£675 laptop not as described...no eBay help.

[ivy555]

Dear members,

 

I have a problem from eBay which I try to describe in brief. I bought a Laptop for £675 with 2 years warranty from a seller that said on the ad 'in good condition.' When received it has a faulty fan, the operating software not installed correctly and the computer was in safe mode the first time I started it, and none of the control panel keys working drivers not installed. I wrote the seller and after few email exchange he agreed to send a £100 cheque to reimburse me for this. I decided to open a case on eBay to protect myself on timely manner. When I got the cheque and tried to cash it he cancelled it and said since I opened the case he had to cancel. So again after weeks of exchanging email during the holidays, he agreed this time to pay via Paypal £100. again he didn't and after I escalated the case, for some reason that is not yet clear to me eBay protection plan did not go in my favour and they close the case after making me wait for over a week. After this I appealed to eBay and called them twice. But both times it seems I was talking to a machine and didn't feel I'm getting anywhere no personal response. I also requested explanation why this was turned down but have not received any concrete answers, rather unrelated form emails like saying "we understand your frustration and really try to help you, but this seem to be a warranty matter..." so then I said to them this had nothing to the with warranty, the item was described as 'in good working condition' and arrived faulty, incomplete and unusable especially for £675 I paid, do I have to buy broken item and then use warranty to use eBay? Additionally, The seller had this item on Gumtree for a quick sale of £400 asking 'must sale today or tomorrow' about a week before the eBay auction, and I have the page saved as evidence, also I have all his emails as evidence that he admits the faulty fan and says he has already sent to Toshiba for repair and it was nothing, and I have his cancelled cheque, but eBay did not ask for any of the evidence.

 

So all in all eBay is not letting me return the item for full refund even though I filed exactly on time and have followed all their claim steps. Also the seller is never partially refunded me even when he promised few times and sent a cheque that he later cancelled. So I was wondering what can I do in your opinion. I'm a woman, University student and a mum, don't have enough time and knowledge to fix and repair the laptop or want the hassle and besides I paid top price because it said in good working condition. Can I take him to court? can I take eBay to court for not respecting their own 'not as described' policy?

 

Any advice would be comforting and greatly helpful.

 

Warm regards to all

 

Ivy

[callumsgran]

Hi, how did you pay for it? Did you use paypal? Paypal nearly always side with the customer so why didn't you claim through them?

Can i ask why you would pay £675 for a second hand laptop?

[ivy555]

Thank you for replying callumsgran. Well to answer your last question first. The laptop is the top specs. (quad processor, etc.) it is actually good enough for gaming, but I need it for editing video for my film school not playing games. I don't even have one game. The lap top really is worth around £600 if it was in perfect condition (as I though it was) and since it is only a year old with 2 years warranty left on it (they are being sold now foe £1100 new). But just to send it to Toshiba costs £40 as they are in Germany. About Paypal I made a big mistake and when I opened the case with ebay I also opened it with Paypal as well and they quickly closed that one since the eBay one was opened. So am I out of luck with Paypal now? I will call them tomorrow and see.

[nicolee2931]

I would speak to your bank and see about getting a chargeback.

[callumsgran]

Yes i think once ebay have signed you off there is not much else you can do except as above said go to the bank and do a chargeback

Good luck, keep us posted

[BankFodder]

I have only had a very quick read of this thread but from what I gather, I don't really see that there should be any problem in sorting this matter out.

 

I gather that you bought a laptop from an eBay seller and that it was faulty and that you have let you know about this. Do you know if this person is a commercial seller? You say that you were given a two-year warranty. Where does the warranty come from? From the seller or is it a Toshiba warranty?

 

Presumably you have got the address of the seller.

 

I hope that you have still got the bounced cheque. If you sue on a bounced cheque you will win automatically. This means that a bounced cheque is nearly as good as the cash represents – of course except that you will have to enforce a judgement to actually collect your money.

 

Please will you come back here and let us know a bit more about the seller. We need to know if the seller is a commercial seller? If you have is address? And have you still got the bounced cheque? Also it would be useful to see the auction description.

 

I don't really understand why you allow this to go on so long.

 

If you have all the correct information, then I would say that the route is fairly clear.

 

I would say and a seven-day letter before action and then immediately I would sue him in your local county court for a refund on the laptop or the repair value. I would also sue him on the cheque in the same action. This does not mean that you would get the cheque value on top of everything else, but in the worst case that if you lost the action (highly unlikely) then at least you would have your £100.

 

If you get the judgement – even for the £100, if you are unable to enforce the judgement against the seller I would then start to make a claim against eBay and where you have a judgement in your hand, eBay would be silly to resist your claim and you could force them if you wanted.

 

Let me say that even if the seller is a private seller, you still have a good chance of success for the refund of the laptop – and certainly you have 100% chance of success of getting the cheque value.

 

However it will help if he is a commercial seller. He doesn't just have to be registered as a commercial seller – even if he appears only to be a private seller, have a look at his feedback and previous transactions. If it seems clear that actually he is really a seller merely acting in a private capacity, then you can sue him as a business. The advantages of suing him as a business will be that you can sue him in your local court and he will be forced to travel to you. This will add additional pressure on him to sorted out and stop being silly.

