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  • FIRST POST
    • Timbersnake
    • By Timbersnake 28th Jun 18, 4:49 PM
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    Timbersnake
    Stubhub Seller terms - legal?
    • #1
    • 28th Jun 18, 4:49 PM
    Stubhub Seller terms - legal? 28th Jun 18 at 4:49 PM
    Considering the current topical debate on ticket resellers I thought it apt to start a thread exploring the legal validity of Stubhubs seller terms.



    Stubhub states that it is merely a marketplace. They do not own the tickets being sold and any contract is solely between the seller and buyer.



    Yet, if a seller does not fulfill a sale and cancels the transaction, Stubhub demands a fee of any difference between the value of the original ticket and any replacement, addtional delivery costs and an admin fee.


    Typically, general consumer law would provide the requirement to provide the buyer with a refund if they purchased goods they did not receive. Stubhub do not sell tickets so the obligation of the refund would reside with the seller. Stubhub however choose to go over and above statutory rights with an offer of a guarantee.



    Stubhub provide a Payment and Services agreement to facilitate the transaction between seller and buyer, this appears to be the limit of their involvement.



    Under Stubhubs seller terms, it states the right to charge a seller a fee for what it terms a 'dropped sale', where the seller did not complete the transaction by providing the tickets. This can include the differnce between the originl ticket value and any replacement tickets they offer the buyer in the event of a dropped sale.



    It is unclear how this is legally enforceable and how consumer rights provisions provide for this condition. It would be interesting to know how successful Stubhub, or subsequent debt collectors, have been in pursuing such fees through court.



    The terms seem to go over and above, indeed could be deemed excessive, any applicable rights or law.



    It seems the fee is pursued when the seller has breached the terms of the 'marketplace', over and above the usual obligation of a refund in the event the transaction was not completed through receipt of purchased goods.



    I have not been able to trace any applicable law that allows a legally binding contract between a private individual seller of secondhand goods (if a ticket resale is deemed as such) and a marketplace where the goods are sold. Auction house rules may not apply as the marketplace does not function as an auction.



    I hope the thread can shed some light on the validity of Stubhubs terms and therefore some approaches to recourse where sellers have unwittingly found themselves falling foul of them and facing excessive charges.
    Last edited by Timbersnake; 30-06-2018 at 9:11 AM.
Page 1
    • Timbersnake
    • By Timbersnake 29th Jun 18, 1:43 PM
    • 18 Posts
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    Timbersnake
    • #2
    • 29th Jun 18, 1:43 PM
    • #2
    • 29th Jun 18, 1:43 PM
    As I find out more information i'll update the thread accordingly.



    The first thing is to establish the relationship between the seller and Stubhub. Stubhub provides a 'platform' or 'marketplace' that enables the reselling and buying of event tickets between private individuals or businesses and purchasers. Stubhub does not own or sell tickets.



    The platform/marketplace is not entirely free to use. It is free to subscribe to an account to use the platform, it is free to list available tickets and it is free to browse for events and ticket availability. Service Fees however are applied to the seller and buyer upon any sale and transaction.



    Therefore at this stage it seems fair to state that both ticket sellers and buyers are simultaneously customers of Stubhub. In regards to ticket sales, the 'seller' of the ticket is not Stubhub so the 'seller' is the 'trader' and the buyer the 'consumer'. However in regards to using the platform/marketplace, both seller and buyer are considered consumers and Stubhub as the trader.



    Definition of Business and Consumer:

    Business. s 1(3), The Act only applies to "liability for breach of obligations or duties arising (a) from things done or to be done by a person in the course of a business (whether his own business or another's); or (b) from the occupation of premises used for business purposes of the occupier". s14, Includes any government department.
    Consumer. s 12,[3] A party deals as a consumer if
    • s12(1)(a), He is not in the course of a business and does not hold himself to do so.[4]
    • s12(1)(b), the other party is in the course of a business.
    • s12(1)(c), In Sale of Goods contract, the goods are of a type "ordinarily supplied for private use or consumption" (s12(1A), this subsection does not apply to individuals)
    • s12(2), A party is not a consumer if dealing at an auction where he has the opportunity to attend in person or is not a natural person buying auction.
    • s12(3), Burden is upon the party purported to be acting in the course of a business to show that either he is not in the course of a business or that the other party is otherwise not a consumer.

    Therefore a private individual selling tickets via Stubhub is a consumer of Stubhub as Stubhub is conducting itself as a business according to S12(1)a. While the seller is acting as a trader by selling tickets to another consumer, the Sale of Goods contract does not apply to individuals according to S12(1)c.



