor!

I dont think you would win any court case.

In fact he could start charging you storage fees and give you notice to collect or he will dispose of it.

If you bought a car from a private seller and you only noticed a defect on the way home, it would be tough, no comeback.( unless it had misrepresented or you had been deliberately mislead of course )

[Weird Al Yankovic]

I've just thought of something too.

 

Do you know how old the conservatory is? I assume it is fairly old as it only cost £200 and it's second hand.

 

I think you may find that a new build conservatory would need the most recent BS standard of glass anyway and even more so if you need planning permission for your conservatory.

 

I'm sure somebody will confirm or correct this in due course.