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

[perplexity]

One is not allowed to bid for an eBay auction without subscribing to the User Agreement, the same for all the members and all the listings,which is of course because of the benefit, the consideration that eBay gets for that.

 

There was some talk about allowing bids without having to register but they thought better of it.

 

[Kraken1]

True, but that still doesn't mean there is a contract. I have to register with cag to post but it doesn't mean that there is a contract between us I can sue on.

[noomill060]

Ebay makes no charge to buyers for the use of it's website- therefore there is no consideration, therefore there is no contract between Ebay and buyers.

 

The only contract that Ebay have is between themselves and the seller.

 

 

Buyers and sellers have a contract between themselves.

 

Sellers have a contract between themselves and whoever they choose to deliver stuff to buyers.

[perplexity]

So you completely disagree with the OFT Guidance, that the application of the Regulations to auction sites on the internet depends on the contractual relationship between the website provider and the seller, for example?

 

 

P.S. re.

 

Not really. Sellers have a contract, buyers don't. Ebay makes it's money from the sellers. Simple contract law.

 

hence why all the advice is the dsrs don't apply if the seller is not a business.

 

Here is some simple contract law: The Contracts (Rights of Third Parties) Act 1999

 

eBay is a business.

 

8)

Edited April 13, 2010 by perplexity
P.S.

[noomill060]

But Buyers Dont Buy Anything From Ebay Inc!!!!!!!!!!!!!

[perplexity]

The eBay User Agreement is effective "upon acceptance", whether or not a member intends to buy or sell. It is not just a registration.

 

eBay immediately provide the use of the service in return for which a member agrees to abide by the terms.

 

8)

Edited April 13, 2010 by perplexity

[Kraken1]

So you completely disagree with the OFT Guidance, that the application of the Regulations to auction sites on the internet depends on the contractual relationship between the website provider and the seller, for example?

 

Neither Nooms or I are suggesting this - indeed we agree with it. We are saying there is no contract between the buyer and ebay, not the seller and ebay as you have posted above.

 

Quote:

Originally Posted by Kraken1

Not really. Sellers have a contract, buyers don't. ebay makes it's money from the sellers. Simple contract law.

 

hence why all the advice is the dsrs don't apply if the seller is not a business.

Here is some simple contract law: The Contracts (Rights of Third Parties) Act 1999

 

eBay is a business.

 

This is a good argument. But on a closer look it doesn't help. It allows the buyer to enforce a contract, or sue for breach, not to cancel one. It does not create a contract where there was not one initially and so the dsrs do not apply. To use the CRTPA a buyer would argue that a seller has breached his agreement with ebay and would demand a remedy because of this. essentially therefore obligating a seller to sell, not providing a right to cancel under the dsrs.

 

As an aside the CRTPA isn't simple contract law by any stretch, in my opinion. mainly because it can so easily be excluded and because there are so many exclusions.

 

The ebay User Agreement is effective "upon acceptance", whether or not a member intends to buy or sell. It is not just a registration.

 

How is this different from using all the various websites and forums that demand acceptance of their terms of use before you can use them? It is just a registration unless it has legal force and it doesn't.

 

eBay immediately provide the use of the service in return for which a member agrees to abide by the terms.

 

Like hundreds of other websites. it still isn't a contract though as there is no consideration.

[perplexity]

The Regulations apply to a User Agreement, not instead of it.

 

The original question was about Paypal. The eBay Agreement authorises eBay to

 

1. remove funds from the seller’s PayPal account to reimburse the buyer for the cost of the item and the original postage cost in accordance with the seller’s authorisation provided to us under this Agreement; or,

2. where there are insufficient funds in the seller’s PayPal account or where PayPal is not the reimbursement method of the seller, directly refund the buyer for the cost of the item and the original postage cost, and, in this case, the seller must reimburse us in full, and in a timely manner, for an amount equivalent to the sum we paid to the buyer.

On just how many of the many hundreds of other websites is there such a consideration?

 

[Kraken1]

again, your quote is all about the seller, rights the seller has under the agreement, obligations the seller has. We're not arguing that there is no contract between the seller - whoever they might be - and ebay.