    On this basis, the rights to be applied could be related to:

    Consumer Rights Act 2015
    Unfair Contract Terms Act 1977
    Unfair Terms in Consumer Contracts Regulations 1999
    Sale of Goods Act 1979
    Supply of Goods and Services Act 1982


    Not all, if any, of the above may be relevant or applicable. In addition, a variety of bodies apply, such as the Competition and Markets Authority (replaces Office of Fair Trading).


    So on this basis, it seems the approporiate course is to ascertain whether the 'dropped sale' fees of 40% can be deemed as 'fair'. The Unfair Terms in Consumer Contracts Regulations 1999 was superceded and replaced by the Consumer Rights Act on 1 October 2015 . This will be the first avenue i'll explore.



    To clarify, while a consumer may agree to the terms and conditions set out by Stubhub when using their service and selling tickets, that does not mean the terms are fair, enforceable or supercede English/UK Laws.
    Last edited by Timbersnake; 29-06-2018 at 1:49 PM.
    • IAmWendell
    • By IAmWendell 5th Jul 18, 11:48 AM
    • 1 Posts
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    IAmWendell
    • #3
    • 5th Jul 18, 11:48 AM
    • #3
    • 5th Jul 18, 11:48 AM
    I'm particularly interested in seeing where this thread goes. I've received been stung with both a 40% charge and an additional charge of c. 25% when I cancelled my tickets after they were bought. Their communication (or lack thereof) of these charges must leave them in shaky ground, regardless of the overall legality...

    Will keep an eye on this!
    • Timbersnake
    • By Timbersnake 5th Jul 18, 3:21 PM
    • 18 Posts
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    Timbersnake
    • #4
    • 5th Jul 18, 3:21 PM
    • #4
    • 5th Jul 18, 3:21 PM
    After thoroughly immersing myself in the Consumer Rights Act 2015 I have found the following.



    First we establish the terms Stubhub are using to justify imposing fee's on the seller in the event of a dropped sale.



    To quote from their terms and conditions:

    ‘StubHub reserves the right to charge you the following additional fees and other charges to cover StubHub’s costs for resolving the issue, including finding replacement Tickets or issuing a refund to the Buyer:

    These are:
    (a) StubHub may charge a replacement fee which consists of the price of a comparable or better replacement Ticket. The replacement fee can be higher than the original sales price of your Ticket.

    (b) StubHub may also charge you for any additional delivery costs which arise out of resolving issues caused by orders that were not correctly fulfilled.

    (d) In addition to the fees and charges above StubHub may charge an administrative fee for the costs incurred by StubHub when resolving issues caused by any order that is not correctly fulfilled, such administrative fee shall be calculated by reference to the location of the event to which your ticket relates, as follows: £25 (per issue) for events located in the United Kingdom.


    When assessing these terms against the CRA 2015, a number of issues that gave rise to the potential for the terms to be deemed unfair were identified.



    To place this in context, here are two practicle examples of how these terms might operate in other markets:


    A: Seller is selling their home via an agent. They find a buyer and agree to sell. At the last minute, the seller pulls out and the transaction is dropped. The agent finds an alternative but more expensive home for the buyer, provides that home and then sends the original seller a bill for the difference between the two homes.



    B: Seller is selling a used bicycle via a reputable online market place. Buyer purchases bicycle but seller has already sold the bicycle elsewhere so it is no longer available for sale. Seller issues a refund. Buyer finds another similar bicycle for sale, but at a slightly higher price, and purchases it. The seller is directly charged by the online marketplace for the difference between the two bicycles.



    As you can see, the above scenarios, in reality, never occur and nor would they be accepted. More importantly though if an individual or business wants to claim some form of loss from another party, it would be for the courts to decide if the claim is fair, not the business or individual.



    According to the CRA 2015:

    Right of final decision
    'The consumer could be at a disadvantage when a term gives the business the right to decide how the contract is interpreted or whether any breach has occurred. Concerns also arise in relation to terms that could allow the business to impose sanctions on consumers for what it chooses to regard as their breaches, whether the law would regard the consumer as being in breach or not.'


    This statement is the true core of the problem. There are others, but this is the section of the act which holds the most significance in whether Stubhubs terms could be deemed unfair.



    Remember, Stubhub claim that they '.... reserve the right to charge you the following additional fees and other charges to cover StubHub’s costs for resolving the issue...'



    However they don't have the right at all. If Stubhub feel they have incurred losses as a result of a dropped sale, they must request those losses and in the event of disagreement, the matter must be settled by a judge in a court of law. Only a judge reserves the right to decide if a breach of contract has occured and if the losses claimed are fair.



