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

[perplexity]

perplexity- it is a bit of a grey area as according to eBay the policy on Distance Selling states that "the DSR generally apply to sales to non-business buyers made by sellers acting in the course of a business, which have been made at a distance".

 

There is an often quoted mention of "Sales by private individuals not acting for business purposes" in the OFTs guidance for businesses on distance selling, which must be construed according to section 210 of the Enterprise Act, according to which a business includes "any undertaking in the course of which goods or services are supplied otherwise than free of charge".

 

2,19 of the Guidance then proceeds to inform:

 

How do the DSRs apply to auction sites on the internet?

 

This depends on specific circumstances, for example:

 

• the contractual relationship between the website provider and

the seller

• whether the seller is acting as a supplier within the meaning of

the DSRs

• whether the seller is operating under an organised distance sales

or service provision scheme, and

• whether the buyer is a consumer within the meaning of the DSRs.

 

I think it fair to say that eBay is an organised distance sales or service provision scheme that all the sellers operate under so in view of a contractual relationship between the website provider and the seller, the commercial capacity that eBay provides, exactly equivalent for all the members, I reserve the right to treat them all on the same basis. eBay and Paypal treat them all on the same basis when a dispute between a buyer and a seller is referred to their auspices, and so shall I.

 

An application of the Regulations has to depend on the contractual relationship with eBay, because the User Agreement prescribes the terms of a contract between the buyer and the seller that the Regulations apply to. According to the agreement with eBay: Buyers cannot commit to buying an item (either by winning the item or buying an item in a Buy It Now listing) without paying. Therefore, execpt to construe that the Regulations apply to those terms, there is no right for any member to cancel a contract on eBay under section 10 of the DSRs.

 

This appears to be confirmed by the European Directive's recital (10):

 

.... 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;

 

It amazes me that the sellers who proudly confess to their legal responsibilities are so willing to put up with the cheats who continue to dodge the law, with eBay's connivance, nor do I hear of a buyer who would rather not be told the address of a seller he buys from.

 

 

P.S.

 

 

Other than that you are right, the dsrs only apply to business sellers.

 

Section 4 of the Distance Selling Regulations tells us, precisely, what they apply to:

 

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

 

A seller is a person. A contract is not a person, and the contract need not be a contract of sale, just a 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.

 

It is completely irrelevant, whether or not eBay is a company. eBay could just as well be a private person and still be the supplier of the eBay service, the organised distance sales or service provision scheme, the means of distance communication, the website provider.

 

Edited May 20, 2011 by perplexity
P.S.

[Kraken1]

Told you! This thread is like a tosh magnet for Perpy. A post of almost complete rubbish.

[raydetinu]

Perpy cant help it! poor thing. Sort of closet oppressed lawyer wannabe!

perhaps have a whip round and get soapbox for Hyde Park Corner for him, might keep him off here!

[Kraken1]

Yeah. We should sympathise really. One of the problems is reading. Most of us, for example, read around a subject before offering advice, or read an entire SI or act. In this case he just stopped and didn't add in the bits that clarified that "“distance contract” means any contract concerning goods or services concluded between asupplier and a consumer under an organised distance sales or service provision scheme runby the supplier who, for the purpose of the contract, makes exclusive use of one or moremeans of distance communication up to and including the moment at which the contract isconcluded;"and that "“supplier” means any person who, in contracts to which these Regulations apply, is acting inhis commercial or professional capacity;"Maybe we could have a whip around? Buy him a textbook or something?

[hightail]

Perpy cant help it!

 

Every community has a Perpy. In local communities they confine themselves to insisting the village football team wear team blazers and caps when travelling to a match or some such rubbish because that was the rule in the 1920s. One saving grace on this forum is that Perpy never actually offers any practical advice whereas those who know what they're talking about do. Hopefully most of those who come here in need will be able to see the difference.

[perplexity]

Yeah. We should sympathise really. One of the problems is reading. Most of us, for example, read around a subject before offering advice, or read an entire SI or act. In this case he just stopped and didn't add in the bits that clarified that "“distance contract” means any contract concerning goods or services concluded between asupplier and a consumer under an organised distance sales or service provision scheme runby the supplier who, for the purpose of the contract, makes exclusive use of one or moremeans of distance communication up to and including the moment at which the contract isconcluded;"and that "“supplier” means any person who, in contracts to which these Regulations apply, is acting inhis commercial or professional capacity;"

 

You therefore apply the Regulations, by considering section 3, a part of the Regulations, so concede the point: The Regulations apply to distance contracts other than excepted contracts.

 

Section 4 lists the excepted contracts, no part of which applies to a sale on eBay, or those so keen to encourage the crooks at large to deny the Regulations would have told us that.

 

It is therefore a deliberately ignorant fabrication, a defamatory offence to suppose that I did not consider as much for what I wrote before is precisely what appears as a part of the definition of a distance contract, according to section 3:

 

The contract need not be a contract of sale, just a 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.