 

But we're talking about the buyer. That was your original argument if you recall, that there was a contract between the buyer and ebay and the buyer could therefore use the dsrs to cancel this contract and therefore a sale he had agreed with a consumer seller. Irrespective of a set of terms and conditions, or a members agreement, until there is consideration there is no contract. the currys website has lots of terms and conditions, but they don't bind me to do anything until there is a contract.

 

The Regulations apply to a User Agreement, not instead of it.

 

and again we come back to the same point again, assuming you mean the dsrs and not some other regs.

 

1. the dsrs apply to contracts

2. there is no contract between a buyer and ebay

3. because there is no consideration

4. in the absence of a contract the dsrs don't apply.

 

or

 

1. the dsrs apply to contracts between a consumer and supplier

2. a supplier is someone acting in their professional capacity, i.e. a business.

3. if the seller is not a business, the dsrs don't apply.

 

 

I don't understand your obsession with the dsrs? why is it so important to you that they apply?

 

 

You'll have seen from other posts I've made, and I don't doubt other posters too, that when we don't understand, we say; when we are not sure, or don't have the expertise to give anything more than our opinions, we say; when we realise we are wrong, we say.

 

We post to advise, we don't just carry on banging away out of ego because we hate to be wrong. We correct ourselves, and other posters, because we are here to advise. We want posters to have the best advice possible. this might mean giving advice that is unwelcome. This might mean distinguishing between idealistic academic advice and practical advice, but the key is we are here to advise. Most of the board has pointed out that your arguments don't hold water, although some are interesting. Posters have suggested that other boards have also done so, but I have only their assurance that this is the case.

 

What I am fairly certain of, however, is that you actually know you are wrong on this point. You know you missed a few points and this caused you to err in your advice. There is no shame in this. There is shame in banging away at the same brick wall hoping that a frantic search through google, or attrition, or a lack of knowledge from others will result on some nugget that will help you be not quite so wrong, or that obfuscating will help a bruised ego.

 

Please, read the advice, break out a contract law textbook or something, and do a bit more reading. accept that this is a search for answers, nothing more. Put down the dsrs and step away from the regs. take a deep breath and go to the pub. that is where I'm going. I'll raise a salutory shot in your honour as I think you mean well, rather than posting out of a desire to deliberately mislead, but you are simply, Perplexed.

[perplexity]

What does it mean then, for eBay to say that the User Agreement is effective "upon acceptance"?

 

Are you calling that a fraud?

 

If the contract is not concluded when a member subscribes, to the eBay User Agreement, when is the contract with ebay concluded?

 

There is no apparent difference between the registration of a seller and the registration of a buyer. The Agreement defines their commercial or professional capacity, to buy or sell, whichever they do.

 

 

P.S.

 

There doesn't have to be a particular contract to examine, concluded between individuals, for the consumer protection legislation to apply.

 

Under the Unfair Terms in contracts Regulations "It shall be the duty of the Director to consider any complaint made to him that any contract term drawn up for general use is unfair"; a transaction need not so much as be initiated and the same goes for the CP Unfair Trading Regulations 2008, which may be invoked because of a likely effect on the average consumer.

 

Where written terms are common to a number of members bound by the same terms "a consumer" is those consumers, not the one in particular. s.6 of the Interpretation Act applies.

 

Edited April 13, 2010 by perplexity
P.S.

[Kraken1]

Fraud? don't be daft. I'm sorry, but if you don't understand the fundamentals of contract law now, and it is evident you don't, I can't teach you now.

 

I've made my views clear, so has ebay, the oft, trading standards, as have other posters.

 

Readers are welcome to follow the thread, read the links, look at the arguments and decide who's advice they wish to follow, the rest of the world or yours.

 

Good luck.

[LarissaJ]

.... poor OP. She probably wished she never asked....

 

HeHe! I have just logged back on after a while off and had to spend an hour or so reading through my thread lol ............. Good news here though because my OH got a full refund from eBay!

 

ps. glad I've kept you all busy !!!