Suing for loss of bargain?

Crowqueen

It's possible to sue for loss of bargain, one of the regulars over on the community boards says that it is theoretically possible the way contract law works (i.e. that the winning bid is the contract, not any payment for the item), but on the other hand, some items are not worth it.

Non-performing sellers are fools because they can get reported specfically for it; they are making eBay into a complete farce; and loss of bargain is a legitimate cause to take a seller to court over - since a winning eBay bid is effectively a binding contract - but I agree with Blossom, it may only be worth it if there is a significant difference between what the seller wants for it and what the contract says, and you have an open-and-shut case.

chancesare_2

cyberbob wrote: »

Interesting that you remember that 18 month old thread. Been lurking long then.;)
https://forums.moneysavingexpert.com/discussion/1729225

I wish! No, that thread is LEGENDARY in all sorts of other places, I was directed to it only a few months ago, hence why & how I found this forum.

pinkshoes

In theory he *could* sue for loss of bargain, but as £50 would be what the item was "worth", given that's what the auction finished at, then he'd have to prove that it was impossible to pick up any other identical items for that price. I'm quite sure it would be thrown out of court...

Your friend needs to pay for the item, then open an "item not received" dispute when it doesn't arrive, then leave bad feedback for seller.

Crowqueen

I should point out at this stage that it is also theoretically possible to sue NPBs for breach of contract, though of course there are far easier and quicker ways to deal with them through eBay's own software.

cyberbob

Crowqueen wrote: »

I should point out at this stage that it is also theoretically possible to sue NPBs for breach of contract, though of course there are far easier and quicker ways to deal with them through eBay's own software.

It's theoretically possible to sue anyone for anything. Doesn't mean you will win or you wont lose money though.

laurenjs88

Sorry about your friend losing out OP, Ive just read the other thread linked to this... what utter madness!

Crowqueen

cyberbob wrote: »

It's theoretically possible to sue anyone for anything. Doesn't mean you will win or you wont lose money though.

Hence the additional statement.

There was a pest on the official forums this summer swearing it was possible and she was going to do it to all NPBs from now on. Since she was apparently a law student, I suspect she ought to have known better. In theory she has a case. In practice, you are right, she would have to have been monumentally screwed over by eBay's dispute process to even have the slightest leg to stand on to sue for breach of contract.

What is often the problem is that legal action is usually the last resort, rather than the first thing to do. The number of times people here rant on about suing eBay or Paypal, or the buyer, or all three, when they have not taken the slightest measure to properly protect themselves and have lost or negated their protection by their own actions, is ridiculous.

I don't agree with what the government is doing to legal aid, but I can sometimes see where they are coming from on trying to prevent frivolous law-suits.

RHemmings

Crowqueen wrote: »

It's possible to sue for loss of bargain, one of the regulars over on the community boards says that it is theoretically possible the way contract law works (i.e. that the winning bid is the contract, not any payment for the item), but on the other hand, some items are not worth it.

Non-performing sellers are fools because they can get reported specfically for it; they are making eBay into a complete farce; and loss of bargain is a legitimate cause to take a seller to court over - since a winning eBay bid is effectively a binding contract - but I agree with Blossom, it may only be worth it if there is a significant difference between what the seller wants for it and what the contract says, and you have an open-and-shut case.

Loss of bargain comes up on these types of forums very frequently. However, in years I have never seen a case where someone has actually sued for loss of bargain. As mentioned above, people decide, invariably it seems, that it's not worth it.

While I'm no lawyer, and this is not legal advice, I believe that the following apply.

(i) The Court must decide that winning an auction on ebay actually creates a binding contract between the parties.

(ii) The buyer must have actually suffered a loss. I've seen legal opinion that the buyer must purchase a replacement item. Otherwise it can be assumed that the buyer didn't really want/need the item, and hence has suffered no loss. The buyer must also try to buy the replacement item at the lowest possible price, in order to mitigate their loss, as required by law.

However, until some ebay buyer actually gets off their £$&^ and sues someone for loss of bargain, we don't know whether an ebay auction creates a binding contract or not (what ebay says doesn't matter, they don't make the law). And even if that was established, it's still difficult for the buyer to prove their loss, and prove that they have mitigated their losses. Only if both of these points are covered, and probably more, will we actually see someone successfully sue for loss of bargain on ebay.

The closest there is to a precedent is this Australian ruling, where the buyer won the case:http://www.theage.com.au/news/web/ebay-sales-stick-court-rules/2007/08/03/1185648121130.html Note that foreign precendents are of course not binding in UK courts, but precedents from countries with similar legal systems to the UK are allowed as contributory (or some other partial, I may have the wording wrong) evidence in UK courts.

Hammyman

Uncertain wrote: »

Has anybody won (or lost) such a case if an eBay seller refuses to sell an item won in an auction?

It has been suggested to my friend that he could sue in the small claims court for loss of bargain - is this true?

Thanks

Yes it is true and yes it has been done. A famous case doing the rounds on IT news sites a few years ago involved a Jetski worth £1000's which sold for very little. Seller reneged on the deal, buyer successfully sued through County Court.

taxiphil

RHemmings wrote: »

Loss of bargain comes up on these types of forums very frequently. However, in years I have never seen a case where someone has actually sued for loss of bargain.

It's not an Ebay case, but myself and others sued B&Q for loss of bargain for the Zanussi dishwasher (a long thread I'm afraid but the upshot was that B&Q conceded defeat and paid up after court claims were issued):

https://forums.moneysavingexpert.com/discussion/1439621

RHemmings wrote: »

The buyer must have actually suffered a loss. I've seen legal opinion that the buyer must purchase a replacement item. Otherwise it can be assumed that the buyer didn't really want/need the item, and hence has suffered no loss.

This isn't correct at all. The remedy is to award the claimant the sum required to enable them to put themselves in the position they would have been in if the contract had been performed. There's no requirement for the claimant to have already put themselves in that position before the claim is made, as this would place an unreasonable financial burden on the claimant, bearing in mind that sourcing the product elsewhere could cost vastly more than the original contract price.

The measurement of damages is in s51(3) Sale of Goods Act 1979 (prima facie to be ascertained by the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered)