Anyone taken PayPal to the Small Claims over witheld money?

[noomill060]

Your buyer is not going to be inclined to leave you positive feedback for this, is he?

 

 

Another thing, even though this isnt going to go through now, Ebay will still expect you to pay them their cut of the sale- the Final Value Fee.

 

Although, you could ask your buyer if they would agree to cancel the sale. I wouldnt expect him to agree to that though, not after this mess up.

[Last of the Mohicans]

Your seller is not going to be inclined to leave you positive feedback for this , is he?

 

Another thing, even though this isnt going to go through now, Ebay will still expect you to pay them their cut of the sale- the Final Value Fee.

 

Yeah, but to be honest, from what I've seen nobody takes too much notice of feedback anymore because they've even screwed that over so it's meaningless.

If he leaves me a bad one because of what PayPal did, I will respond in kind. Let people take what they will from it - it's not like I'm the first person to get screwed by PayPal

[noomill060]

"Edit: actually it is "kinda" the buyer fault - I said I wouldnt take PayPal on the auction (ie clearly stated in the blurb) and that the winner should contact me before paying. He just went ahead and paid."

 

You dont have any option to accept or decline Paypal payments.

 

If you want to sell on Ebay you have to accept Paypal if thats how the buyer wants to pay you.

[noomill060]

"If he leaves me a bad one because of what PayPal did, I will respond in kind."

 

How do you propose to do that? You cant leave him a neg in response, sellers can only leave a pos for a buyer.

 

Have a look at the feedback options....

[Last of the Mohicans]

"If he leaves me a bad one because of what PayPal did, I will respond in kind."

 

How do you propose to do that? You cant leave him a neg in response, sellers can only leave a pos for a buyer.

 

Have a look at the feedback options....

 

Thats what I mean by they've screwed feedback. It means nothing. You read the comment, not whether they got a positive or not. I can be quite pithy when I try

[perplexity]

From what I know of this, noomill060 is correct: "folks have served papers on Paypal and Paypal have always settled out of court."

 

Paypal is not the sort of company that would fight for a principle. If you raise the stakes enough they take the line of least resistance.

 

Anyway, it is always useful to be aware of Regulation (EC) No 44/2001,e.g.

 

Article 16

1. A consumer may bring proceedings against the other party to a contract either in the courts of the Member State in which that party is domiciled or in the courts for the place where the consumer is domiciled.

EUR-Lex - 32001R0044 - EN

 

Beware though that "may bring proceedings" could mean that proceedings are brought in the UK and then an argument ensues over whether or not the laws of the UK entitle Paypal to insist that the case is tried in Luxembourg.

 

 

P.S.

 

It is not true that "If you want to sell on ebay you have to accept Paypal". To avoid Paypal all you have to do is sell on eBay.de instead of eBay.co.uk! The German eBay is far better than the UK version anyway, in all sorts of respects.

[Last of the Mohicans]

From what I know of this, noomill060 is correct: "folks have served papers on Paypal and Paypal have always settled out of court."

 

Paypal is not the sort of company that would fight for a principle. If you raise the stakes enough they take the line of least resistance.

 

Anyway, it is always useful to be aware of Regulation (EC) No 44/2001,e.g.

 

EUR-Lex - 32001R0044 - EN

 

Beware though that "may bring proceedings" could mean that proceedings are brought in the UK and then an argument ensues over whether or not the laws of the UK entitle Paypal to insist that the case is tried in Luxembourg.

 

More grist to the mill, cheers Your last point is (perhaps?) covered in the ruling I posted, where the Court upheld the right of the case to be held in the UK - the three things together (2 treaties, 1 ruling) would probably be enough in an LBA to make them realise they're in it for the long run - which lets face it, is the point.

 

Whhatever my outcome short term, hope folks keep chucking in cos I feel a "CAG Standard LBA to PayPal" coming on

Even Buzby might find it useful

 

 

P.S.

 

It is not true that "If you want to sell on ebay you have to accept Paypal". To avoid Paypal all you have to do is sell on eBay.de instead of eBay.co.uk! The German eBay is far better than the UK version anyway, in all sorts of respects.