    The act goes on to say:


    S2, Part 1 para 16
    'Terms allowing the trader to decide when the consumer is in breach of his or her obligations are open to comparable objection. Any kind of term which has the object or effect of allowing the trader to impose an unexpected financial burden on the consumer gives rise to concern.'

    The seller would be unaware of what value the fee would be, as they would not know the difference in value between their tickets and any replacements, which could be very significant.





    'The business should not make the consumer its insurer. The use of such terms is sometimes defended on the basis that they enable prices to be kept down. But unless suitable insurance is easily available to consumers at reasonable cost, they are still liable to be worse off for the use of such a term.'


    Stubhub provides replacement tickets through its Fanbase Guarantee. However in effect it is offloading the burden onto sellers, as it is the sellers who end up paying the costs incurred by the guarentee. Stubhub makes the consumer (seller) their insurer.



    'Similar principles apply in relation to other kinds of term, which purport to allow traders to take direct action to secure redress that the court would not necessarily allow. Suspicion of unfairness falls on any term giving to the business, or its agent, excessive power to decide whether the consumer ought to be subject to a financial sanction, obliged to make reparation of any kind, or deprived of any benefits under the contract. '



    Stubhub does take direct action by immediately charging consumers (sellers) the fees incurred from a dropped sale direct to the sellers method of payment. It is fair to assume, when using the above practical examples above, that a court would not normally award 'losses' incurred from any prices differences due to a dropped sale.




    There are a number of other potential issues with the terms and conditions, not least in their transparency and prominancy. There is also potential for breaches of Commercial Practice law. However, assessment of unfairness against the CRA 2015 suggests that the terms have a good chance of being found unfair and that it is wholly inappropriate for Stubhub to decide if any breach has occured and directly take financial redress from sellers.


    I am now going to devise a strategy for bringing an end to this practice. If the practice is indeed found unfair, not only will Stubhub be compelled to change its behaviour and remove the term, but there could be a significant call for reimbursement to many sellers over a large period.
    • MataNui
    • By MataNui 6th Jul 18, 8:15 AM
    • 1,054 Posts
    • 602 Thanks
    MataNui
    • #5
    • 6th Jul 18, 8:15 AM
    • #5
    • 6th Jul 18, 8:15 AM
    Doubt the consumer rights act would apply. Stubhub are facilitating you selling something. It would be difficult to argue that you are a 'consumer'. It is more like a 'B2B' relationship than anything else (i know, you are not a 'business' but thats not particularly relevant. Its the relationship between you thats important).


    If you did try this on in court i would bet Stubhub wouldnt even bother arguing against your 'consumer rights' issues. They would go all out to convince a judge that the nature of the business and the terms of the contract explicitly point to a 'B2B' relationship meaning that the contract terms are absolute and your argument is irrelevant. Honestly i dont think you would have a hope in hell of winning that one.
    • Timbersnake
    • By Timbersnake 6th Jul 18, 10:30 AM
    • 18 Posts
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    Timbersnake
    • #6
    • 6th Jul 18, 10:30 AM
    • #6
    • 6th Jul 18, 10:30 AM
    Doubt the consumer rights act would apply. Stubhub are facilitating you selling something. It would be difficult to argue that you are a 'consumer'. It is more like a 'B2B' relationship than anything else (i know, you are not a 'business' but thats not particularly relevant. Its the relationship between you thats important).


    If you did try this on in court i would bet Stubhub wouldnt even bother arguing against your 'consumer rights' issues. They would go all out to convince a judge that the nature of the business and the terms of the contract explicitly point to a 'B2B' relationship meaning that the contract terms are absolute and your argument is irrelevant. Honestly i dont think you would have a hope in hell of winning that one.
    Originally posted by MataNui

    Thank you for your reply.



    Firstly, contract terms are not 'absolute'. No entity has the right to make up it's own contract terms and enforce them. Decisions on fairness of contract terms, breaches and redress are preserved for judges and courts. Hence the Unfair Commercial Practices regulatons.



