EBAY - Item wrongly advertised as in good working order - can I claim money back?

[LarissaJ]

Hiya all

 

I'm hoping for a little advice for my OH. He purchased a chain saw from ebay last week, he paid for it immediately on ebay via paypal.

 

The item was advertised as in full working condition, but it was faulty.

 

My OH took the item to seddons to be assessed and contacted the seller. The seller assured him that it was his own saw and was working perfectly and asked if my OH was using it correctly (he was, he uses them everyday).

 

Seddons have said that the saw is in a very bad condition and the pistons are completly broken and will cost £180.00 to repair.

 

It is quite clear therefore that my OH has been ripped off by this ebay seller.

 

What I need to know now, is can he claim the money back from paypal? and if so, is it a straighforward procedure?

 

THANKS

[Jimbo-Jones]

Yes you need to contact the Ebay seller first to inform them that it is faulty requesting a full refund or the cost to put it right.

 

Give them only a Short time span to repond. as there is a time limit of 45 days! eg 72 hours

 

If they tell you to go swing then open a dispute through ebay. I believe there is a pre filled option for "item not as described" and you can then put your case forward for the item quote the repair shops estimate of £180 to put right and that the damage is old not new. they should force a refund through paypal.

 

Contact paypal directly though and ask them as they are really Hot on this sort of thing. and will be able to guide you better

 

I believe you only have 45 days fomr date of purchase not from the date you received the item to do this in though so get onto it A.S.A.P!

[LarissaJ]

Thanks Jimbo, my OH sent the seller an email yesterday asking for a refund and explained that an engineer had looked at it and said it was broken.

 

He got a reply today saying that it was in full working order when he sent it and the engineer is just trying to make money!!!!!! Also said that he and his family travel all over the country doing tree work and tarmacing drives so if he emails his phone number then he will arrange a time to come and look at it.

 

I don't think there's much point in answering now, I think he should just go to ebay to put it in dispute and try to get a refund from paypal.

[perplexity]

You should not have to argue about it, not at all, because the distance Selling Regulations grant the consumer the right to cancel a distance contract and with no obligation to give a reason, in which case "the supplier shall reimburse any sum paid by or on behalf of the consumer under or in relation to the contract to the person by whom it was made free of any charge...".

 

It is also worth nothing that the section 17 of the Regulations insist that

 

(4) The consumer shall not be under any duty to deliver the goods except at his own premises and in pursuance of a request in writing, or in another durable medium available and accessible to the consumer, from the supplier and given to the consumer either before, or at the time when, the goods are collected from those premises.

However, if you cancel the contract of sale that should also end the argument about the condition of the goods because

 

(2) 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.

 

http://www.opsi.gov.uk/si/si2000/20002334.htm

 

A buyer should therefore sort this out directly, with the seller. To resort to the Paypal resolution centre would rather treat the contract as if it were still to be enforced, which is not to suggest that Paypal enforces the law. Paypal enforce nothing but the terms of the Paypal User Agreement, reserving the right to please themselves how they do.

 

The bottom line is then that if the seller is not so keen to own up he would then be sued and would lose and end up with the cost of the case to pay because the Regulations establish a statutory duty. The courts are not so keen on dodgy sellers who regard themselves as immune to legal obligations.

 

[LarissaJ]

Thanks Perplexity for that.

 

Despite what you state above, I think we may have to go through paypal though as possibly our only option, as this seller is obviously either a traveller or pretending to be such in order to intimidate us.

 

The travelling community are very good at disapearing, thus making any court battle completely pointless, as how could we enforce any action if this person does dissapear?

 

We have had another email, with another 'backhanded threat' that he and his family are in our area soon tarmacing drives and can call upon us to inspect the saw.

[perplexity]

How to enforce any action if the person disappears?

 

The letter of the law provides as much as it could to protect, requiring that a "service provider" (e.g. a seller) identifies himself and provides a geographical address, and the failure to do so may be prosecuted as a criminal offence.

