Ebay - Been Conned and feel very very silly - any advice?!

[Dragons Dennis]

Give it a rest you two!

[perplexity]

 

What I'm on about, Kraken1, is your peculiar reluctance to justify, which I doubt that anybody understands.

 

The precedent of Davis v Sumner was about the prosecution of an individual whose usual business was not to sell cars, who supplied a car to a dealer.

 

What has this to do with ebay, where the sale of goods is obviously not so "purely private", which is to say that nobody else was involved but the buyer and the seller?

 

Do you deny that the false description of an odometer reading on eBay would be tantamount to a strict liability offence?

 

P.S.

 

Give it a rest you two!

 

No I shall not.

 

For as long as the moderators allow the insult, the deliberate defamation of my integrity to continue, I reserve the right to reply, in kind.

Edited May 24, 2011 by perplexity
PS.

[hightail]

What then has this to do with ebay, where the sale of goods is obviously not so "purely private"

 

It's the definition of 'private' which is confusing you. There are two types of seller on ebay. One is a business seller who is subject to the full weight of consumer law. The other is an individual selling items they have owned and no longer want or need and is known as a 'private' seller. Whether or not the latter pays ebay, the local paper or the local auction house to sell their second-hand items they are still not considered to be acting as a business.

 

I suspect your real beef is with those who should admit to trading but pretend to be private sellers to avoid having to comply with consumer law. Successful prosecution of such individuals still doesn't mean I'd be considered a business if I sell my kid's bike.

[hightail]

Do you deny that the false description of an odometer reading on eBay would be tantamount to a strict liability offence?

 

I have no idea but it is misrepresentation - the one part of SoGA which does apply to non-business sales.

[perplexity]

It's the definition of 'private' which is confusing you.

 

 

To the contrary, it is abundantly clear to me that there is no such definition.

 

The term does not so much as exist as a part of the legislation, nor did eBay refer to one from elsewhere, the OFT for instance, so the members are left to argue amongst themselves about it.

 

Try to find the OFT's definition, online, or write to ask, and see how far you get with that.

 

 

There are two types of seller on ebay. One is a business seller who is subject to the full weight of consumer law. The other is an individual selling items they have owned and no longer want or need and is known as a 'private' seller. Whether or not the latter pays ebay, the local paper or the local auction house to sell their second-hand items they are still not considered to be acting as a business.

 

 

To be distinguished by who or what?

 

Do you mean to suggest that an eBay seller is entitled to excuse himself from the law?

 

Do you mean to suppose that eBay owns the authority to determine whether or not the law applies?

 

It's the OFT, not me, who complain that nobody knows, when they respond to the European Commissioner's consultations.

 

I have no idea but it is misrepresentation - the one part of SoGA which does apply to non-business sales.

 

Which would have to be a sale which is not an undertaking to a supply goods or services, otherwise than free of charge.

 

 

P.S.

 

Just to be clear about it, the effect of the House of Lords ruling, Davies v. Sumner was that the supplier of a car could not be prosecuted for falsifying an odometer reading because the sale of cars was not his usual line of business.

 

As matter of opinion, does anybody here believe that an eBay seller of any sort should or would be allowed to get away with that?

Edited May 24, 2011 by perplexity
PS.

[Kraken1]

"The precedent of Davis v Sumner was about the prosecution of an individual whose usual business was not to sell cars, who supplied a car to a dealer.

 

What has this to do with ebay, where the sale of goods is obviously not so "purely private", which is to say that nobody else was involved but the buyer and the seller?"

 

Nothing. You asked for an example of a case where the courts refused to apply consumer protection legislation because of a seller's claim to be an individual. You'll recall you said you searched high and low and couldn't find one, ever. I supplied the names of the first few I came across. There are plenty of others.

 

"Do you deny that the false description of an odometer reading on eBay would be tantamount to a strict liability offence?"

 

Depends- is the seller acting in the course of a business? If it were me, selling a car to you then it wouldn't be. There'd be grounds for you to take action under other legislation, but not th consumer protection from unfair trading regs.

 

"Just to be clear about it, the effect of the House of Lords ruling, Davies v. Sumner was that the supplier of a car could not be prosecuted for falsifying an odometer reading because the sale of cars was not his usual line of business."

 

No, the seller of a car could not be prosecuted because he was acting as a consumer, he was not acting in the course of a business and therefore consumer protection legislation did not apply And to modernise it, if he were found to be a business then he wouldn't get prosecuted under the cputrs either because he would be selling to another business. Other regs would apply.

[perplexity]

Nothing. You asked for an example of a case where the courts refused to apply consumer protection legislation because of a seller's claim to be an individual.

 

No I did not.