    I direct you to the legislative definition of a 'trader' and a 'consumer' made on my post in this thread on 29 June:


    Definition of Business and Consumer:

    Business. s 1(3), The Act only applies to "liability for breach of obligations or duties arising (a) from things done or to be done by a person in the course of a business (whether his own business or another's); or (b) from the occupation of premises used for business purposes of the occupier". s14, Includes any government department.
    Consumer. s 12,[3] A party deals as a consumer if
    • s12(1)(a), He is not in the course of a business and does not hold himself to do so.[4]
    • s12(1)(b), the other party is in the course of a business.
    • s12(1)(c), In Sale of Goods contract, the goods are of a type "ordinarily supplied for private use or consumption" (s12(1A), this subsection does not apply to individuals)
    • s12(2), A party is not a consumer if dealing at an auction where he has the opportunity to attend in person or is not a natural person buying auction.
    • s12(3), Burden is upon the party purported to be acting in the course of a business to show that either he is not in the course of a business or that the other party is otherwise not a consumer.

    Therefore a private individual selling tickets via Stubhub is a consumer of Stubhub as Stubhub is conducting itself as a business according to S12(1)a. While the seller is acting as a trader by selling tickets to another consumer, the Sale of Goods contract does not apply to individuals according to S12(1)c.



    We are focusing on the relationship between the seller and Stubhub. A private individual reselling a ticket to another private individual should not be classed as a 'business'. If the relationship between the seller and Stubhub was classed as a b2b relationship, this would have enormous ramifications on all sides for puposes of tax, money laundering, tendering and commercial contracting law and so on.


    So with all this in mind, the Consumer Rights Act does seem to be the most applicable under the circumstances. However, there are also Unfair Commercial Practices that could apply if the relationship is obsurdly held us a commercial in nature.



    I will not be pursuing a court proceding with Stubhub, that is something I will be lobbying the Government to do.
    • flammable999
    • By flammable999 12th Nov 18, 6:49 PM
    • 113 Posts
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    flammable999
    • #7
    • 12th Nov 18, 6:49 PM
    • #7
    • 12th Nov 18, 6:49 PM
    I know I am resurrecting an old thread and I don't expect to get much sympathy but meh. This is what basically happened:

    Punished for a typo and the imbalance with which Stubhub favours the buyer over the seller.
    So just been off the phone with a Stubhub rep and then her supervisor and I am still incredibley upset.



    Basically, I put some tickets up to sell. I am human, like everyone else, and I mistake. I typoed the selling price and entered £300 instead of £30. Predictably, they all sold for that price and that was when I was aware of my mistake. The thre options given for reporting an issue were insuffiecent for this instance, and so I thought I would just select the one I felt was the closest fit, and selected "I do not have the tickets". I did this, so the buyers could then source alternative tickets sooner rather than later.



    I was charged £25 cancellation fee for each sale which is completely acceptable. I then received further charges of 42.24, 343.20 299.20, because these amounts were 40% of my selling price, presumably to compensate the buyer.



    I find it upsetting on two fronts about how Stubhub favoured the buyer over the seller. Firstly, this is not as if this is a last minute thing with the event a few days away. The event is six months away! The amount I have been charged is not a true reflection of the level of inconvenience the buyer has suffered at all. I could understand it if it was a last minute thing. Furthermore, I have to wait until the event has taken place before I get my money for selling the tickets. They have taken these charges straight away so now I am doubly out of pocket. First, for the amount I paid to buy the tickets in the first place and then secondly these charges. I understand that there is buyer protection guarantees and how the charges are done automatically, but Stubhub would not provide any leeway at all. I asked if they could at least hold the charges until the event had taken place so I am not doubly out of pocket, but no. I understand theres policies and processes but there is also the ability to excercise some discretion and/or good will. All this, because I did a very human thing and made a mistake and typoed and because I wanted the buyer to get sorted sooner rather than later, I chose an option to cancel the sales.



    I just find the whole treatement disproportionate and one sided.
    • p00hsticks
    • By p00hsticks 12th Nov 18, 8:40 PM
    • 7,191 Posts
    • 7,939 Thanks
    p00hsticks
    • #8
    • 12th Nov 18, 8:40 PM
    • #8
    • 12th Nov 18, 8:40 PM
    Your post doesn't make sense to me (and the bold hurts my eyes) - perhaps it's because I'm not really familar with Stubhub


    Basically, I put some tickets up to sell. I am human, like everyone else, and I mistake. I typoed the selling price and entered £300 instead of £30. Predictably, they all sold for that price and that was when I was aware of my mistake.
    Originally posted by flammable999
    So you had some tickets that you meant to sell for £30 but you mis-typed the price and asked for £300 instead ?

    And they all sold for £300 - so where's the problem - why did you not simply sell them for that price ?

