Distance selling Regs and eBay?

[Surfer01]

Do the DSR apply to a private person selling something on an auction site like eBay? The regs seem to cover business trade contracts but not a private seller. Please advise as having read through the DSR I cannot find anything relating faulty goods from a private seller.

[ashmk]

DSR does not apply to a private seller but you should check if the seller has sold many of the same or similar items then they are classed as a trader and DSR does apply.

[Surfer01]

Thanks. I was thinking of selling a few different items and although i woudl try and give an accurate description of the item, I did not want any comebacks.

[perplexity]

Do the DSR apply to a private person selling something on an auction site like eBay? The regs seem to cover business trade contracts but not a private seller. Please advise as having read through the DSR I cannot find anything relating faulty goods from a private seller.

 

 

Where and how do the regs seem to cover ...?

 

The terms of section 4 are clear enough:

 

4. These Regulations apply, subject to regulation 6, to distance contracts other than excepted contracts.

 

From there on it falls to a seller to prove an exception.

 

eBay listings are public, not private.

 

A private sale would be a sale negotiated in private according to terms particular to the sale, which is definitely not what happens on eBay, where transactions apart from the eBay's rules are not allowed.

 

When you buy or sell on eBay the relevant contract is above all else defined by the eBay User Agreement. If you proceed to the eBay Resolution Centre to resolve a dispute every listing and every member is treated on the same basis, according to the terms of the User Agreement and so would the law, for the same reason.

 

P.S.

 

Nor should this be so much of a surprise.

 

I cannot find anything relating faulty goods

 

The Regulations have nothing to do with faulty goods, on any occasion, except that the fault is the fault of a buyer who fails to take care of them.

 

8-)

Edited October 19, 2010 by perplexity
P.S.

[Surfer01]

The regs also state that an auction is an exception to the rule.

[perplexity]

The regs also state that an auction is an exception to the rule.

 

 

No they do not. The exception is for a contract concluded "at an auction", which eBay is not.

 

According to eBay's own official account of itself

 

Transactions concluded on eBay are not auctions. eBay is neither an auction house nor a retailer. Transactions on eBay can, however, be conducted via a competitive bidding process.

Were eBay an auction the sales would be subject to all sorts of laws that apply to a public auction that eBay prefers to avoid. In some parts of the World the sellers would have to apply for a licence!

 

Section 57 of the Sale of Goods Act for instance insists that

 

A sale by auction is complete when the auctioneer announces its completion by the fall of the hammer, or in other customary manner; and until the announcement is made any bidder may retract his bid.

.. which is not what happens on eBay where the right to withdraw a bid is deliberately restricted.

 

P.S.

 

At a genuine public auction a seller may be private in that his name is not revealed because the auctioneer runs the auction instead, which again is not what happens on eBay where every individual member has to be identified, to take the responsibility.

 

8-)

Edited October 19, 2010 by perplexity
P.S.

[Surfer01]

Seems a lot easier and less hassle just to advertise the goods in the local newspapers. Thanks for the input.

[perplexity]

I used to sell on eBay but eventually desisted because of a wide variety of reasons.

 

They'd let me down and changed the rules once too often; the fees they want continue to increase; too much goes wrong with the system, etcetera etcetera.

 

It's better for the environment anyway, to sell your old stuff locally, ... saves all the energy, the cost of delivery.

 

[Kraken1]

this is the usual perpy rubbish. Search for pretty much any of his threads and you'll see the above debunked. The DSRs do not apply to sellers who are not acting in the course of a business. It doesn't matter how many odd bits of the enterprise act, the interpretation act or even a the corrupted version of contract law that survives in perp land.

 

He is likely to be right about ebay not being an auction however. Buy it now stuff certainly isn't, and the 'auction' stuff probably isn't. This hasn't been tested in the UK yet, but it has been in germany.

[perplexity]

 

Except for the section 24 about inertia selling, which does not relate at all to eBay, the term "course of a business" does not so much as appear as a part of the Distance Selling Regulations.

 

If you don't believe it, search the document:

 

http://www.legislation.gov.uk/uksi/2000/2334/pdfs/uksi_20002334_en.pdf

 

8)

[Kraken1]

Are you really that pedantic and daft?

 

To be precise then:

 

the dsrs apply to distance contracts:

 

“distance contract” means any contract concerning goods or services concluded between a supplier and a consumer 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;

 

 

“supplier” means any person who, in contracts to which these Regulations apply, is acting in his commercial or professional capacity.

[mightymouse_69]

Kraken, you forgot the mandatory copy and pasting of some legislation!

 

http://www.legislation.gov.uk/uksi/2000/2334/regulation/3/made

 

And for good measure, a random Act:

 

Explosive Substances Act 1883

 

I have covered for you this time Kraken, but next time I might not be around to help....