 

Beyond that it is caveat emptor, buyer beware. An enforcement officer would possibly not be so sympathetic if you were downright reckless about your choice of seller to deal with. Hearsay has it that the UK Police forces simply do not want to know about eBay; it is nothing but trouble for as far as they are concerned, a den of iniquity.

 

C'est la vie.

 

[Jimbo-Jones]

Dont worry about not getting your money back Paypal will credit you with the money you shelled out for and will deduct the money from the other persons paypal account.

 

If that puts them into a negative figure with paypal then so be it meaning they will be chased by DCA's and Paypal.

 

If the Guy is saying the engineer is just trying it on then go to a few other repairers and get their opinion. Either way its gone on too long now and just contact Paypal and request a charge back.

[Kraken1]

paypal first, and then you are left with suing for breach of contract, s13 SoGA. It is right to give consideration to enforcing any judgment if you get one though.

 

Note that other remedies, dsrs, SoGA s14 etc won't apply if the seller was not selling in the course of a business/professional capacity etc.

[perplexity]

Beware not to be fooled by this:

 

"other remedies, dsrs, SoGA s14 etc won't apply if the seller was not selling in the course of a business/professional capacity etc."

 

Section 210 of the Enterprise Act defines a consumer sale, according to which a business includes

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

Enterprise Act 2002 (c. 40)

 

The capacity to sell on eBay is the capacity provided by the eBay User Agreement and proved by the same. If you proceed to lodge a claim with Paypal all the listings and the members are treated on the same basis, so long as a sale is legal, and so would the law for the same reason: The same contractual terms apply, and that is what the protection legislation applies to, the contract, not the person nor the business.

 

Rights have to be claimed. If you rather expect a right to be imposed upon you, they're that much more likely to please themselves instead.

 

[Kraken1]

No, be fooled.

 

seems my lot is to pick you up on stuff, perpx. You are wrong. different legislation defines what is meant by a consumer or similar in different cases. SoGA says 'acting in the course of a business', DSRs say 'professional capacity' or similar.

 

There is a huge body of case law, journals and comment on this. It is even a dedicated part of many consumer law specific courses.

 

as you like the enterprise act, perhaps you could explain its purpose and role? What effect does it have on other legislation? Why does it give a definition of consumer?

[perplexity]

There is no "different" legislation.

 

Schedule 13 of the Enterprise Act defines the legislation that must be construed in accordance with section 210, and if you peruse the list of Directives you will find that it covers everything of concern to us here, nor does any definition to be found elsewhere contradict section 210. All it does is clarify the terms that already existed, in particular, for instance, the "course of a business" from section 14 of the Sale of Goods Act, the cause of most of the confusion, the "private seller" myth, and subject of %201%20All%20ER%20613"]Stevenson v Rogers [1999] 1 All ER 613

 

The preamble to the Act explains that the relevant role and purpose is

 

to amend the law relating to the protection of the collective interests of consumers;

Otherwise, the purposes are explained by the EU Directive which is implemented by Part 8.

 

EUR-Lex - 31998L0027 - EN

 

All in all the general objective is the protection of the collective interests of consumers, so should thus apply wherever there is a collective, on eBay for instance.

 

Were there not a collective interest we would not be discussing it here, would we? A private sale would be private, none of our business, an essential difference being that goods or services "are or are sought to be supplied", which is to suggest that the goods or services are made available to a market where the supply of goods or services is the usual business of the market.

 

You could also refer yourself for instance to the EU Directive 99/44/EC whereas it is specifically stated that the

 

free movement of goods concerns not only transactions by persons acting in the course of a business but also transactions by private individuals;

[Kraken1]

I am truly sorry Perpy, but you are wrong. I think you mean well, but your reading or experience just isn't deep enough yet. You are missing great swathes of law.

 

The enterprise act doesn't really feature here. It has little effect on a consumer. it isn't cited in a statement of case, unless you are a trading standards authority. it is relevant only to the enterprise act.

 

No court is going to look at a piece of legislation, for eg SoGA and define consumer in the terms of the EA. They will look at the act itself. The case you cited is perfect proof of this, it debates which of the definitions of consumer is appropriate for the fisherman.