    I
    I was charged £25 cancellation fee for each sale which is completely acceptable. I then received further charges of 42.24, 343.20 299.20, because these amounts were 40% of my selling price, presumably to compensate the buyer.
    Originally posted by flammable999
    How are £42.24, £343.20 and £299.20 ever 40% of £300 ?
    • flammable999
    • By flammable999 12th Nov 18, 9:17 PM
    • 113 Posts
    • 21 Thanks
    flammable999
    • #9
    • 12th Nov 18, 9:17 PM
    • #9
    • 12th Nov 18, 9:17 PM
    Your post doesn't make sense to me (and the bold hurts my eyes) - perhaps it's because I'm not really familar with Stubhub



    So you had some tickets that you meant to sell for £30 but you mis-typed the price and asked for £300 instead ?

    And they all sold for £300 - so where's the problem - why did you not simply sell them for that price ?



    How are £42.24, £343.20 and £299.20 ever 40% of £300 ?
    Originally posted by p00hsticks
    Sorry my bad. I meant I entered £30 instead of £300. In Stubhub's defence, they have sorted it out very acceptably. They have reduced the other two charges to £42.24
    • rachyrach83
    • By rachyrach83 5th Jan 19, 3:10 PM
    • 1 Posts
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    rachyrach83
    What happened?
    Hello!
    I'm in a similar situation. Sold tickets in error, notified stubhub immediately and now they're trying to me 50% of the order value (£200). I would mind paying a small fee, but this is completely unfair particularly as they can refund the order?
    What happens if I refuse to pay does anyone have experience of this?
    • sabrinab
    • By sabrinab 12th Jan 19, 10:14 PM
    • 1 Posts
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    sabrinab
    StubHub excessive un-supported charges
    Hi,

    I received a refund for my tickets from Ticketmaster after my tickets had sold on StubHub.
    I therefore had to cancel the sale on StubHub as I no longer had the tickets.

    The listing price for the tickets were £99, £396 for the four.
    At the time of me cancelling my tickets the price of comparable tickets were available for £130.
    I have a screenshot to show this, which clearly shows the date.

    StubHub have charged me £264.72.
    The four tickets were sold in 2 pairs, so £25 admin fee per pair (£50)
    As well as £107.36 per pair to 'make it right to the buyer' (£214.72)

    I opened a case on Resolver and tried to get StubHub to reduce the charges to the difference between the comparable ticket price at the time of me cancelling them (£130) and my original listing price (£99). Therefore I tried to get them to reduce the charge to £174 = £31 per ticket (£124 for the four), plus £50 admin fee.

    They declined, it's now being going on for 2 months and I have escalated my case on Resolver.
    StubHub haven't provided any evidence of how they got to the £107.36 per pair (£214.72).

    I'm not sure what to do next, but would like to continue to take it further as I don't know how StubHub can get away with charging whatever price they see fit without any evidence to support it.

    Please could somebody advise?
    • StubHubScam
    • By StubHubScam 25th Feb 19, 9:00 PM
    • 1 Posts
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    StubHubScam
    Today StubHub have tried to justify dropped sale fees with the following statement. Very interested to hear anyones views. Thanks


    The charges would be taken from a credit card/debit card you have added to your StubHub account. In terms of not fulfilling your order and the legal implications surrounding this. When listing tickets with ourselves, you agree to our terms and conditions which state: "7.3 By listing a Ticket for sale, you are making a binding offer to sell that Ticket to a Buyer who purchases the Ticket at the Sales Price. When a Buyer accepts your offer by purchasing your Ticket through our Site, you are contractually bound to deliver that exact Ticket for Sales Price and within the required delivery timeframe. You are obligated to monitor your inventory and ensure all listings are accurate. Under no circumstances may Sellers cancel orders at one price and repost the same tickets for a higher price. Failure to fulfill your orders will lead to charges as stated in this User Agreement and Seller Policies."
    As per the consumer contracts regulation 2013 specifically point H, which indicates that if a contract is not adhered to in terms of a leisure activity (which event tickets fall under) then the order can be cancelled and our user policies enforced which we are doing here through charging yourself.
    The charges to yourself are the £25.00 administration fee and the cost incurred by ourselves to make it right for the buyer (source replacement tickets) as per our Fan Protect Guarantee.
    • Jxdekxlly
    • By Jxdekxlly 4th Mar 19, 3:50 PM
    • 1 Posts
    • 0 Thanks
    Jxdekxlly
    Hi, I was wondering what the outcome of this was as I am in a similar situation?
    • specialandres
    • By specialandres 10th Mar 19, 12:33 AM
    • 1 Posts
    • 0 Thanks
    specialandres
    I'm in a similar situation, please tell us how wha's going on with your issue
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