[perplexity]

Are you trying to tell us that eBay is not an organised distance sales or service provision scheme, that the eBay User Agreement is not a contract concerning goods or services concluded between a supplier and a consumer ?

 

[labrat]

seen as ebay does not supply any goods i would point out the pure stupidity of calling ebay a supplier

[mightymouse_69]

As above.

 

Kraken could not have put it in any more simple form.

 

The DSRs state that they apply to:

 

distance contracts other than excepted contracts.

 

Regulation 3, Interpretation, states that:

 

“distance contract” means any contract concerning goods or services concluded between a supplier and a consumer

 

Regulation 3 goes on to say that:

 

“supplier” means any person who, in contracts to which these Regulations apply, is acting in his commercial or professional capacity

[perplexity]

seen as ebay does not supply any goods i would point out the pure stupidity of calling ebay a supplier

 

 

“distance contract” means any contract concerning goods or services ...

 

which of course the eBay User Agreement is. eBay supplies the service and the terms that the members who buy and sell are bound by, in order to buy and sell on the site. eBay provides the commercial capacity to buy and sell. When an eBay buyer sues a seller or vise versa, they enforce the terms of the User Agreement as third parties.

 

The DSRs are not the SOGA.

 

8)

[Kraken1]

Sigh. The user agreement is not a contract between ebay and the buyer. There cannot be a contract where there is no consideration. Fact.

 

As we have all pointed out a million times perpy, you seem to have skipped the first day of contract law. The DSRs are not the SoGA, but you'll note that the definition is still:

 

“distance contract” means any CONTRACT..."

 

Even the Consumer Direct advisors you criticise seem to have a better grasp of this stuff than you do.

[perplexity]

Sigh. The user agreement is not a contract between ebay and the buyer.

 

 

The User Agreement is a contract between eBay and an eBay member. There is no separate contract for a seller as opposed to a buyer.

 

8)

[Kraken1]

No it isn't.

[perplexity]

We've seen this sort of thing before:

 

Anyway as I said, an eBay agreement in this instance is not binding in the eyes of the law so not sure how the judge came to the conclusion and awarded costs to the other party. On appeal I am sure it will get thrown out.

 

...

what this judge is saying , you go in a supermarket pick something up get to the till and change your mind before you pay for it , and refuse the item , but you still have to pay, rollocks , the Judges decision is erred in Law

 

-----

 

Those comments were posted when the buyer who had failed to pay had already lost the case, forced to pay!

 

The difference between the win of an item on eBay and a punter's response to a private advertisement online is that the users must accept eBay Europe's User Agreement as part of the registration procedure.

 

It is a breach of the User Agreement for a buyer not to pay for an item or for a seller not to deliver, except in the limited circumstances stated. It is also a breach of the User Agreement to sell any counterfeit items or otherwise infringe the trade marks of third parties. The User Agreement also requires compliance with eBay's policies. eBay have a series of policies covering listing, buying, selling, feedback, prohibited and restricted items and intellectual property. These policies control quite tightly what buyers and sellers can and cannot do on the Site. For example, certain types of items cannot be sold at all and items cannot be listed where the authenticity of the item is disclaimed or questioned.

 

An eBay seller acts as an eBay member, bound by the terms of the User Agreement..

 

8)

[Surfer01]

I don't recall making the quote you have highlighted above. On which thread was that?

[perplexity]

On which thread was that?

 

Click the little blue button beside the member name at the top of a quote.

It links directly to the original.

 

----

[sequenci]

There cannot be a contract where there is no consideration. Fact.

 

Actually, there can be but that's a WHOLE different argument.

[Surfer01]

We've seen this sort of thing before:

 

Those comments were posted when the buyer who had failed to pay had already lost the case, forced to pay!

 

The difference between the win of an item on eBay and a punter's response to a private advertisement online is that the users must accept eBay Europe's User Agreement as part of the registration procedure.

 

It is a breach of the User Agreement for a buyer not to pay for an item or for a seller not to deliver, except in the limited circumstances stated. It is also a breach of the User Agreement to sell any counterfeit items or otherwise infringe the trade marks of third parties. The User Agreement also requires compliance with eBay's policies. eBay have a series of policies covering listing, buying, selling, feedback, prohibited and restricted items and intellectual property. These policies control quite tightly what buyers and sellers can and cannot do on the Site. For example, certain types of items cannot be sold at all and items cannot be listed where the authenticity of the item is disclaimed or questioned.

 

An eBay seller acts as an eBay member, bound by the terms of the User Agreement..

 

8)

 

And the general feeling on that thread is that the judge's decision was incorrect and I happen to agree with that. I am now douibting the wisdom of your words. I think it would be best if I ignored your advice..

Edited October 22, 2010 by Surfer01

[Kraken1]

You are a wise man.