 

210(6) even says that 'a consumer is a person who is a consumer for the purposes of

...the listed Directive concerned.' This means that the individual bits of legislation in schedule 13 define what is a consumer in those acts, just like the Enterprise Act defines a consumer for the purposes of the Enterprise Act. Schedule 13 itself lists the legislation the OFT and the like can actually enforce, that legislation is on no-way construed in accordance with s210.

 

If you think back to your first year LLb you will have looked at the building blocks of statute, regs, SIs etc and will have seen that if primary legislation is itself amended or specifically referenced through subsequent regs or SIs. This means that if the SoGA etc was to be construed through another piece of legislation the SoGA would have been amended specifically to say so. for an example look at the ssgtcr 2002. Another example are the host of regulations under the consumer credit act.

 

The parts you are citing are to do with the powers of different enforcers to prosecute or bring other action under certain legislation. The definition of consumer is important in this respect and is relevant as to whether something comes under the remit of the various enforcers.

 

I'm not sure you have understood what 'collective interests of consumers' actually means. It isn't a collective as you might get in employment law for example; it is the test to used for an enforcer to take action - whether it is in the best interests of consumers to take action and a consumer is therefore defined.

 

If action is able to be taken then the enforcer will then look at the specific piece of legislation for important definitions. For example for the DSRs they will look at whether the sale was made in a professional capacity, for the cputrs they'll look at reg 2(1), an approach which is also echoed in the utccrs. a narrower definition is used in ucta and the CPA (now defucnt) was different again. Some legislation doesn't define it (for eg the consumer credit act) but there is a fair body of case law based on the old money lending act to help. car sales are also fertile ground for this debate. SoGA talks about being the course of a business.

 

99/44/EC is in the same camp - it defines what it means by consumer and it all became subsumed into SoGA in any event (save for the bit on guarantees).

 

All this means that the vast majority of the UK, except perhaps you, thinks that many pieces of consumer protection legislation, for example SoGA or DSRs do not apply in consumer - consumer transactions. Hence why I added my caveat above. Many sellers on ebay will not be acting in the course of a business and therefore the buyer will not have the same rights as he might have if he bought from currys online or similar.

[perplexity]

 

"....that legislation is on no-way construed in accordance with s210?"

 

Are you kidding?

 

212(4) is perfectly specific:

 

(4) References to a listed Directive must be construed in accordance with section 210.

for the purposes of the listed Directive concerned, purpose (10) explains that

 

Whereas the same transaction comprising successive operations or a series of separate operations over a period of time may give rise to different legal descriptions depending on the law of the Member States; whereas the provisions of this Directive cannot be applied differently according to the law of the Member States, subject to their recourse to Article 14; whereas, to that end, there is therefore reason to consider that there must at least be compliance with the provisions of this Directive at the time of the first of a series of successive operations or the first of a series of separate operations over a period of time which may be considered as forming a whole, whether that operation or series of operations are the subject of a single contract or successive, separate contracts;

This advice from the OFT Guidance document therefore follows from that

 

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

 

An enforcer is therefore out of order to consider an eBay sale as a single contract in isolation, if only because an eBay transaction forms a whole, an operation the subject of successive, separate contracts.

 

The Regulations apply to a distance contract and the relevant contractual terms, to establish the obligations of a buyer and a seller on eBay are determined by the User Agreement, not the particular terms of an individual seller, so that is what the Regulations apply to above all else, the eBay User Agreement which applies to all the members and all the listings. Except that this is so there would be no right to cancel anything on eBay; the User Agreement would otherwise prevail to the opposite effect.

 

When the Regulations refer to "a consumer" or "a supplier" that's the consumers or suppliers in general, whoever is bound by the same contractual terms. Section 6 of the Interpretation Act applies. Where the Regulations intend to affect an individual because of a particular responsibility it is "the consumer" or "the supplier".