 

You're not the first person I've heard say that.

[Last of the Mohicans]

Theft Act is making ionteresting reading... does anyone have anything else to chuck in the pot, or any comments? particularly regarding the parts I've bolded when we're dealing with PayPal (as an unconcerned third party - they are just money shufflers) witholding payment on a legally binding contract between two private individuals...

 

My thoughts are that PayPal "represent" themselves as "an easy way for A to pay B" for a contract - and regardless of their T&Cs any attempt by them to delay or interfere in a contract between A and B is covered under this. When A writes us a cheque, we expect it to clear, or sometimes bounce- but I would be interested to see where it is enshrined in law that a bank can simply withold the funds for it's own purpose therby denying the payee the funds and the payer the goods they have contracted to recieve.

 

Theft Act 1978 - Wikipedia, the free encyclopedia

 

Section 2 provides:

(1) Subject to subsection (2) below, where a person by any deception (a) dishonestly secures the remission of the whole or part of any existing liability to make a payment, whether his own liability or another's; or(b) with intent to make permanent default in whole or in part on any existing liability to make a payment, or with intent to let another do so, dishonestly induces the creditor or any person claiming payment on behalf of the creditor to wait for payment (whether or not the due date for payment is deferred) or to forgo payment; or© dishonestly obtains any exemption from or abatement of liability to make a payment;he shall be guilty of an offence.(2) For the purposes of this section 'liability' means legally enforceable liability; and subsection (1) shall not apply in relation to a liability that has not been accepted or established to pay compensation for a wrongful act or omission."(3) for purposes of subsection (1)(b) a person induced to take in payment a cheque or other security for money by way of conditional satisfaction of a pre-existing liability is to be treated not as being paid but as being induced to wait for payment.(4) For purposes of subsection (1)© "obtains" includes obtaining for another or enabling another to obtain

and

 

Section 2 provides:

(1) Subject to subsection (2) below, where a person by any deception (a) dishonestly secures the remission of the whole or part of any existing liability to make a payment, whether his own liability or another's; or(b) with intent to make permanent default in whole or in part on any existing liability to make a payment, or with intent to let another do so, dishonestly induces the creditor or any person claiming payment on behalf of the creditor to wait for payment (whether or not the due date for payment is deferred) or to forgo payment; or© dishonestly obtains any exemption from or abatement of liability to make a payment;he shall be guilty of an offence.(2) For the purposes of this section 'liability' means legally enforceable liability; and subsection (1) shall not apply in relation to a liability that has not been accepted or established to pay compensation for a wrongful act or omission."(3) for purposes of subsection (1)(b) a person induced to take in payment a cheque or other security for money by way of conditional satisfaction of a pre-existing liability is to be treated not as being paid but as being induced to wait for payment.(4) For purposes of subsection (1)© "obtains" includes obtaining for another or enabling another to obtain.

 

Even better...

 

http://www.opsi.gov.uk/acts/acts1996/ukpga_19960062_en_1#l1g1

 

1 Obtaining a money transfer by deception

(1) After section 15 of the [1968 c. 60.] Theft Act 1968 insert—

“15A Obtaining a money transfer by deception

 

(1) A person is guilty of an offence if by any deception he dishonestly obtains a money transfer for himself or another.

(2) A money transfer occurs when—

(a) a debit is made to one account,

(b) a credit is made to another, and

© the credit results from the debit or the debit results from the credit.

 

I would argue that the "deception" is clear - regardless of, but particularly where a sale (ie a contract) is made on the basis of "Immediate Payment" PayPal accept the buyers payment in the expectation by the buyer that the seller is to be paid in order that the seller may complete the contract. By depriving the seller of funds PayPal have decieved the buyer.

By stipulating that in the case of a contract made on the basis of "No Returns" between two consenting third parties that the terms of the contract be altered before they will release funds is a straightforward theft under the terms of the Acts.

 

Anyone have any thoughts on that?

 

I'll dig into contract law next...

 

 

 

 

 

PS: I'm not suggesting anyone should start a criminal action against Paypal - I'm thinking purely in terms of an LBA - similar in use to something we micght fire off to a DCA about doorstepping - in other words a raft of nastiness to make them think "Oh, sh*t... this ones not going to roll over - give the money back / unfreeze the account.."

