Is a seller on Ebay legally obliged to sell ?

toffe

Equaliser123 wrote: »

OK, chapter and verse.

The "fall of the hammer"is when the contract is concluded (Dennant -v- Skinner [1948] 2KB 164).

If the winning bidder does not pay, either the seller or auctioneer may take action to recover payment (Chelmsford Auctions Ltd -v- Poole [1973] 1 QB 542).

Terms and conditions set out in a sale catalogue (or in this case Ebay) are effective. Exemption clauses would, however, be subject to the Unfair Contract Terms Act 1977 (Southwestern General Property Co.Ltd. -v- Marton [1982] 263 EG 1090.

So, the buyer in this case HAS entered a contract. The seller CAN enforce it.

Alot of case law quoted, however.......

.....Note the lack of any case law relating to directly to ebay, there has been no clarification in the law regarding whether or not online auctions are the same, in legal terms, as traditional auctions.

In a traditional aution house the contract is binding because the buyer has time and opertunity to inspect the goods prior, so once he buys he can't cancel, equally therefore the seller can not cancel, an equal and fair contract is formed.

However, although distance selling regulations do not apply to online auctions and so the buyer on paper has no automatic right to cancel there are other grounds on which he may cancel based on never having seen the goods, the buyer could argue that they are not what was advertised.

Therefore with the law appearing to allow cancellation on the buyers part, and with ebay and paypal both allowing the buyer to return regardless of the law, it would be an unfair term under the unfair terms in consumer contracts act to bind the seller to a contract to which the buyer is not bound at all.

So in short, the ebay contract is not binding because, as per usual, ebay have included unfair contractual terms within their agreement. Binding the seller to the sale while offering both via ebay and their sister company paypal, the buyer oportunity and rights to cancel is unfair.

a "mutual" contract can not be binding one way under the provisions of the unfair contract terms act and the unfair terms in consumer contracts act.

OlliesDad

toffe wrote: »

However, although distance selling regulations do not apply to online auctions and so the buyer on paper has no automatic right to cancel there are other grounds on which he may cancel based on never having seen the goods, the buyer could argue that they are not what was advertised.

They would ony be able to use this reasoning, if it were genuinely true. That is why a seller must be as clear and honest as possible.

Therefore with the law appearing to allow cancellation on the buyers part, and with ebay and paypal both allowing the buyer to return regardless of the law, it would be an unfair term under the unfair terms in consumer contracts act to bind the seller to a contract to which the buyer is not bound at all.

Neither Ebay or PayPal allow returns unless it is not as described i.e the law (unless the seller specifically advises they will accept returns).

So in short, the ebay contract is not binding because, as per usual, ebay have included unfair contractual terms within their agreement. Binding the seller to the sale while offering both via ebay and their sister company paypal, the buyer oportunity and rights to cancel is unfair.

a "mutual" contract can not be binding one way under the provisions of the unfair contract terms act and the unfair terms in consumer contracts act.

As above, the terms you have highlighted do not exist. In fact, the seller is free to stipulate their own terms in reference to returns and refunds.

Equaliser123

I agree that the if, for example, the goods were not as advertised or did not otherwise conform to contract, the buyer may be able to terminate the contract. However, that will be because of a 'repudiatory breach' rather than a pure right to cancel.

None of the cases relate to Ebay indeed. However, I can see no distinction to my legal mind which would lead a Court to reach a different conclusion.

Unless a contract is void, voidable or a statutory or contractual right to terminate exists, certainty of contract demands that there is a clear conclusion of the contract.

The point made that because delivery has not been made, no contract can be in existence is wrong.

woody01

It is up to the OP (who hasn't been seen since) to decide who to follow. My education and experience is, perhaps, a little better suited to speaking about contract law than yours.

Really.
On a complete fool would suggest they are more qualified or able to judge a position when they know nothing of the other party involved.
Surely you 'education and experience' would tell you this. :shhh:

toffe wrote: »

Alot of case law quoted, however.......

.....Note the lack of any case law relating to directly to ebay, there has been no clarification in the law regarding whether or not online auctions are the same, in legal terms, as traditional auctions.

In a traditional aution house the contract is binding because the buyer has time and opertunity to inspect the goods prior, so once he buys he can't cancel, equally therefore the seller can not cancel, an equal and fair contract is formed.

However, although distance selling regulations do not apply to online auctions and so the buyer on paper has no automatic right to cancel there are other grounds on which he may cancel based on never having seen the goods, the buyer could argue that they are not what was advertised.

