Ebay seller possible contract breach

[Brock@BDK]

In response to eBay 'expectations' and to reduce low eBay ratings for postal costs we started giving the option of sending items through the post not recorded signed-for.

We have been bitten in the past with customers claiming not to have received items so we do not prefer to send items this way, but in our description of items on eBay we have been stating that we do not accept liability for items lost or damaged in the post if they are not sent recorded signed-for.

Recently we had a customer in Armenia who ordered a small part and selected the 'not signed-for' postal option. He then almost immediately asked for a tracking number.

We responded letting him know that his item was not tracked and reminding him of the terms in our listing. Some time later he opened a case saying that he had not received the item, and eBay refunded him stating that if an item was not tracked and marked as received then they would always find in favour of the customer.

The customer only had a feedback of 4, and we had a feedback of 470+, with no reported item not received cases in the past.

Sadly on that occasion we had not gotten a proof of postage from the post office, but have done since.

If the situation should arise in the future we are considering taking eBay to court should they suck the money back again when we have proof of postage - are they not breaching the contract made between us and the customer if our listing states that we do not take responsibility for loss or damage in the post?

Has anybody else tried?

Brock
Office Manager
BDK Race Engineering Ltd

 

[Steve_g]

Doesn't sound like you have a clue...

You can put what you want in your T+C but it won't hold up.

eBay and PayPal will ask you for proof of delivery, if you don't provide this then the customer is getting a refund.

I strongly recommend you research the Distant Selling Regulation (the regulations that you SHOULD be sticking to)

I really despise eBay sellers using the old "we obtain proof of postage so if it gets lost its not our problem"

Steve

"If the situation should arise in the future we are considering taking eBay to court should they suck the money back again when we have proof of postage - are they not breaching the contract made between us and the customer if our listing states that we do not take responsibility for loss or damage in the post?"

Good luck with that.

 

[deniser]

Surely having proof of postage isn't going to help you if Ebay rules require you to be able to track the item and provide proof of delivery?

If you are a business seller then the onus is always going to be on you to prove that the item was delivered, under the distance selling regulations, sales of goods legislation etc.

There are two ways to approach this.

1. Either send everything by a tracked method or
2. Send them untracked but factor in the percentage of "lost" parcels which you have to refund or resend into your price calculations. This should be counterbalanced also by higher sales because postage is lower.

Suing Ebay isn't going to get you anywhere.

 

[OldWelshGuy]

Ebay require POD, if you don't provide it, you haven't a leg to stand on as far as they are concerned

 

[Brock@BDK]

Well that sounds quite conclusive and thanks for your time.

In response to Steve - we are not clear, that's why we're asking here first. It may surprise you but as a small company of 4 we don't have time to digest the whole of the distance selling regs which are fairly substantial, but we will look into that when we have time.

It seems though that all this leaves sellers exposed to fraud on the part of the customer. Surely we will be factoring-in a percentage for 'lost items', at the expense of competitive pricing, it's just a shame that it will only be the honest customers that will be penalised. We despise people who order items and then claim not to have received them and recently we have had quite a few (all but one which we have proven delivery of items on), but they don't seem to get any comeback.

Thanks very much for your replies, I do appreciate it.

 

[Steve_g]

No excuse really, you should know the DSR's before selling - this way you won't be putting outlandish comments on eBay that contradict eBay T+C, PayPal T+C, Distant selling regs and consumer rights.

When i first started trading online i was one person with a full time job, one part time and on a part time college course.

Sorry if i come across rude but practices like this is what discourages fair trade on eBay and other market places and makes it harder for the people who do stick to the rules.

Steve

 

[SillyJokes]

Just to say that there is a list of countries I would not ship to and Armenia is definately in there. Some places loose your parcel more often than others.

 

[Brock@BDK]

"No excuse really, you should know the DSR's before selling - this way you won’t be putting outlandish comments on eBay that contradict eBay T+C, PayPal T+C, Distant selling regs and consumer rights."

It sounds like you're on a rant Steve and yes you do sound rude. I daresay you drive your vehicle on the road in blissful ignorance of the details of a third of the laws you must obey (as the majority of us do), and similarly ignorance is no excuse.

Not only that but a fairly intent look at the DSR's does not reveal that I have contradicted them in any way and simply that I have in good time prior to the conclusion of contract stated the arrangements for payment, delivery and performance. No doubt the failing is in fact in proving that the contract was complete (Law of Contract).

I fail to see how I breached his consumer rights either, it's not as though he was not provided with a choice at the point he agreed to contract, neither were we in any way discouraging fair trade.

Anyway that's more than enough time spent on this, I will certainly be following in SillyJokes footsteps at least to some extent (if Armenia wants something it will be recorded and insured only) which will certainly discourage fair trade.

 

[Steve_g]

"No excuse really, you should know the DSR's before selling - this way you won’t be putting outlandish comments on eBay that contradict eBay T+C, PayPal T+C, Distant selling regs and consumer rights."

It sounds like you're on a rant Steve and yes you do sound rude. I daresay you drive your vehicle on the road in blissful ignorance of the details of a third of the laws you must obey (as the majority of us do), and similarly ignorance is no excuse.