Edited March 14, 2010 by Last of the Mohicans

[Last of the Mohicans]

Ho ho ho...

 

http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1977/cukpga_19770050_en_1

 

3 Liability arising in contract

(1)This section applies as between contracting parties where one of them deals as consumer or on the other’s written standard terms of business.

(2)As against that party, the other cannot by reference to any contract term—

(a)when himself in breach of contract, exclude or restrict any liability of his in respect of the breach; or

(b)claim to be enititled—

(i)to render a contractual performance substantially different from that which was reasonably expected of him, or

(ii)in respect of the whole or any part of his contractual obligation, to render no performance at all,

except in so far as (in any of the cases mentioned above in this subsection) the contract term satisfies the requirement of reasonableness.

10 Evasion by means of secondary contract

A person is not bound by any contract term prejudicing or taking away rights of his which arise under, or in connection with the performance of, another contract, so far as those rights extend to the enforcement of another’s liability which this Part of this Act prevents that other from excluding or restricting.

[perplexity]

The best chance of a criminal prosecution succeeding against eBay or Paypal could be to force the OFT to prosecute under The Consumer Protection from Unfair Trading Regulations 2008.

 

8.—(1) A trader is guilty of an offence if—

(a) he knowingly or recklessly engages in a commercial practice which contravenes the requirements of professional diligence under regulation 3(3)(a); and

(b) the practice materially distorts or is likely to materially distort the economic behaviour of the average consumer with regard to the product under regulation 3(3)(b).

The Consumer Protection from Unfair Trading Regulations 2008 No. 1277

 

The basic ethos of eBay is to deliberately deprive consumers of an awareness of the full extent of their rights in order to pretend that the "protection" of eBay/Paypal is therefore essential. It is then a matter of common sense that if eBay were seriously and honestly concerned to protect their members the fist and last thing they would do is tell every buyer who exactly the seller is they buy from, and who in particular at eBay is responsible for advice provided to "help" the members, let alone their peculiar system of justice not seen to be done, with no real person ever identified as the person responsible for a decision.

 

It beggars belief that anybody who would otherwise regard themselves as intelligent would none the less regard a company that conducts itself in such a fashion as respectable!

 

The problem is then the

 

Due diligence defence

 

17.—(1) In any proceedings against a person for an offence under regulation 9, 10, 11 or 12 it is a defence for that person to prove—

(a) that the commission of the offence was due to—

(i) a mistake;

(ii) reliance on information supplied to him by another person;

(iii) the act or default of another person;

(iv) an accident; or

(v) another cause beyond his control; and

(b) that he took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence by himself or any person under his control.

 

(2) A person shall not be entitled to rely on the defence provided by paragraph (1) by reason of the matters referred to in paragraph (ii) or (iii) of paragraph (1)(a) without leave of the court unless—

(a) he has served on the prosecutor a notice in writing giving such information identifying or assisting in the identification of that other person as was in his possession; and

(b) the notice is served on the prosecutor at least seven clear days before the date of the hearing.

The Consumer Protection from Unfair Trading Regulations 2008 No. 1277

 

Who do you send the summons to? You would end up at best with a frenzy of buck passing, ducking and diving, while the monster lives on.

 

A more interesting possibility could be a Judicial Review of the OFT's abysmal failure to regulate.

 

:-?

[noomill060]

Thats what I mean by they've screwed feedback. It means nothing. You read the comment, not whether they got a positive or not. I can be quite pithy when I try

 

I know what you mean, however- false positives left by sellers can be removed simply by the buyer reporting it to Ebay. You'll get a slap too.

 

Like I said above, I agree that Paypal is acting unlawfully in blocking payments, even to newbies., but even if you dont refund the buyer, they wil have had a refund from Paypal long before this ever gets near a court so Paypal will have no case to answer. your claim will thus be struck out and you will lose your court fee.

 

And , of course you can list on Ebay Germany (or any other Ebay site you like)

 

However, you will have to accept payment in Euros and also pay your Ebay fees in Euros.