 

As this seller has very clearly demonstrated to you that he is not to be trusted in his promises or in his cheques, you should not accept any promises from him to settle in return for withdrawing an action without actually having the money in your hand and cleared.

 

Don't forget the you will be able to recover your court fee as well.

 

I suggest very strongly that you buy a copy of Patricia Pearl's County Court guide which you can buy from us and a price which is almost the same as the price that you would pay on Amazon. We would prefer that you buy from us because we get a small commission. However if you prefer to save a pound or so, then buy directly from Amazon. The important thing is that you buy it and that you understand how to bring a County Court action. County Court actions are very easy and you should not be worried by them.

[perplexity]

We need to know if the seller is a commercial seller?

 

We have been through this before.

 

Section 210 of the Enterprise Act defines a consumer, for the purpose of enforcing the consumer protection legislation.

 

Is it an undertaking in the course of which goods or services are supplied otherwise than free of charge?

 

8)

[ashmk]

Oh **** *** you ****

[ivy555]

I want to thank everyone who took time and replied to my problem. They were all very good thoughts that I will follow and I feel a lot better now knowing this information. To answer the previous question the seller is not a commercial seller. He is a very low activity eBay private seller. One or two sells every few months. I was very busy today but tomorrow Tue, first I will try to call eBay, then my bank and also Paypal before any other actions. I'll keep you posted.

[BankFodder]

Ivy, good luck with the phone calls but I can tell you now that they will get you nowhere.

 

Unfortunately as you are suing a private seller, the action will have to be heard in his local county court.

 

However, there may be a way round that. Let us know when you have decided to take action.

[andydd]

I've sold a few PC's on Ebay and it can be rather problematic, Ive had people compalin about all sorts of minor matyers, for eaxmple the PC didnt have a COA (Certificate of Authenticity) sticker on it.

 

The buyer claimed the PC was in 'good condition', this is rather a vague statement and it different from perfect or 100% working order it could also be taken to mean the visiual condition of it and nothing to do with the Operating System.

 

I dont really understand how the OS can 'not be installed correctly', generally it either is installed or it isnt or it may be that it just booted into safe mode the first time, this by itself is nothing that unusall.

 

By the sounds of it Ebay/Paypal decided that the seller wasn't at fault, there fore that avenue cannot be pursued any further so it may mean legal action could be taken however as pointed out this may mean attending his local county court which may be many miles away.

 

Could the buyer actually list all the faults ?

 

Takling Ebay to court would be pretty impossible.

 

Andy

[perplexity]

I am at a loss to see why they expect eBay and Paypal to treat all the members, all the listings all the disputes on the same basis, with the same set of rules to apply as if the law that applies to the basis would not.

 

Transactions on eBay are bound by the User Agreement, not private.

 

Recital (10) of the Distance Selling Directive should apply:

 

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;

8)

[perplexity]

Takling Ebay to court would be pretty impossible.

 

The User Agreement provides for the possibility!

 

What happens if a seller threatens to take eBay to Court on the grounds that eBay has no right to judge that an item was not correctly described because it's a strict liability criminal offence to mislead consumers, the proof of which would have to be the conviction of the offender?

 

I predict that eBay caves in; the seller wins.

 

[andydd]

The User Agreement provides for the possibility!

 

What happens if a seller threatens to take eBay to Court on the grounds that eBay has no right to judge that an item was not correctly described because it's a strict liability criminal offence to mislead consumers, the proof of which would have to be the conviction of the offender?

 

I predict that eBay caves in; the seller wins.

 

 

Ok. Whilst 'possible' I can imagine it would be an absolute nightmare, first of all they appear to be based in Luxumbourg which complicates things. It is very unclear what exactly you would take them to court for, (legal action against the seller would be far easier) "on the grounds that eBay has no right to judge that an item was not correctly described because it's a strict liability criminal offence to mislead consumers, the proof of which would have to be the conviction of the offender?" sounds like a nitemare to me and someone would have to be very brave indeed to try and tackle that, no-one has mentioned any criminal wrong-doings here.

 

I am no a stranger to court action, but whilst I would consider legal action against a seller or buyer I dont believe i would consider it against Ebay.

 

Andy

[andydd]

I am at a loss to see why they expect eBay and Paypal to treat all the members, all the listings all the disputes on the same basis, with the same set of rules to apply as if the law that applies to the basis would not.

 

Transactions on eBay are bound by the User Agreement, not private.

 

Recital (10) of the Distance Selling Directive should apply:

 

8)

 

This of course is being discussed in depth elsewhere, whilst no expert on DSR, I am of the opinion that it doesnt apply to private sellers on Ebay.

 

For example, if I were to buy an item online, I have the right under DSR to return it for a full refund even if there is nothing wrong with the item. I do not believe I have the same right when buying/selling on Ebay, I have of course protection under SNAD rlues to return a faulty (or just wrongly described) item, however I don't believe it gives me the right to return something just because I dont like the colour or another friend bought me the same item.

 

Andy

[perplexity]

I am of the opinion that it doesnt apply to private sellers on Ebay.

