Distance selling Regs and eBay?

[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.

[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.

[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.

 

[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

 

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[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 ?

 

[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.

 

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[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.

 

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[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..

 

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[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.

 

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[perplexity]

A Paris Commercial Court awarded a 40 million Euro damage claim against eBay, eventually reduced to 5.7 million on appeal, because of the failure to prevent the sale of trade marked goods on the site, and then again a further fine of 1.7 million Euro, December 2009 because the sellers continued to advertise the goods.

 

eBay's defence was basically that "ebay does not supply any goods", which would seem to have not been so wise with hindsight.

 

8-)

[perplexity]

The Distance Selling Regulations and the the Sale of Goods Act apply to contracts only. The Consumer Protection from Unfair Trading Regulations 2008 is the statute to apply to a trader, because the Regulations define offences.

 

The right to cancel provided by the Distance Selling Regulations is therefore an alternative to the Sale of Goods Act rather than an addition. With the contract cancelled there is no contract to apply the Sale of Goods Act to. From there on the cancelled contract counts only to the extent that the Regulations refer to it.

 

8-)

[perplexity]

The SOGA and the DSRs apply to the extent that a contract exists and to the extent that the contract is legitimate, as per section 3 of the Sale of Goods Act.

 

The CPUTRs apply to the practice of a trader in general and may thus apply to advertising, with no consumer yet involved as an actual buyer.

 

Section 10(2) of the DSRs is the part they miss when the punters in their ignorance expect to cancel a contract while continuing to complain about the quality of the goods or the fact that goods were not delivered: On eBay for instance the correct way to go about it is for a seller to declare a mutual agreement to discontinue the transaction. The incorrect way to go about it is to claim to have cancelled the contract and to also proceed to the Paypal Dispute Resolution Centre to complain about the performance of a contract.

 

(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.

To complain that goods paid for were not delivered or to complain that the goods were bad is to treat the contract as if it had been made.

 

8-)

[perplexity]

Pretty much the entirety of that original posting is wrong.

 

If you read an advertisement on the Internet and then proceed to finalise the contract when you go to see the goods the Distance Selling Regulations would not apply because the Regulations apply to a contract concluded at a distance and the finalisation of a contract is the conclusion of it.

 

"concluded" is the key term, not "commenced".

 

If, on the other hand, you agree to a seller's terms online and promise to purchase it would make no difference if you go to collect the goods and pay in cash so long as the deal was already done, with no caveat for instance that you wish to inspect the goods before you agree to pay. If that's the case the contract of sale would not be concluded.

 

 

“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;

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

[perplexity]

For those sufficiently blessed with an adequate comprehension of English there was nothing so new to learn about about the Distance Selling Regulations anyway, except to have failed to bother to read them.

 

The statute came to force a full ten years ago [31 October 2000] and was not since amended, except that Part 8 of the Enterprise Act subsequently defined how the consumer protection legislation must be construed, in general.

 

Those are the facts of the matter.

 

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[perplexity]

For good measure, section 210 of the Enterprise Act is to be found here:

 

http://www.legislation.gov.uk/ukpga/2002/40/section/210

 

If anybody has anything to say on the subject it may as well be said here and now, to refer back to instead of disrupting thread after thread.

 

The definition of a consumer applies by way of 212(4):

 

References to a listed Directive or to a listed Regulation must be construed in accordance with section 210.

With regard the DSRs the listed Directive is 1997/7/EC

 

The usual point of contention is that a business includes

 

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

8-)

[perplexity]

There was already a thread on "Distance selling Regs and eBay?"

 

See posting #6.

 

Consumer Protection from Unfair Trading Regulations 2008 may be applied to invitations to buy but with no actual acceptance of a supplier's offer to sell. The DSRs and the SOGA apply to a contract.

 

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Edited January 11, 2011 by perplexity

[perplexity]

There was already a thread on "Distance selling Regs and eBay?"

 

See posting #6.

 

Consumer Protection from Unfair Trading Regulations 2008 may be applied to invitations to buy but with no actual acceptance of a supplier's offer to sell. The DSRs and the SOGA apply to a contract.

 

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