 

Germans also dislike Paypal, prefering to use bank transfer. Your UK bank will charge money to accept this from overseas banks.

 

Have you refunded your buyer's money and let them know what the score is?

 

As I also said, it isnt the buyer's fault that you dont know how Ebay/Paypal works.

 

Start a new Ebay account and get a little more experience before you take the plunge and start selling high value items.

 

Ebay used to be so much easier and more fun when I started eight years ago. Now you have to hit the ground running or fall flat on your face at the first hurdle.

 

Good luck whatever you decide, but be prepared to lose more money trying to fight them.

Edited March 14, 2010 by noomill060

[perplexity]

By stipulating that in the case of a contract made on the basis of "No Returns" between two consenting third parties that the terms of the contract be altered before they will release funds is a straightforward theft under the terms of the Acts.

 

Anyone have any thoughts on that?

 

 

A "No returns" policy is irrelevant because a buyer is legally entitled to a refund without so much as a duty to return goods to a seller.

 

If the term would rather persuade the average buyer that he is not entitled to a refund, that of itself could be prosecuted as a criminal offence, because the buyer is indeed entitled, whatever a seller's terms may say. A buyer is not so much as entitled to waive his own right.

 

[noomill060]

Mohawk accepted Ebay/Paypal t&cs by listing his sax. Part of that contract was that his payment would completed when the buyer received the sax and left pos feedback (or 21 days after the sale -provided no dispute had been raised by the buyer. Once he reaches 10 feedback he will have earned a bit of trust and his payments will not be block/delayed)

 

This was brought due to newbie [problematic] selling on Ebay then failing to send the items- result: buyers out of pocket unless they paid via credit card.

 

Sorry Mohawk, you're about 5 years too late for an unfettered, fun and easy Ebay.

 

"No returns" is a left over from the early days. It means nothing. (and of course buyers are entitled to return stuff if they have claim)

[Last of the Mohicans]

A "No returns" policy is irrelevant because a buyer is legally entitled to a refund without so much as a duty to return goods to a seller.

 

If the term would rather persuade the average buyer that he is not entitled to a refund, that of itself could be prosecuted as a criminal offence, because the buyer is indeed entitled, whatever a seller's terms may say. A buyer is not so much as entitled to waive his own right.

 

 

Absolutley, but the Buyer has recourse to Law if you send a load of tut or something obviously mis-described and he buys on that basis.

BUT: PayPal is not the Law - they are money-shufflers, and have no legal right to interfere in a contract in which they themselves have no privity.

Google the Contracts(Rights of Third Parties) Act 1999 for instance... interesting reading, when you are the "third party" having their money stolen by an intemediary...

[Last of the Mohicans]

OK, pick the bones out of this as a Letter Before Action: ANY criticsism of it is welcome, but spare me the "you signed their T&Cs" stuff - if it was like that nobody would have got a penny of bank charges back:

 

It is my contention that you have illegally witheld funds totalling £xxx.xx paid to me via PayPal in good faith by buyer appertaining to a legally binding contract where the Buyer (Name) of (Buyers Address) (herinafter "The Buyer") agreed to purchase in eBay Auction Number xxxxxxx (herinafter "the Contract") (screenshot attached) an item described as xxxxxxxxxxx (herinafter "the Item") from me for the sum of £xxx.xx, the contract being noted as being "No Returns Accepted" and "Immediate Payment Only".

 

Your attention is drawn to the fact that you are witholding the sum of £xxx.xx on the stated basis that "We want to ensure that your customers are satisfied..."

As is clearly stated in the auction terms, the Buyer formed the Contract on a "No Returns Accepted" basis - it is therefore impossible for the Buyer - having freely and conciously contracted on a "No Returns Accepted" basis to return the goods under any circumstances.

If the Buyer should decide that I have misrepresented the Item, or sought to willfully or negligently deceive him, he has recourse to Law. Under the specific "No Returns Accepted" basis on which the Buyer formed the Contract, it is entirely at the Buyers sole descretion to challenge the terms of the contract in such a way, with such evidence as will provide a satisfactory basis to an applicable Court as to the Contract having been unfairly entered into due to willful decption on my part.

