Ebay:No transparency on whether a seller is private or commercial

[Guest 10110001]

If you buy goods on eBay and the seller is a business you are covered by among other things the Consumer Protection (Distance Selling) Regulations 2000 if the transaction fails.

 

There is little transparency in defining whether a seller is a private individual who buys industrial surpluses online (from an ebay owned wholesaler in the far east) and resells them on ebay.co.uk (using a work-from-home seller) constitutes a commercial selling.

 

If we buy fron such a seller and we do not receive the goods or the goods are defectoive or not as described, what protection does the consumer have?

 

1. Is the seller liable?

 

2. Does liability reside with eBay as its their site the transaction occurred?

 

3. Is paypal Liable? (I know about Section 75 – but this transaction is under £100)

 

4. Neither? Then how is either of the above able to exclude themselves from liability - and the consumer sustaining a financial loss?

 

Comments?

[rosiecotton]

I tend to say that if people are selling goods on eBay that are reasonably not their own personal goods (if they are regularly and constantly selling the same type of goods) then I would suggest that a court would decide they are acting in the course of a business.

 

Therefore the seller would be liable.

 

I'm not aware of any English cases that have come to court over this, but it has been tested in the German courts and business sellers have been forced to offer cancellation rights under the DSRs, at least, as the sales are not seen as traditional auctions.

 

eBay themselves would not be liable as they act simply as a marketplace. Section 75 would not apply to Paypal.

[Guest 10110001]

for a transaction (say) over £100 and paid by credit card and through paypal, does paypal prevent you reclaiming it from your credit card company under Section 75?

 

For this transaction being £50.97 whats the reclaim procedure?

 

I have no address for the retailer as this is via aBay paid using a credit card and paypal.

[rosiecotton]

You effectively have not paid the seller directly using a credit card so it is doubtful that Section 75 would apply. I will look for some examples - eBay is a notoriously grey area and it certainly gives me the shivers when I have to deal with anything relating to them!

[rosiecotton]

OK it appears I am wrong on this (told you I hated ebay ones!) as I have just read through a Powerpoint presentation drawn up by Paypal's legal director, which seems to state that any sales over £100 made using a credit card can be pursued either through S75 or the Paypal buyer protection scheme.

 

For your dispute, S75 won't apply anyway so you can use the Paypal buyer protection scheme for the dispute, if the seller qualifies.

 

Still having a good look through stuff!

[rosiecotton]

On the other point, how to identify a business, this is from LACORS/Norfolk Trading Standards guidance notes for businesses selling on eBay:

 

Are you a Business?

When people start to use internet auction sites, they often do so as a consumer buyer, or to sell off their own unwanted items, before setting up in business. It is not always clear whether a seller is acting as a business or as a private individual. Consumer law does not provide a strict definition of ‘business’.

If you acquire or make goods with a view to selling them on internet auction sites, then you are likely to be considered as a business. There are many small or ‘micro’ businesses operating on auction sites. You may be a business even if your activities provide only a small income, if they are not your main occupation or if they are done from home.

If you sell an item privately from your business account, you should make this clear in the item listing. Alternatively, you could open separate accounts for private and business sales.

[rosiecotton]

From LACORS and the OFT relating to identifying a business, and - more interestingly - the stances on whether auction sales are exempt from the Distance Selling Regulations:

 

Guidance to advisers: consider whether the seller is a business in the light of any relevant case law. Consider volume of sales, type of items, presentation of item listing, new or second-hand, trading name, links to seller's business websites.

Compliance with Distance Selling Regulations (DSR)

eBay's view is that items sold via eBay will (subject to all other the other conditions in the Regs being met) be covered by DSR. This includes auction-style sales and auction with buy-it-now sales.

The OFT take the opposite view, that is that auction-style sales are exempt from DSR. They have taken no position on auction with buy-it-now sales.

[My note - I am not aware of the above being tested in the UK courts, just the German ones, where the DSRs were found to apply to all business sales to consumers]

[rbrears]

I had just that issue a couple of years ago. Bought a PC on ebay from a company using buy it now - it was one of those auctions where the only option was buy it now at the price set by the seller. The PC was a piece of trash. I argued that the DSR applied. The seller told me to get on my bike. I took it to Trading Standards and the OFT - they were absolutely useless. After about 4 months of trying to persuade them that the DSR applied as the sale was clealy not an "auction" I just gave up and moved on.

[Movingon]

I had just that issue a couple of years ago. Bought a PC on ebay from a company using buy it now - it was one of those auctions where the only option was buy it now at the price set by the seller. The PC was a piece of trash. I argued that the DSR applied. The seller told me to get on my bike. I took it to Trading Standards and the OFT - they were absolutely useless. After about 4 months of trying to persuade them that the DSR applied as the sale was clealy not an "auction" I just gave up and moved on.

 

Whereas you could have spent your £30 and taken the dispute to court for arbitration?

[rosiecotton]

TS and the OFT cannot enforce civil law in individual civil disputes. Tom is right, you would have needed to take it to court.