 

By the same token, a supplier is any person who, in contracts to which these Regulations apply, is acting in his commercial or professional capacity, and could be the supplier of a User Agreement to supply the service, or another supplier subject to the agreement, therefore facilitated to supply goods as as a consumer of the service to provide the capacity, the capacity of a person in the context of a contract being the legal capacity to contract, as per section 3 of the Sale of Goods Act for instance.

 

In any case, the definition of "supplier" is definitely not an exception to the application of the Regulations. A supplier would already be in the contract to which the Regulations apply, with the Regulations already applied, the reference to the definition being an application of the Regulations.

 

Edited April 5, 2010 by perplexity

[Kraken1]

So then, again please forgive me for seeking clarification, I have trouble following the logic of your posts. Am I right in summarising your posts:

 

1) the enterprise act provides the definition of consumer to be used in all legislation, SoGA, DSRs, UCTA etc etc.

2) s214 doesn't simply lay down the rules for the OFT or similar launching some sort of action? They must comply with 210 first?

3) The buyer could take action against ebay under the dsrs?

4) what does this mean in English:

 

"By the same token, a supplier is any person who, in contracts to which these Regulations apply, is acting in his commercial or professional capacity, and could be the supplier of a User Agreement to supply the service, or another supplier subject to the agreement, therefore facilitated to supply goods as as a consumer of the service to provide the capacity, the capacity of a person in the context of a contract being the legal capacity to contract, as per section 3 of the Sale of Goods Act for instance."

 

As an aside, how does s6 of the interpretation act apply to the definition of a consumer/business? This states:

6 Gender and number.

In any Act, unless the contrary intention appears,—

(a)words importing the masculine gender include the feminine;

(b)words importing the feminine gender include the masculine;

©words in the singular include the plural and words in the plural include the singular.

 

For completeness, and for other readers, I've added in the rest of the section from the OFT guidance that you quoted above.

 

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

2.19 This depends on specific circumstances, for example: I the contractual relationship between the website provider and

the seller

I whether the seller is acting as a supplier within the meaning of the DSRs

I whether the seller is operating under an organised distance sales or service provision scheme, and

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

[perplexity]

I see nothing to prevent a theoretical action on the part of a buyer against eBay but what would the claim be for?

 

The important point to note is that the definition of the distance contract especially refers to "any contract concerning goods or services", not just to a contract to supply the goods or services, nor to a contract of sale, so long as this is under "an organised distance sales or service provision scheme run by the supplier who, for the purpose of the contract, makes exclusive use of one or more means of distance communication up to and including the moment at which the contract is concluded."

 

With regard to eBay User Agreement "the supplier who runs" is thus the person of eBay, but in view of the definition of a supplier as "any person who, in contracts to which these Regulations apply, is acting in his commercial or professional capacity", a second supplier could also be in the contract, a supplier of goods to another person who is also bound by the contract, both of them bound by the terms of the contract as consumers of the service to facilitate the trade.

 

An eBay seller runs his own service provision scheme, under which a contract of sale is concluded, and the Regulations may or may not apply to a contract concluded under that, but this would not prevail above the superseding contract which was already married to the UK Regulations, which in turn are superseded by the Community Directive. It's a hierarchy.

 

I know that this is difficult to untangle. I struggled with the issues for years before the penny finally dropped, that the "operation or series of operations are the subject of a single contract or successive, separate contracts". They saw it coming, the situation whereby the conclusion of a contract to supply is bound by the terms of a previous contract. An eBay transaction is not a single separate isolated entity.

 

----------

 

Re. the Interpretation Act the point is simply that the plural interpretation must be applied unless the contrary intention appears.

 

Ergo for instance "consumer" means any natural persons who, in contracts to which these Regulations apply, act for purposes which are outside their business; It is not therefore fair to deem that one of those consumers is affected by the regulations while another is not, albeit that both are siubscibed to the same contractual terms, which the law applies to, and the same goes for a supplier.

 

"a supplier" is any number of suppliers subscribed to the same contractual terms. With the eBay Agreement for instance, equivalent terms exist if we subscribe to the various European suppliers of the eBay service which, as a matter of principle, must be treated in the same way, to be sure that "consumers should be able to have access to the goods and services of another Member State on the same terms as the population of that State".