No other challenge to the Contract, made as it is on a "No Returns Accepted" basis is supportable by Law, therefore you interference in the Contract on the basis that the Buyer may not be "satisfied" is both spurious and has no basis in Law.

Consumer law as relates to a private sale of used or seconhand goods as in the Auction and the subsequent Contract covers the Buyer only in the event of mis-description and discovering after due investigation by the proper legal authories that the seller had the no right to sell the goods.

It should be noted that failure to be able to prove original title in goods offered for sale is not proof of having no right to offer them for sale.

 

Further, your attention is drawn to the fact that the Buyer contracted on the strict basis of payment being made in full, including any allowance for delivery, prior to the good being despatched.

 

The Buyer has attempted to pay for the goods, transfering money from their own funds on the clear understanding that they would be paid to me in order that I could complete the Contract.

 

Your interference in the transaction, and therefore the Contact, by intercepting the Buyers payment constitutes a clear breach of Section 1(1) the Theft (Ammendment) Act 1996 in that you have decieved the Buyer into believing he was paying me directly in order that I complete the Contract made between us.

For clarity, the aforementioned Act states:

Section 1

(1) A person is guilty of an offence if by any deception he dishonestly obtains a money transfer for himself or another.

(2) A money transfer occurs when—

(a) a debit is made to one account,

(b) a credit is made to another, and

© the credit results from the debit or the debit results from the credit.

　

You will be asked to explain to the Court on what basis you appear to have contravened Section 1(1) above by intercepting and taking possesion of a Money Transfer made between the Buyer and myself.

 

Furthermore, your interference in the completeion of the Contract between the Buyer and myself contravenes both UK and EU Contract and Consumer Law, the full context of which will be revealed in my Particulars of Claim submitted to the Court.

 

You are reminded specifically that:

My right as a UK citizen to commence proceedings against you in this matter and any other arising including forceable closing of, or restrictions or penalties placed upon the PayPal Account Nmber xxxxxxxx accredited to me are clearly enshrined in the following:

The Contract (Rights of Third parties) Act 1999 and the

Specifically but not limited to Section 8.(1)(b) of The Consumer Protection from Unfair Trading Regulations 2008

and Furthermore

My right to begin proceedings against you in the UK are enshrined in Council Regulation (EC) No 44/2001 Article 16, 1 which states: Article 16

1. A consumer may bring proceedings against the other party to a contract either in the courts of the Member State in which that party is domiciled or in the courts for the place where the consumer is domiciled.

 

I therefore give notice than unless within SEVEN DAYS of reciept of this letter all funds paid to me by the Buyer in connection with the Contract are not made freely available to me a claim will be made against you in this matter in HM County Court, and that from the instigation of the said Claim in addition to the monies claimed and legally allowable interest on the sum while it was in your possesion, any fees, legal or other costs will be claimed aginst you, including my time as Litigant in Perosn chargeable at the standard hourly rate allowed by Law.

 

.

.

.

 

[Last of the Mohicans]

Little adendum to this is that it apears from everything I can find that when buying second-hand from a private vendor on eBay, your only rights are as stated above in the LBA: if it broadly matches the description, you have no complaint under law. If it is stated as working perfectly, and isnt, you have a complaint. If it works properly but theres a scratch the seller forgot to mention but doesnt alter it's use (eg, you buy a TV, and the base is scratched but it works, unless the seller has said "The base is perfect with no scratches" it's a legitemate sale and you cannot back it. So, the PayPal / eBay contrived rubbish about "try before you buy" that gets so abused is just that: RUBBISH.

Caveat emptor is the rule of law, as per usual.

[perplexity]

What's the point and purpose of this?

 

If you got the money from Paypal that's all it would be.

 

A buyer could then enforce the contract of sale to get a refund that the buyer is entitled to, regardless of Paypal, precisely because the contract is unaffected.

 

In any case it's a nonsense to suppose that the contract is a private affair between a buyer and seller. A sale on eBay is subject to the eBay User Agreement, and would not otherwise be enforceable. The eBay User Agreement validates the contract of sale and the Paypal User Agreement validates a payment. A bid for an item that happens to appear on a web page would not amount to a contract of sale apart from the terms to say that this is the meaning of a bid.