Not only that but a fairly intent look at the DSR's does not reveal that I have contradicted them in any way and simply that I have in good time prior to the conclusion of contract stated the arrangements for payment, delivery and performance. No doubt the failing is in fact in proving that the contract was complete (Law of Contract).

I fail to see how I breached his consumer rights either, it's not as though he was not provided with a choice at the point he agreed to contract, neither were we in any way discouraging fair trade.

Anyway that's more than enough time spent on this, I will certainly be following in SillyJokes footsteps at least to some extent (if Armenia wants something it will be recorded and insured only) which will certainly discourage fair trade.

Your advising customers that safe delivery of the item is not your responsibility, your mis-informing the customer – the DSR’s clearly state that your responsible for safe delivery to the customer and it’s the consumers right to have products or services paid for.
The DSR’s aren’t a bit of light reading, they are essential to e-commerce and online businesses and you can get in to a lot of trouble with Trading Standards for not sticking to them.
Regards to fair trade - Your competitors may stick to the DSR’s, increase prices to factor lost / damaged items and loose business because your cheaper because you don’t factor these costs.

 

[internetspaceships]

You seriously sent an item to the US on a non signed for package?

Seriously? I'd have paid the extra and been done with it. sometimes you've got to bite the bullet and prevent these problems coming up BEFORE they happen. Even if it results in a lower margin.

 

[Cathy]

Wow, I must have been asleep, when Armenia joined the EU.

First off, the Distance Selling Regulations are an EU thing (aka 'a fabrication to make 'poor consumers' find it easier to scam honest businesses').

As Armenia is not in the EU then I doubt you have too much to worry about the Distance Selling Regulations in this particular case.

What you will find somewhat harder to escape is Ebay Rules. These will require that you get proof of delivery to your scammy customer or else you will pay.

So, sad as it may be, don't give the option. Charge enough to cover signed for delivery and then next time they try it you can simply scan the proof of delivery aka tracking number into the claim and you will be protected - assuming you use Paypal that is.

PS: Barely worth saying but I assume you have blocked that particular customer from buying from you again!

 

[Steve_g]

Wow, I must have been asleep, when Armenia joined the EU.

OP used that as one instance but used / uses these terms for all sales.

Even with that example being outside the EU its still wont stand up to eBey / PayPal and is terrible business practice.

 

[deniser]

Wow, I must have been asleep, when Armenia joined the EU.

The OP's question wasn't specific to Armenia as far as I can see. He was just giving an example of one parcel which had gone astray which happened to have been sent to Armenia.

I read the question as being a general one relating to parcels going astray.

Unless the OP has quite an unusual business specific to Armenia, I would have thought that the vast majority of his parcels would go to EU countries - mine do.

I'm glad I'm not the only one who read it as America though

 

[kulture]

The OP really should read up on the Distance Selling Regulations and the Sales of Goods Act. There really is no excuse not to be fully aware of the laws dealing with their business.

As for always posting signed for, it is not always possible to do this. It would make the cost uncompetitive. However I think it is foolish to say this on the terms of your listings as not only is it illegal it also can act as a magnet for scam artists who want to steal from you.

The simple fact is that if you choose to not use a delivery service where you get proof of delivery, then you have to refund whenever someone claims they did not get the goods. It is a cost of doing online business.

 

[SillyJokes]

Not shipping to certain countries as nothing to do with 'fair trade' and everything to do with the quantity of orders you can afford to send for which you will not be paid. My list originated from WorldPay who ought to have the figures on failed payments.

New businesses often complain on here that they got a lovely big order from somewhere far away but for some reason the buyer never got it. It's a classic newbie mistake.

It is the seller's responsibility to get the item into the hands of the buyer. It doesn't matter how you do it, the buyer doesn't care. You absolutely cannot wash your hands of it it once it leaves your warehouse.

Your main problem is that you are working on eBay which has a reputation for loosing a far higher proportion of parcels than other platforms.

This is why I don't sell on eBay.

 

[Cathy]

The OP's question wasn't specific to Armenia as far as I can see. He was just giving an example of one parcel which had gone astray which happened to have been sent to Armenia.

It just seemed odd to me to tell the OP that he must follow the DSR but not point out that they wouldn't have applied to the specific case he quoted in any case. (I don't mean just your post but others who mentioned the DSR's).

I agree that the parcel should be the responsibility of the sender until it arrives with the customer and listings like his would certainly put me off buying from him but it's more Ebay's rulese that will 'get' him not the DSR's.

 

[Cylon]

Cathy I think everyone was referring to this point from the OP:

We have been bitten in the past with customers claiming not to have received items so we do not prefer to send items this way, but in our description of items on eBay we have been stating that we do not accept liability for items lost or damaged in the post if they are not sent recorded signed-for.

Whether its DSR's or CPR regs the fact is no statement of this kind is valid in any contract it is not only legally wrong but also morally objectionable as whats to say the goods have even been posted out in the first place if a non recorded method of delivery was requested.

The OP by either ignorance of the law or lack of educatation in the law is presenting potential customers with a lie. Course sending goods to Armenia will have there own potential pitfalls as well.

 

[titanicuk]

Would advise remove this term now before someone report you or eBay pick up on you.
Customer pay for a product not a piece of paper saying you have posted it.