Suing for loss of bargain?

Uncertain

Many thanks indeed to the last four posters (and one or two others) who have provided very useful information.

It is so nice to see the forum work like this (as it should).

To the others, I hope you have enjoyed your opinionated rants and start to feel better in the new year!

Crowqueen

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.

I'm not going by what eBay say but by how contract law is defined. Like a lot of areas of law, it is a grey area, but generally speaking, there are a number of places where eBay auction wins do form legally binding contracts.

A contract is formed when the buyer and seller agree to terms. As far as I can make out - and I am not a lawyer but I am a trained accountant, which got me interested in this sort of thing; contract law comes up at least in abstract terms on the level 2 AAT exam which I sat last December - that forming that contract is satisfied by the eBay process, particularly in the case of a non-performing seller where the buyer has paid for the item. If you are saying that the contract is formed at acceptance, then this is satisfied by a winning bid. If it is satisfied by payment, then all the buyer has to do is pay. Certain elements of the DSRs permit the cancellation of contract before the buyer pays for the goods, so it is implied there that the contract is considered to have been formed when the buyer actually wins the item or presses Buy-It-Now.

However, there are still adequate ways of sanctioning non-performing sellers via the eBay system. The courts are the option people have to enforce the contract, but there are many other remedies which are less time-consuming and expensive for the sort of sums of money that change hands on eBay, such as reporting a non-performing seller through eBay, leaving damaging feedback and filing an Item Not Received claim if the seller hangs on to the money.

We don't know the statistics on how many people have successfully sued for loss of bargain, and small court claims are not well-disseminated in the press, so saying you have yet to hear about someone successfully suing for loss of bargain does not mean it has not happened. As Taxiphil says, there have been successful challenges against non-eBay outlets so it's plausible that a claim could be brought against an eBay seller if it was worthwhile.

RHemmings

Crowqueen wrote: »

I'm not going by what eBay say but by how contract law is defined. Like a lot of areas of law, it is a grey area, but generally speaking, there are a number of places where eBay auction wins do form legally binding contracts.

A contract is formed when the buyer and seller agree to terms. As far as I can make out - and I am not a lawyer but I am a trained accountant, which got me interested in this sort of thing; contract law comes up at least in abstract terms on the level 2 AAT exam which I sat last December - that forming that contract is satisfied by the eBay process, particularly in the case of a non-performing seller where the buyer has paid for the item. If you are saying that the contract is formed at acceptance, then this is satisfied by a winning bid. If it is satisfied by payment, then all the buyer has to do is pay. Certain elements of the DSRs permit the cancellation of contract before the buyer pays for the goods, so it is implied there that the contract is considered to have been formed when the buyer actually wins the item or presses Buy-It-Now.

What you write sounds logical, and plausible. But, the way that our law works is by precendent. So, until someone actually sues for loss of bargain, as the buyer in Australia did, and there is a precedent created, then all we have are opinions as to when a contract is formed. Personally I believe that a contract is formed in an ebay auction as soon as payment is made. But, I'm just some random internet guy, and my opinion counts for nothing. Only if I can convince a judge to agree with my opinion, and to make a judgement following it, does my opinion count for anything.

You say that
"A contract is formed when the buyer and seller agree to terms." But, in standard internet commerce, companies' terms and conditions can delay the formation of a contract until dispatch of the goods, even if terms have been agreed and payment made. So, contract formation can sometimes operate outside a simple definition. Personally I believe that the lack of any terms and conditions stating that (e.g.) BIN or auction purchases do not form a contract should mean that a contract is formed. But, that's just my opinion, it's not law until a judge makes it so.

This is the problem with discussions such as these. Until a legal precedent is set, people can state opinions, and their reasons for holding those opinions. But as there's no precendent, no-one can prove themselves right or someone else wrong. As when there finally is a judgement, there's no guarantee that the judge will decide in a logical fashion, following the wording of the law and its expected, logical, consequences.

Crowqueen wrote: »

We don't know the statistics on how many people have successfully sued for loss of bargain, and small court claims are not well-disseminated in the press, so saying you have yet to hear about someone successfully suing for loss of bargain does not mean it has not happened. As Taxiphil says, there have been successful challenges against non-eBay outlets so it's plausible that a claim could be brought against an eBay seller if it was worthwhile.

Given the significant amount of interest on a wide range of forums in "loss of bargain" and ebay, I'd think there would be a good chance that had there been successful or unsuccessful legal cases concerning ebay and loss of bargain, that they would have been spread around. Many ebay buyers, particularly those ornery enough to take a loss of bargain case to its conclusion, are internet savvy and likely to discuss these cases online. But still there is no evidence of such a case. Clearly this doesn't formally prove anything, but I think it unlikely that there has been such a case, and very unlikely that there have been many such cases.

Note that I agree with you that a case could be bought against an ebay seller or buyer for breaking a contract. But, while I find that plausible, it's far from legally proven that this can be done.

fiddiwebb

Uncertain wrote: »

Many thanks indeed to the last four posters (and one or two others) who have provided very useful information.