 

With all said and done this is what the legislation is for, to ensure that one consumer enjoys the same terms as another, without the worry of distinguishing the terms of sellers on the same market.

 

[Kraken1]

I think I see what you are getting at. I'm not sure that it would actually unfold that way in front of a dj though. You would need a fairly unique set of circumstances that I just can't see happening.

 

I'm also not convinced that the int act is at all relevant, especially in the context cited. It means only that if you see consumer it also means consumers. As for the rest of your comments, again, I don't really understand what you are saying.

 

What about the other points?

 

1) the enterprise act provides the definition of consumer to be used in all legislation, SoGA, DSRs, UCTA etc etc.

2) s214 doesn't simply lay down the rules for the OFT or similar launching some sort of action? They must comply with 210 first?

3) -

4) what does this mean in English:

 

"By the same token, a supplier is any person who, in contracts to which these Regulations apply, is acting in his commercial or professional capacity, and could be the supplier of a User Agreement to supply the service, or another supplier subject to the agreement, therefore facilitated to supply goods as as a consumer of the service to provide the capacity, the capacity of a person in the context of a contract being the legal capacity to contract, as per section 3 of the Sale of Goods Act for instance."

 

 

And after all this - in plain english - what is your advice to the OP?

[perplexity]

Whatever the supposed purpose of 212(4), it makes no sense that anything affecting a business "must be construed" by the OFT if a person who may thus be affected is not to heed the possibility, which is definitely not what is happening if he rather pretends to be excepted from the consumer protection legislation.

 

"commercial or professional capacity" approximates to section 3 of the Sale of Goods Act, the capacity to buy and sell which is about the legal capacity to contract. The UK Regulations do not define a criminal offence per se, the effect being to amend a distance contract, so the terms of the Regulations are enforced in the same way that the distance contract is enforced. It therefore follows that the contract must be legitimate, not an agreement to buy stolen goods, unlicensed goods or whatever else should rather be subject to the criminal law.

 

Whichever way, whatever is made of that, as soon as you concede that the right to cancel a distance contract applies to any particular purchase on eBay, which happens to be the fact of the matter at the moment, it has to follow that the Regulations supersede the terms of the User Agreement which would otherwise bind to the opposite effect: Items won on eBay must be paid for. The Regulations therefore apply to the User Agreement, with regard to goods sold on eBay, and the general obligations thereof, covered by the Agreement.

 

QED.

 

I see no way for a dodgy seller to argue his way out of that, and the logic of it should not be so difficult to follow, put to a judge of average intelligence.

 

[Kraken1]

Y'know. I don't even think you understand what you are talking about.

None of the above makes any logical sense, and most of it appears to be irrelevant to this problem, except:

 

I see no way for a dodgy seller to argue his way out of that, and the logic of it should not be so difficult to follow, put to a judge of average intelligence.

 

Simple - 'I was not selling in a professional capacity guv. I was just flogging my [thingy] as I dint need it no more and ain't never used ebay before'.

 

Is there any point me asking you again to give plain english advice or are you just here to confuse?

[perplexity]

I never yet heard of a seller who got off with a line like that.

 

Did you?

 

[Kraken1]

The vast majority don't even get to court. Have come across a fair few that have got away with the 'i'm a consumer guv' thing'. A few where it has been held that, actually, you really were a business and so the regs apply. this is the only point of debate - are you really a consumer?

 

It is fairly straightforward; the dsrs do not apply in consumer to consumer cases, only business to consumer cases. Subject to the caveat that there may well be debate as to what a business (or acting in a professional capacity) means.

[perplexity]

It is fairly straightforward; the dsrs do not apply in consumer to consumer cases, only business to consumer cases. Subject to the caveat that there may well be debate as to what a business (or acting in a professional capacity) means.

 

It is perfectly straightforward because the Regulations apply to a distance contract, and the one particular transaction is not the relevant contract.