 

The term I used was "the consumer protection legislation"; N.B. "the", the subject being the legislation to be construed according to s.210 of the Enterprise Act, defined be the relevant lists and orders.

 

Depends- is the seller acting in the course of a business? If it were me, selling a car to you then it wouldn't be. There'd be grounds for you to take action under other legislation, but not th Consumer Protection From Unfair Trading regs.

 

Balderdash.

 

The Regulations do not so much as refer to "the course of a business"; the term does not appear. The closest you get to that is the "ordinary course of business" with regard to the receipt of an advertisement for publication.

 

You may also care to note that it's an offence for the commercial practice of a trader to misleadingly fail to comply with a commitment contained in a code of conduct which the trader has undertaken to comply with. [s.5(3)]

 

“trader” means "any person who in relation to a commercial practice is acting for purposes relating to his business, and anyone acting in the name of or on behalf of a trader" and a business includes "any undertaking in the course of which goods or services are supplied otherwise than free of charge".

 

This is not an idea of mine. Those are the terms of the law.

 

All the sellers on eBay are of course consumers, consumers of the eBay service, the trader they act in the name of.

Edited May 24, 2011 by perplexity
re-draft

[Kraken1]

"Originally Posted by Kraken1:

Depends- is the seller acting in the course of a business? If it were me, selling a car to you then it wouldn't be. There'd be grounds for you to take action under other legislation, but not th Consumer Protection From Unfair Trading regs.

 

Balderdash..."

 

Would anyone else like to correct the above and point out why Perpy is very very wrong? If you need a clue, shout.

[Kraken1]

No takers? OK, then, if I must - the CPUTR specifically state that that they apply to transactions (either transactional decisions or contracts) between a business and a consumer.

 

Prohibition of unfair commercial practices

 

3.—(1) Unfair commercial practices are prohibited.

 

(2) Paragraphs (3) and (4) set out the circumstances when a commercial practice is unfair.

 

(3) A commercial practice is unfair if—

 

(a)it contravenes the requirements of professional diligence; and

 

(b)it materially distorts or is likely to materially distort the economic behaviour of the average consumer with regard to the product.

 

(4) A commercial practice is unfair if—

 

(a)it is a misleading action under the provisions of regulation 5;

 

(b)it is a misleading omission under the provisions of regulation 6;

 

©it is aggressive under the provisions of regulation 7; or

 

(d)it is listed in Schedule 1.

 

 

“commercial practice” means any act, omission, course of conduct, representation or commercial communication (including advertising and marketing) by a trader, which is directly connected with the promotion, sale or supply of a product to or from consumers, whether occurring before, during or after a commercial transaction (if any) in relation to a product;

 

“consumer” means any individual who in relation to a commercial practice is acting for purposes which are outside his business;

 

“trader” means any person who in relation to a commercial practice is acting for purposes relating to his business, and anyone acting in the name of or on behalf of a trader;

 

So not so much 'balderdash' then. I suspect Perpy meant to say 'sorry, I was giving wrong advice again. I'll try not to in the future.'

 

On a tangent, the scottish law commission are currently consulting on whether to grant consumers a right of redress under the regs, currently they are not very useful to a consumer and would lead to a prosecution and conviction only, in practical terms a consumer cannot make use of them. the law commission is recommending that this be changed, along with introducing provisions for compensation for distress and inconvenience where a business engages in certain practices. This is probably a good idea.

[perplexity]

As I wrote before, with a link provided to legislation.gov.uk, the Regulations do not so much as refer to "the course of a business"; the term does not appear.

 

Instead of wasting the space, Kraken1 your time would be better spent on learning to read.

 

 

None the less, Sections 26 and 27 amend Part 8 of the Enterprise Act to include the Regulations, so a reference to a listed Directive must be construed in accordance with section 210 of the Enterprise Act, which means that a business includes — any undertaking in the course of which goods or services are supplied otherwise than free of charge. .

 

Are you trying to tell us that this is not what happens on eBay?

 

 

P.S.

 

"It shall be the duty of every enforcement authority to enforce these Regulations.", so if you reckon that is not very useful to a consumer, I suggest to complain to them, not me. Part 8 of the Enterprise Act binds the Crown, so it's a duty, not an option, to enforce; a consumer may act against an errant enforcer.

Edited May 25, 2011 by perplexity
PS

[Kraken1]

Whatever bud. Think what you like. I'm Hopeful that readers will give your comments the weight they deserve. I'm happy your posts speak for themselves.

[honeybee13]

Hello guys. Has anyone noticed the OP hasn't been around for a week now? I think she may have glazed over .

 

My best, HB

[Kraken1]

Quick note, I've not been arguing with myself, a number of posts have been deleted.