Rights with buying on ebay vs Seller terms and conditons

nic11

Hi,
Long time lurker but first time poster on here. I recently purchased some furniuture from an online ebay trader (they have been going a long while with lots of feedback so felt i should be reasonably safe). Unfortunately after delivery it was discovered one of the pieces was damaged. The packaging itself showed no sign of damage and the missing piece is not in the box anywhere so i can only assume this happened prior to despatch.
I let the seller know within 48 hours, but so far they have only helpfully(!) forwarded their delivery and returns conditions which state that upon delivery the items should be unpacked and inspected for damage before signing (not possible as person accepting delivery would not be physically able to do this due to weight size of item). The other part is we should let the company know within 24 hours, which unfortunately in this case was just not possible (they were told within 48 hours though). So far i have not escalated it to e-bay, but since the communication from the seller sending their terms and conditions I have not heard anything further. Im hoping my statutory rights should cover this scenario regardless of the conditons the seller has supplied in their literature.
I actually like the product and would accept a repair or replacement, but so far this has not been forthcoming. If not satisfactory response is forthcoming i am planning to escalate to ebay then paypal then credit card i guess.
What im really wanting to understand is whether i am likely to succeed if the seller has devised their (i believe unrealistic) terms and conditons, or whether ebay et al will just side with the seller?
Any advise much appreciated.
Thanks,

zaax

T&C don't over ride UK law. See above links for your rights, and escalate today.

maninthestreet

nic11 wrote: »

Hi,
Long time lurker but first time poster on here. I recently purchased some furniuture from an online ebay trader (they have been going a long while with lots of feedback so felt i should be reasonably safe). Unfortunately after delivery it was discovered one of the pieces was damaged. The packaging itself showed no sign of damage and the missing piece is not in the box anywhere so i can only assume this happened prior to despatch.
I let the seller know within 48 hours, but so far they have only helpfully(!) forwarded their delivery and returns conditions which state that upon delivery the items should be unpacked and inspected for damage before signing (not possible as person accepting delivery would not be physically able to do this due to weight size of item). The other part is we should let the company know within 24 hours, which unfortunately in this case was just not possible (they were told within 48 hours though). So far i have not escalated it to e-bay, but since the communication from the seller sending their terms and conditions I have not heard anything further. Im hoping my statutory rights should cover this scenario regardless of the conditons the seller has supplied in their literature.
I actually like the product and would accept a repair or replacement, but so far this has not been forthcoming. If not satisfactory response is forthcoming i am planning to escalate to ebay then paypal then credit card i guess.
What im really wanting to understand is whether i am likely to succeed if the seller has devised their (i believe unrealistic) terms and conditons, or whether ebay et al will just side with the seller?
Any advise much appreciated.
Thanks,

When did you purchase these items? You need to file a claim with paypal as the goods are 'not as described'. Forget about filing a claim with your CC provider - they paid paypal, and will not be able to help you.

gik

There's perhaps a better place to post here:-


http://forums.moneysavingexpert.com/forumdisplay.php?f=40

unholyangel

From OFT's unfair contract terms guidance (specifically the section titled "time limit on claims"):

2.4.2 The OFT is likely to object to a term that frees the supplier from his responsibilities towards the consumer where the consumer does not make a
complaint immediately or within an unduly short period of time. This applies
particularly where:
(a) a time limit is so short that ordinary persons could easily miss it
through mere inadvertence, or because of circumstances outside
their control, and
(b) faults for which the supplier is responsible which could only become
apparent after a time limit has expired.

2.4.3 Prompt notification of complaints is desirable because it encourages
successful resolution and is therefore to be encouraged. But taking away all
rights to redress is liable to be considered an over-severe sanction for this purpose. Where goods are supplied, use of such a term is legally incapable of producing that effect and may amount to an offence, because it serves to restrict the consumer's statutory rights – see paragraph 2.1.1.

2.4.4 Any fault found in goods within six months of the date of sale is assumed to be the supplier's responsibility unless he can prove otherwise. It is therefore particularly misleading for contract terms to seek to exclude or limit the consumer's right to redress for faulty goods during the first six months
after purchase. As noted above (page 11) the use of misleading terms may
give rise to enforcement action as an unfair commercial practice.

2.4.6 There is similarly no objection to a term warning consumers of the need to
check to the best of their ability for any defects or discrepancies at the
earliest opportunity, and take prompt action as soon as they become aware
of any problem. Concerns do not arise so long as there is no suggestion
that the supplier disclaims liability for problems which consumers fail to
notice.

And if you look in the annexe A, you'll see examples of terms that OFT made companies change and what they made them change them to.

For example:

Original term
… the Customer shall … give Maples written notice of such loss or
damage with reasonable particulars thereof within 3 days of receipt of the
Goods.
Action taken
New term: … You must tell us about any fault or damage as soon as is
reasonably possible.

Original term
Faulty goods will be exchanged if returned or notified within 7 days from
the date of invoice and returned in original, clean and full packaging.
Action taken
Term deleted.

Original term
Written notice of any defect in the goods when delivered shall be served
upon the company within 7 days of delivery. The Customer shall be
deemed to have accepted the goods 7 days after delivery.
Action taken
New term: The Customer is asked to examine the goods as soon as
reasonably possible after delivery and notify the Company of any fault or
damage as soon as reasonably possible.

Original term
Hirer must inform Lessor within 48 hours, excluding public holidays, of
any loss of, or damage occurring to vehicle and of any fault reasonably
requiring repair, developing therein …
Action taken
New term: You must let us know as soon as you become aware of a fault
in the vehicle. [/qupte]

nic11

Thanks for all the assistance so far.I actually only purchased the furniture on the 11th Nov, with it being delivered last thursday, and me going back to them on Saturday with the issue. As a 'goodwill' gesture they are now offering to pay towards the repair of the table (although have not yet specified an amount), but I will not be accepting anything less than the full cost of the repair, which i actually think is a fair compromise.
I appreciate businesses want to limit any losses in this environment so am trying to avoid getting too agressive too early by allowing them enough time to put things right, but the fact they are trying to put across these unreasonable t&c's as their get out clause is souring the whole experience. I think if i dont get a reasonable response by close of play tomorrow i will begin the next steps. Just concerned ebay/paypal will side with the seller and leave me out of pocket.