 

The relevant contract is the eBay User Agreement. That is what determines the rights and duties with regard to an eBay transaction. The terms of the Agreement would otherwise deny a buyer's right to cancel, so that is what the Regulations apply to, as a matter of fact.

 

The question is therefore settled, of whether or not the legislation applies, there being no reason to suppose that one person who subscribes to a contract is bound by the terms of the contract while another is not, so long as they own the capacity to contract, as per section 3 of the Sale of Goods Act.

 

When the members resort to the eBay dispute resolution facility nobody expects the treatment to differ from one to another because the same contractual terms apply, and that is what the Regulations apply to, a contract concluded between suppliers and consumers, which is not just a matter for one particular supplier and one particular consumer. It's a matter of legitimate public concern, the collective interest of suppliers and consumers, on eBay and elsewhere because it happens in public, not in private.

 

8)

[Kraken1]

sorry. That is tosh. the regulations themselves give the circumstances in which they apply. It is not about denying anything, it is about getting extra rights in certain circumstances.

 

The dsrs might apply to the service the consumer contracts for with ebay, but I doubt in practice they would, and what would the consumer cancel? And how would this cancel a subsequent contract?

[perplexity]

The consumer cancels the part of eBay User Agreement which says that

 

Buyers cannot:

Commit to buying an item (either by winning the item or buying an item in a Buy It Now listing) without paying.

That's a consideration for eBay that the member grants in return for the service, which has to be cancelled or there is no right to cancel any transaction on eBay.

 

Furthermore it is not correct to construe that the obligation to complete a transaction is an obligation owed to an eBay seller, it being a basic principle of contract law that it is not valid for a contract to promise to perform a consideration which was already promised by a previous agreement.

 

When an eBay seller sues a buyer for non payment, or vise versa, he invokes the User Agreement, enforcing the Agreement as a third Party, as was the case with several legal precedents. The terms of the Agreement are then examined. The obligation to complete a transaction is an obligation owed to eBay and enforced by eBay in so far as eBay awards a non payment strike against a buyer who fails to pay, refunding the eBay end price fee to the seller.

 

When a buyer cancels a transaction under the Regulations eBay therefore treats it as a mutual agreement to cancel:

 

If you've sold an item but can't go through with the sale, you can cancel the transaction in our Resolution Centre and you may receive a credit on your Final Value Fee.

Cancelling a transaction

 

---------------------

 

The DSR right to cancel is not an extra right in certain circumstances; it is an alternative way to proceed.

 

Because the "the contract shall be treated as if it had not been made" the consumer rights implied by the Sale of Goods Act no longer apply, because the Act applies to a contract of sale, so would not apply to a contract which had not been made.

 

That's the way that eBay treats it, with a cancelled transaction there is no dispute to resolve, and so should the law.

 

[Kraken1]

seriously mate, you're nuts. I have no idea what you are talking about.

 

So, in the absence of the ebay agreement, there can be no contract? May Carbolic Smoke Balls rise out of the ground and smite me down.

 

Even if you are right, which you ain't, how many ebay users register, and go through a transaction within seven days?

 

I still don't get where the consideration is. You have not explained it above. Do you pay to register with ebay? Where is the payment to ebay of something of value?

 

it being a basic principle of contract law that it is not valid for a contract to promise to perform a consideration which was already promised by a previous agreement.

 

What does this mean? What is the precedent? Do you mean that an agreement to agree is void? How do you perform a consideration - consideration is just an element of a contract. Do you mean that it makes a contract void to promise to pay the same amount of money to two people? Where does this happen in ebay sales?

[PriorityOne]

I've not read through the jargon of this thread but if an item is not as described and you have paid, raise a dispute after the required period of time. The idea of the dispute is that it can be sorted out amicably if possible.

 

I bought an item that was sold in good working order and when it arrived it was not; it needed a service. I got a partial refund to cover the cost of the service and my inconvenience because I needed the item and was prepared to have someone look at it to get it to work properly.

 

Cut through the jargon and approach the seller as one human being to another. If it doesn't work, then nit-pick how the item was advertised and go from there. If you paid through Paypal, you should be covered anyway.