eBay Seller sold me wrong item and now taking me to court

custardy

Strapped wrote: »

Nope, you're responsible for ensuring the seller gets it back. If the OP can't provide proof of delivery then he will lose, although he can then claim against Royal Mail for the loss (although he will lose as he did not use the correct delivery service and also maybe if it has been more than 1 month since he posted it as RM have shortened their claim timeframes)

Are you basing that on eBay or consumer law?
because DSR is a different ball game

Wywth

delirious wrote: »

Looking for some urgent advice please.

An ebay seller sold me some software on 22nd February 2012 which turned out to be wrong (he sent me an upgrade version as appose to a full retail version). The item cost £160 plus postage.

I contacted the seller and we agreed a refund/return on the 29th February 2012. The seller refunded me £170 on 29th February to include the cost of return postage. The parcel was returned the same day by First class post.

Following a series of emails where the seller informed me that the parcel hadn't arrived, and giving me links to the royal mail claim form, etc, the last contact I had from the seller was on 3rd April 2012 saying that he had not received the item still but sorry for wasting my time, got really snotty and said "Don't worry I won't bother you or waste your precious time any further!"

Fast forward to this morning and I get a letter through the post from small claims saying that he has filed a claim against me. I've not received any warning of this or any further contact since 3rd April and this court claim has appeared from nowhere. If the guy had contacted me, we could've come to some sort of agreement about us splitting the loss or something. However, now he is claiming for the full refund to be returned which is outrageous.

Where do I stand legally given the fact that I never received a letter of intention to take me to court or anything like that?

Any help would be greatly appreciated.
Thanks

As you have agreed in your other thread
https://forums.moneysavingexpert.com/discussion/4039871

that you accept that you should be responsible for the loss, I suggest you PAY UP!

Strapped

custardy wrote: »

Are you basing that on eBay or consumer law?
because DSR is a different ball game

I know that the seller can not insist on the goods being received back before making a refund, but the seller has not in this case - they have refunded the buyer.

I assume that the seller is exercising his right of action against the buyer for breach of the statutory duty to take reasonable care of the goods. Using first class post for a valuable item is not taking reasonable care.

I agree though, that you can never be certain of what a (human in a) court will rule. So I stand corrected. I do hope that the seller wins though.

If I were the OP, I would offer the seller what I reasonably thought that the lost item was worth (since he says that it was worth less than the originally-ordered item) though, and not the full amount the seller is claiming.

bazzyb

Strapped wrote: »

Nope, you're responsible for ensuring the seller gets it back. If the OP can't provide proof of delivery then he will lose

I don't think this is correct. If the OP has proof of posting then the court will deem that the item was delivered 2 days after posting. I believe Section 7 of the Interpretation Act 1978 confirms this (so long as the item was properly addressed and the correct postage was paid) however this does refer to 'documents' rather than 'items'.

Wywth

Don't you just love the Barrack Room Lawyers on the internet? :cool:

delirious

Sorry, I should've said that the seller is a private seller.

The software was £160 and I paid £5 delivery. Therefore, the seller actually refunded my £165 payment plus £5 for postage.

I am happy and willing to accept full responsibility for the item going missing but the reason for posting this thread is that a) the seller is claiming for the full refund to be returned, despite the fact that the price I paid was for a Full version of the software (with a RRP of £417) and what was received (and subesquently lost) was an upgrade version which is no longer available on sale, other than via ebay and 3rd part sellers at prices ranging from £76-£250.

Additionally, the seller never once asked me to return the refund, did not serve notice that he intended to take me to court or anything of the sort - if he had contacted me, we could've sorted this out.

RFW

Wywth wrote: »

Don't you just love the Barrack Room Lawyers on the internet? :cool:

Indeed.

Get advice from a solicitor or Citizen's Advice Bureau, don't rely on advice from anonymous strangers on the internet, none of them will be helping you in court.

Gather as much documentation, including copies of emails, relating to the case and write down your version of events to discuss it with them.

oldone_2

I trust you have checked that the 'court papers' are genuine.

lovinituk

RFW wrote: »

Indeed.

Get advice from <snip> or Citizen's Advice Bureau <snip>

To be fair they are probably not that much better than getting advice from the internet!

RFW

lovinituk wrote: »

To be fair they are probably not that much better than getting advice from the internet!

They can point in the right direction, at the moment the OP has about half a dozen pieces of advice.