It is so nice to see the forum work like this (as it should).

To the others, I hope you have enjoyed your opinionated rants and start to feel better in the new year!

Opinionated rants?

Harsh words for posters who have a different view to yours, if you think it is possible to win a case for loss of a bargain and try and claim the amount that you think it is worth (£100?) by all means pursue it.

Would be interesting to know what the item is and if it is new or secondhand?

forgotmyname

Risky trying to claim compensation for a seller not completing the contract. They could easily say the item was
damaged etc.

The item was obviously not worth £100 because it didnt sell for £100. I sold an old non working ZX81 computer
for £30 when i thought i would be lucky to get the 99p starting bid. But its also gone the other way sold stuff i
thought was worth selling and got 99p for them.

Its only worth what people are willing to pay. Complain to ebay for non performing seller and leave negative
feedback would be my choice. But no matter how many ngatives some sellers get they always seem to
get people bidding on their stuff.

mobile48

forgotmyname wrote: »

Risky trying to claim compensation for a seller not completing the contract. They could easily say the item was
damaged etc.

The item was obviously not worth £100 because it didnt sell for £100.

There are many variables on ebay that mean items can sell for far less than they are worth. Listing in wrong section and poor title can result in poor outcome.

The seller would find it hard to claim an item was damaged if it was later re-listed or sold elsewhere. I would also want a statement from the seller for why they do not want to complete the sale as this would be very helpful in deciding what to do.

My own view is generally bids on Ebay being binding is tricky. One issue for example is can a contract be formed unless both parties know with confidence who they are?

Legal_Academic

One such claim is listed at the top of this page

http://e-sue.co.uk/recent_work.htm

RHemmings wrote: »

What you write sounds logical, and plausible. But, the way that our law works is by precendent. So, until someone actually sues for loss of bargain, as the buyer in Australia did, and there is a precedent created, then all we have are opinions as to when a contract is formed. Personally I believe that a contract is formed in an ebay auction as soon as payment is made. But, I'm just some random internet guy, and my opinion counts for nothing. Only if I can convince a judge to agree with my opinion, and to make a judgement following it, does my opinion count for anything.

You say that
"A contract is formed when the buyer and seller agree to terms." But, in standard internet commerce, companies' terms and conditions can delay the formation of a contract until dispatch of the goods, even if terms have been agreed and payment made. So, contract formation can sometimes operate outside a simple definition. Personally I believe that the lack of any terms and conditions stating that (e.g.) BIN or auction purchases do not form a contract should mean that a contract is formed. But, that's just my opinion, it's not law until a judge makes it so.

This is the problem with discussions such as these. Until a legal precedent is set, people can state opinions, and their reasons for holding those opinions. But as there's no precendent, no-one can prove themselves right or someone else wrong. As when there finally is a judgement, there's no guarantee that the judge will decide in a logical fashion, following the wording of the law and its expected, logical, consequences.



Given the significant amount of interest on a wide range of forums in "loss of bargain" and ebay, I'd think there would be a good chance that had there been successful or unsuccessful legal cases concerning ebay and loss of bargain, that they would have been spread around. Many ebay buyers, particularly those ornery enough to take a loss of bargain case to its conclusion, are internet savvy and likely to discuss these cases online. But still there is no evidence of such a case. Clearly this doesn't formally prove anything, but I think it unlikely that there has been such a case, and very unlikely that there have been many such cases.

Note that I agree with you that a case could be bought against an ebay seller or buyer for breaking a contract. But, while I find that plausible, it's far from legally proven that this can be done.

soolin

Regulars please be aware that this thread is a year old before you respond.

RHemmings

chancesare wrote: »

How is he out of pocket for £50. If he paid it will be refunded. There was a thread on here many moons ago about a pair of shoes and a ridiculous thread to sue. Your friend needs to get a life.

He's out of pocket for £50 if he wants the item, but now has to pay £100 for it.

If he's going to sue for loss of bargain, I believe that there are several things that need to apply. Note I say I believe because I'm not a lawyer and don't have a 100% perfect understanding of the law.

But, in my understanding, the following have to occur:

(a) The buyer has to buy the item elsewhere. Otherwise they haven't suffered a loss, let alone be able to quantify the loss.

(b) The buyer must take all reasonable steps to minimise their loss. E.g. they must try and buy the item as cheaply as possible so that their damages (the loss of bargain) are minimised. There's a special word for minimising your losses that I've temporarily forgotten.

(c) The buyer must then convince a judge that a binding contract had been formed during the purchase process. This is probably going to be the sticking point.

(d) There are other outs for loss of bargain. E.g. if an item is advertised at a price that is obviously an error, then this can be a get out for the seller. I don't personally believe that this applies in this case, given that it was an auction, and the item sold for half typical value, which is hardly unprecedented on ebay.

RHemmings

soolin wrote: »

Regulars please be aware that this thread is a year old before you respond.

Whoops! And I was even posting in this thread a year ago.

At least it shows us that years are passing, and we still don't really know what the true legal situation is concerning loss of bargain for an ebay sale.