(emphasis added).

 

eBay is of course an organised distance sales or service provision scheme run by eBay, the supplier of the service, so the commercial capacity of the seller to eventually supply the goods is of course the capacity provided by the service, according to the User Agreement, the same for all the members.

 

This should not be so difficult to appreciate. Trade on eBay is commerce. Sellers pay fees to list. It is not just done for fun.

 

8-)

[perplexity]

One saving grace on this forum is that Perpy never actually offers any practical advice whereas those who know what they're talking about do. Hopefully most of those who come here in need will be able to see the difference.

 

And that is another lie, a deliberately ignorant, demonstrably false, gratuitously offensive fabrication.

 

Here is some practical advice: If that is the best you have to offer, with nothing of any relevance to contribute with regard to subject of discussion, don't bother. Keep your stupid crap to yourself.

 

 

P.S.

 

If in all sincerity you believe that it's a good idea to allow a seller on eBay to conceal his name and address; if you are honestly and seriously so willing to purchase goods from such an individual, it might be better to tell us what your interest is in this, and why you would, and the same would go for Kraken1.

Edited May 20, 2011 by perplexity
P.S.

[Kraken1]

We're not saying that it is a good idea that eBay allows sellers to coceal stuff, we're just saying that your advice isn't credible. And is mostly wrong. Like the above, which is about as credible as the chap at the local who insists he was chilling with a rifle on the grassy knoll in nov 1963.

[hightail]

Think I must have hit a nerve

[perplexity]

Thanks anyway, but anonymous opinions as to what is credible or wrong are cheaper than dirt, to be found on any online forum without so much as the asking, already seen before, in spades.

 

In the mean time, actions speak louder than words. What is not so easy to come by is the answer to this sort of question:

 

When and where did a legal action or prosecution against an eBay seller fail, because a judge refused to apply the Distance Selling Regulations, or any other part of the consumer protection legislation because of a seller's pretension to "private", so excepted?

 

When and where was an eBay seller prosecuted, ever, for "Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer"? (CPUTR Regs, Schedule 1.22)

 

I seriously doubt that such a charge could ever succeed as such because of the self evident fact that an eBay seller acts for a business purpose, to sell goods, in view of the definition of a business provided by s.210.

 

What might be more likely to succeed is the prosecution of an eBay shill, who posts to an internet forum as if on behalf of consumers, but works for the company.

[hightail]

When and where did a legal action or prosecution against an ebay seller fail, because a judge refused to apply the Distance Selling Regulations

 

Quote one which succeeded against a private seller. If no such case has been brought then it's a sort of truth to say one has never failed but it's equally true to say one has never succeeded.

[perplexity]

Quote one which succeeded against a private seller. If no such case has been brought then it's a sort of truth to say one has never failed but it's equally true to say one has never succeeded.

 

Read the thread.

 

I had already told you that during the course of L'Oreal versus eBay, a judge found that a number of "private" sellers were no such thing. The judge was "not persuaded that it (DSRs] would be relevant to the issues arising in this case", but it was most certainly not the case that any defendant was let off because of the claim to be private.

 

What I want to know is why there is never the news of the criminal conviction of this sort of seller, to deter the practice. It is impossible to believe that the OFT are anything but well aware of what goes on.

[Kraken1]

I refer you to my earlier comment: blah blah blah. those three words are all your strange nonsense-filled posts are worth. You must be quite a cross person that no-one in the entire world agrees with you.

[hightail]

a judge found that a number of "private" sellers were no such thing

 

So how does that prove private, non-business sellers are subject to DSRs?

[perplexity]

So how does that prove private, non-business sellers are subject to DSRs?

 

 

Nobody has to. The burden of proof is on the supplier, to claim an exception.

 

(22) Whereas in the use of new technologies the consumer is not in control of the means of communication used; whereas it is therefore necessary to provide that the burden of proof may be on the supplier;

 

(1997/7/EC)

[hightail]

(3) 'supplier` means any natural or legal person who, in contracts covered by this Directive, is acting in his commercial or professional capacity;

 

From the same document. If I sell a bicycle because my child has outgrown it I am not acting in my commercial or professional capacity. This is completely different from buying in and selling on a load of L'Oreal product.

[Kraken1]

And that, ladies and gents (and anyone watching from the cheap seats), was Perpy being owned by hightail. That's about a million-four (perp gets some stuff right) in favour of sensible advice.

 

Ding ding! Round two!

[WelshMam2009]

Hi everybody, all your information is invaluable - I still have no tickets and no response from the seller - plus when I tried calling ebay yesterday they now request you have a pin ID to get through to them so gave up after holding for absolute ages because I had to pick up children. Anyway I have much more confidence to proceed with the Police and start the proceedings from there. It was interesting to hear a law enforcement option on the ebay number though so will be passing that on to the Police too.Once again thanks for the info - will update the post and let you know how I get on.Thanks.

 

Ok, this doesn't answer your question, but I am posting it to raise awareness about SOME sellers on eBay (of which I am one I hasten to add!!).

 

http://www.telegraph.co.uk/news/uknews/1500189/Teenager-faces-jail-for-eBay-ticket-[problem].html

 

http://www.southwalesargus.co.uk/news/4967055.__95_000_eBay_fraudster_must_pay_back_only___1/?ref=mr

 

I'm sure many of you will already have read about this guy but it does demonstrate that criminal action can and is undertaken for eBay fraud.

[perplexity]

From the same document. If I sell a bicycle because my child has outgrown it I am not acting in my commercial or professional capacity. This is completely different from buying in and selling on a load of L'Oreal product.

 

 

So how exactly then, would you prove an exception but with not so much as an address to show who are and what your business would be?

 

Otherwise, I would rather not be taken for so much of a fool.

 

Sellers pay a fee to sell on eBay because it provides a commercial capacity that is not available elsewhere, to get the best price, whatever they sell, and when they join they therefore undertake to abide by the same rules as the rest, whoever they are. Not so completely different at all, the Agreement is the same for all and so is the law called the common law because we have it in common.

 

Buyers whinge in the same way when they buy goods from abroad as a "gift" and then they found that there is a duty to pay for the import, because the "non-commercial" exemption requires that a consignment is "sent by the sender to the consignee without payment of any kind."

 

If you fancy a chance to find a definition of "commercial", to a different effect in any part of the legislation I warn you not to waste the time, and if you happen to hear of a prosecution of an ebay seller that failed because a judge refused to apply the Distance Selling Regulations, or any other part of the consumer protection legislation because of a seller's pretension to be "private", do let us know.

 

I shall not be holding my breath in the mean time.

[Kraken1]

Originally Posted by hightail

From the same document. If I sell a bicycle because my child has outgrown it I am not acting in my commercial or professional capacity. This is completely different from buying in and selling on a load of L'Oreal product.

 

 

So how exactly then, would you prove an exception but with not so much as an address to show who are and what your business would be?

 

So let me get this straight, because this is quite odd even for you Perpy - you are asking how a seller would claim an exemption if he didn't know what his address is and who he is? Do you have a problem forgetting where you live? I'm fairly certain I know where I live, by the way.

 

That is quite brilliant.

 

As an aside, you don't need to establish that an exemption applies until it has been shown that the regs apply. You've missed a bit of your pleadings. I'd guess that is because you are basing your advice on google, and not actually having studied or done any of this stuff.

[Kraken1]

and so is the law called the common law because we have it in common.

 

And not be pedantic (well, just a bit) it is actually 'common' because it applies to all, not because we have it in common. It is an important distinction to make as 'having it in common' implies it is the same universally, when in fact it is commonly applied to all and arose because it was created out of disparate systems and applied to all. I dare say you'll want to argue that this is wrong next, probably because of some misinterpretation of some bit of irrelevant statute. How about the Interpretation Act? We've not had that for a while...

[perplexity]

The problem was not that it might not have been possible to prove that the contract was a distance contract.

 

The problem was that

 

..... the paypal transaction does not show the sellers address and you can not get the members information unless you have an ongoing transaction with the seller otherwise I would call them. Obviously I will be contacting ebay and paypal but know from experience that I will get no help what so ever, my real question is can I take this any further as I will try and follow it up, may be an expensive learning curve but any help would be appreciated!

 

The statute that I therefore pointed out was

 

Section 6(4)© of the The Consumer Protection From Unfair Trading Regulations 2008 (not the Distance Selling Regulations), in order convince the police or anybody else of the fact that it is a strict liability criminal offence for the trader to be selling but with nothing to tell you where to send a summons if need be.

 

For good measure,The Electronic Commerce (EC Directive) Regulations 2002 also require that any natural or legal person providing an information society service "shall make available" a name, geographical address and electronic mail address.

[terriersaregreat]

Oh dear! To try and get back to basics.............

 

Just a thought have you tried looking at the Paypal transaction? The Sellers name and email address should appear in your account details. Hopefully this is a traceable detail for future complaint to whoever.

 

I've been selling for many years being totally honest can't see how people can do this to Buyers. My telephone number is available to the Buyer and of course i send everything by recorded delivery with return address on parcel. But the I send the goods!

 

Surely when you sell with eBay you agree to their terms of selling if many Sellers thought all the law quoted by Perplexity was invoked they would run a mile!

 

Can't resist a little suggestion re selling outgrown bike. If everyone who sold an unwanted item was deemed to be selling as a business the tax man would have a

field day! Just thinking free ad papers, car boots etc. But I suppose there is then the argument "sold as seen".

[Kraken1]

Nice. And your advice actually is? What does the op need to do?

[raydetinu]

gone of topic again, subjective interpretations dont help op!