 

:?

[perplexity]

This is also a fallacy, a myth:

 

Little adendum to this is that it apears from everything I can find that when buying second-hand from a private vendor on eBay, your only rights are as stated above in the LBA: if it broadly matches the description, you have no complaint under law.

 

Section 210 of the Enterprise Act defines a consumer transaction, especially for the purpose of enforcing consumer protection laws, according to which

 

A business includes—

(a) a professional practice;

(b) any other undertaking carried on for gain or reward;

© any undertaking in the course of which goods or services are supplied otherwise than free of charge.

Enterprise Act 2002 (c. 40)

 

There is otherwise no exception for a "private" seller except that an auction broker at a public auction is not obliged to reveal the identity of a person with the goods to sell, and auction sales are treated differently.

 

[Last of the Mohicans]

This is also a fallacy, a myth:

 

 

 

Section 210 of the Enterprise Act defines a consumer transaction, especially for the purpose of enforcing consumer protection laws, according to which

 

Enterprise Act 2002 (c. 40)

 

There is otherwise no exception for a "private" seller except that an auction broker at a public auction is not obliged to reveal the identity of a person with the goods to sell, and auction sales are treated differently.

 

 

Correct me if I'm wrong, and believe me I have tried to find otherwise - where goods are clearly stated to be "used" or "second-hand" the main body of protection is removed *unless* the goods are sold by a registered business - in the same way as if you buy £200 worth of Escort on a P plate you do it "sold as seen" by default, unless it is from a bona-fide trader or garage.

I'm not trying to argue with you BTW - simply arrive at true situation.

 

As for the purpose of this, ultimately, it is for CAG'gers to arrive at a formulated LBA that they can dump on PayPal immediatly they start stealing their money. No different to the standard LBAs that are in very effective action from other parts of CAG, eg on debt collectors, 7 year old credit agreement etc etc.

 

For me, yeah, I'm pretty phugged by it and as folks have explained, they have shafted me in this instance - but I'd like to think we can put something together for the next person who they try to screw over. If thats the case, maybe they'll stop shafting people - or at least think twice before they do.

[perplexity]

What removes the protection?

 

The use of quotation marks for "used" or "second-hand" is disingenuous if you don't have a reference to a statute that refers to "used" or "second-hand" goods and you don't, do you?

 

Protection is removed, perhaps, in so far as if you go along to Trading Standards to complain about an individual who sells the odd thing or two, they are not so bothered, with more important things to deal with but that s a matter for their discretion, a discretion that they are allowed to apply, but a seller owns no discretion to excuse himself. There is nothing to stop a buyer if the buyer decides to sue.

 

[mightymouse_69]

Even better...

 

http://www.opsi.gov.uk/acts/acts1996...0062_en_1#l1g1

 

Quote:

1 Obtaining a money transfer by deception

(1) After section 15 of the [1968 c. 60.] Theft Act 1968 insert—

“15A Obtaining a money transfer by deception

 

(1) A person is guilty of an offence if by any deception he dishonestly obtains a money transfer for himself or another.

(2) A money transfer occurs when—

(a) a debit is made to one account,

(b) a credit is made to another, and

© the credit results from the debit or the debit results from the credit.

 

Anyone have any thoughts on that?

 

... Its no longer an offence?

[Last of the Mohicans]

What removes the protection?

 

The use of quotation marks for "used" or "second-hand" is disingenuous if you don't have a reference to a statute that refers to "used" or "second-hand" goods and you don't, do you?

 

It's correct English, but never the less: read for yourself

[Last of the Mohicans]

... Its no longer an offence?

 

I have no idea - please enlighten me, because I'm simply trying to find what references I can.

[ClampingKing]

Paypal are a:

 

 

of

 

+

 

[mightymouse_69]

I have no idea - please enlighten me, because I'm simply trying to find what references I can.

 

Replaced by the Fraud Act 2006.

 

There are no longer any deception offences. I have no idea what offence (if any) will be applicable here though.