Therefore with the law appearing to allow cancellation on the buyers part, and with ebay and paypal both allowing the buyer to return regardless of the law, it would be an unfair term under the unfair terms in consumer contracts act to bind the seller to a contract to which the buyer is not bound at all.

So in short, the ebay contract is not binding because, as per usual, ebay have included unfair contractual terms within their agreement. Binding the seller to the sale while offering both via ebay and their sister company paypal, the buyer oportunity and rights to cancel is unfair.

a "mutual" contract can not be binding one way under the provisions of the unfair contract terms act and the unfair terms in consumer contracts act.

Exactly!
As you say, Ebay make their own terms and conditions which have no bearing on the actuality.
Therefore, they have no credence.
This is unfortunately far too complicated for Equaliser to understand.

Equaliser123

woody01 wrote: »

I doubt it.

I don't.:)

easyhost

esuhl wrote: »

It's actually pretty straightforward to sue someone in the County Court. The Courts Service have set up the Money Claim Online website where you can begin a claim online.

this will cost £25 to issue a judgement and a further £35 to issue a warrant if a judgement is not responded too.

but i can say this service works a treat. i run a hosting business a client failed to pay his invoices, normally after 3 reminders and a LBA i would terminate his account and let it go, but this client became abusive and told me to take him to court i wont get a penny, so i used Money Claim Online and guess what i won in the end his 3 months invoices (£30) ended up costing him £276.

woody01

Equaliser123 wrote: »

I don't.:)

As i said....only an idiot believes their own hype.

As long as a refund is provided, and the buyer isn't out of pocket, no law in the history of man, would let you sue the seller successfully. There is no consequential loss.

And whether you like it or not, this statement is the crux of the situation.

I also notice that you have declined to answer my response regarding the Dell pricing as an example.
Please show us some of this gleaming intelligence and give me some answers to it. You may actually gain some credibility back then.

Just to help you:
Dell is a classic example.
They make MANY mistakes in pricing on their website and NEVER fulfil the deal if purchased at the lower price.
Are they breaking the law? No
Are they looking to be sued? No
Have they lawyers that know an infinite amount more than you? Yes

Equaliser123

woody01 wrote: »

As i said....only an idiot believes their own hype.

And whether you like it or not, this statement is the crux of the situation.

I also notice that you have declined to answer my response regarding the Dell pricing as an example.
Please show us some of this gleaming intelligence and give me some answers to it. You may actually gain some credibility back then.

Just to help you:
Dell is a classic example.
They make MANY mistakes in pricing on their website and NEVER fulfil the deal if purchased at the lower price.
Are they breaking the law? No
Are they looking to be sued? No
Have they lawyers that know an infinite amount more than you? Yes

OK, a couple of facts. Firstly, try and calm yourself down a bit. Calling people "idiots" does you no credit.

I am a solicitor of 14 years qualification specialising in commercial law so feel pretty able to comment.

As for Dell - interesting that you mention their lawyers who know "an infinite amount more than you" as, 2 years ago, I won a litigation against them.

The bit that you don't seem to be able to comprehend - and rather than ask, you have to resort to getting all het up - is that in the Dell situation, their terms will state that a contract is formed at the point payment is taken and the goods are despatched.

That is not the same as in an auction where, as outlined in the cases, a contract is formed at the point of the hammer (or virtual hammer) falling.

Hope this helps. Even if it doesn't, do try and be polite and calm yourself down a bit.

Tozer

38 posts and only one from OP....

However, the position is as set out by Equaliser and OlliesDad.

toffe

OlliesDad wrote: »

They would ony be able to use this reasoning, if it were genuinely true. That is why a seller must be as clear and honest as possible.



Neither Ebay or PayPal allow returns unless it is not as described i.e the law (unless the seller specifically advises they will accept returns).



As above, the terms you have highlighted do not exist. In fact, the seller is free to stipulate their own terms in reference to returns and refunds.

All of the above is flawed, because as i said, ebay and paypal do allow buyer to return goods. even where the goods are sold by "auction" and distance selling regs do not entitle the buyer to return.

Yes it's true ebay do let you you state "returns not excepted" the problem is they will then over rule that term should a buyer complain and force you to refund as will their sister company paypal and there is a term within the ebay and paypal contract which allows this.

Thus the contract by whicy you are supposedly bound s a seller is flawed and, in my view, not compliant with the unfair contract terms acts.