 

So am I, strangely enough, but also of the opinion that eBay's categorisation of a "private seller" is bogus, a deliberate deception.

 

The Regulations apply to a distance contract concerning goods or services. If the contract is private, an attempt to operate apart from the capacity defined by the User Agreement, the Regulations would probably not apply, nor would eBay's dispute resolution procedure.

 

The Guidance provided the OFT confirms this understanding:

 

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

etcetera.

 

The DSRs apply to the User Agreement or else there would not be the right to cancel any contract formed by bidding on an eBay listing because the Agreement especially insists that "When you place a bid on eBay, you enter a binding contract." Not only do they insist on this, the success of the market depends upon the expectation that eBay sanctions against a violation and is entitled to do so.

 

For example, if I were to buy an item online, I have the right under DSR to return it for a full refund even if there is nothing wrong with the item. I do not believe I have the same right when buying/selling on Ebay.

 

 

To the contrary, the Regulations provide no right to return goods. If a seller would rather not accept a return there is no way to force to do so. What the Regulations provide is the right to cancel the contract and get your money back without a duty to return the goods and without a duty to give a reason to cancel.

 

[Crapstone]

So am I, strangely enough, but also of the opinion that eBay's categorisation of a "private seller" is bogus, a deliberate deception.

 

The Regulations apply to a distance contract concerning goods or services. If the contract is private, an attempt to operate apart from the capacity defined by the User Agreement, the Regulations would probably not apply, nor would eBay's dispute resolution procedure.

 

The Guidance provided the OFT confirms this understanding:

 

etcetera.

 

The DSRs apply to the User Agreement or else there would not be the right to cancel any contract formed by bidding on an eBay listing because the Agreement especially insists that "When you place a bid on eBay, you enter a binding contract." Not only do they insist on this, the success of the market depends upon the expectation that eBay sanctions against a violation and is entitled to do so.

 

 

 

 

To the contrary, the Regulations provide no right to return goods. If a seller would rather not accept a return there is no way to force to do so. What the Regulations provide is the right to cancel the contract and get your money back without a duty to return the goods and without a duty to give a reason to cancel.

 

 

The only deception would be that of the seller and there is a difference between sales accordingly.

 

From some of the things you say perplexity you'd be a multi-millionaire by now and repenting at leisure instead of just being (insert as appropriate) and (insert as appropriate)

[perplexity]

When L'Oreal complained about "private seller" status with regard to eBay's liability the opinion of Mr Justice Arnold was that a reference to the EJC is required. According to counsel for eBay Europe this was "long overdue" and I concur with that.

 

eBay did not so much as dare to contest that the DSRs do not apply to a "private seller":

 

Counsel for eBay Europe did not concede this, but nor did he directly dispute it.

http://www.bailii.org/ew/cases/EWHC/Ch/2009/1094.html#para433

 

-----

 

The only deception would be that of the seller and there is a difference between sales accordingly.

 

A trader my be prosecuted under the The Consumer Protection from Unfair Trading Regulations 2008 but with nothing sold. The issue is whether or not a representation or omission "causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise".

 

How many of the "private sellers" would continue to sell on eBay if forced to declare their names and geographic addresses, as is required by law?

 

I do not believe that you would rather not know who a seller is.

 

[IdaInFife]

Does you sellers name begin with a K and you bought this late dec?

[Crapstone]

When L'Oreal complained about "private seller" status with regard to eBay's liability the opinion of Mr Justice Arnold was that a reference to the EJC is required. According to counsel for eBay Europe this was "long overdue" and I concur with that.

 

eBay did not so much as dare to contest that the DSRs do not apply to a "private seller":

 

http://www.bailii.org/ew/cases/EWHC/Ch/2009/1094.html#para433

 

 

 

A trader my be prosecuted under the The Consumer Protection from Unfair Trading Regulations 2008 but with nothing sold. The issue is whether or not a representation or omission "causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise".

 

How many of the "private sellers" would continue to sell on eBay if forced to declare their names and geographic addresses, as is required by law?

 

I do not believe that you would rather not know who a seller is.

 

 

And more if strict legislation were applied across the board and not just Ebay. The end of Caveat Emptor and Laissez-Faire? Quote as much as like from L'Oreal but it's not concluded. Differences still remain between that of a 'private seller' and a 'trader'.

[perplexity]

The end of Caveat Emptor and Laissez-Faire?

 

 

Caveat Emptor and Laissez-Faire ends when a member subscribes to the eBay User Agreement, the idea being that eBay is expected to Caveat the Emptor instead of the Emptor being expected to Caveat himself, and that is supposed to apply to all the buyers and all the sellers, not just to some of them.

 

The trouble then is that eBay wants to have it both ways. In the one hand they enjoy the benefit of being expected to regulate what happens so the buyers feel safe and secure. Then as soon as somebody wants them to cough up because they failed to regulate they do a U-turn, pretending that what the sellers get up to is beyond their control.

 

Hypocrites.

 

8)

Edited January 13, 2011 by perplexity
spelling

[Crapstone]

And is this all concealed or free for all to read?