<< <i>Although I can see it each way, it all goes back to the same thing....eBay is stoooooopid
Ebay is creating so many variations of fees, fee schedules, listing discounts, DSR numbers, feedback numbers, etc etc, it sounds like the US tax code being created all over again. >>
Agreed... ebay would be a better place if they would just come up with basic uniform rules for everyone to play by from the small time seller to their largest power seller!
" In the real world, not the EBAY/internet world, the rsik of not getting the merch you ordered and paid for is small."
yup- until it happens!
a 2-coin package shipped to me got lost HERE- in MY TOWN!
I'm at a loss as to how "Shipping & Handling" goes beyond the seller packing it up and getting it to the shipper- unless explicitly stated otherwise.
I've recently was billed $4.60 (on $211 value) and $5.50 ($380 value). Initially I started saying : insurance included in shipping and handling. I'm no longer saying that .
If I, as a buyer, have just made a sweet deal vs any reference price one cares to choose, I'm not quick to throw it away over an insurance charge.
WILL WORK FOR CENTS, QUARTERS, HALVES, DOLLARS....
<< <i>"...I'm at a loss as to how "Shipping & Handling" goes beyond the seller packing it up and getting it to the shipper- unless explicitly stated otherwise..." >>
//////////////////////
That really is at the heart of the friction on the issue between buyers/sellers on EBAY.
For years on EBAY, the common seller lingo was:
"We cannot be responsible for loss or damage unless buyer purchases shipping insurance."
These were not weasel words, for the most part. They were made in good faith by sellers who thought they understood that UCC did/should apply to EBAY transactions processed via PayPal and/or credit cards.
Those sellers were simply WRONG.
EBAY, PP - and to a lesser extent the credit card companies - have simply supplanted their "consumer friendly" policies for the longstanding tradition of UCC/FOB commerce.
In stranger-to-stranger amateur commerce, they really had little choice but to do so.
Sellers who hate it, have little choice but to sell elsewhere.
Folks Who Bite Get Bitten. Folks Who Don't Bite Get Eaten.
<< <i>"...I'm at a loss as to how "Shipping & Handling" goes beyond the seller packing it up and getting it to the shipper- unless explicitly stated otherwise..." >>
//////////////////////
That really is at the heart of the friction on the issue between buyers/sellers on EBAY.
For years on EBAY, the common seller lingo was:
"We cannot be responsible for loss or damage unless buyer purchases shipping insurance."
These were not weasel words, for the most part. They were made in good faith by sellers who thought they understood that UCC did/should apply to EBAY transactions processed via PayPal and/or credit cards.
Those sellers were simply WRONG.
EBAY, PP - and to a lesser extent the credit card companies - have simply supplanted their "consumer friendly" policies for the longstanding tradition of UCC/FOB commerce.
In stranger-to-stranger amateur commerce, they really had little choice but to do so.
Sellers who hate it, have little choice but to sell elsewhere. >>
I still haven't found in the UCC where it says that the buyer has to pay shipping insurance in order for the seller to be responsible
Reading one at a time. Specifically section 2-509 concerning "Risk of Loss in Absence of Breach".
Subsection 1(b) implies if I read it correctly that if there is a destination that the seller is responsible for getting the item to the destination. Furthermore, my interpretation of this once the item reaches the buyer's destination, responsiblity transfers, but not until then (e.g. once it reaches the buyer's mailbox)
Same as subsection 3 if the seller is a merchant. So, that would mean under subsection 3, if it can be demonstrated that the seller normally sells goods, then this subsection applies, and the seller is responsible for the successful delivery of goods.
Only subsection 1(a) implies otherwise. However, I would say that a mailing address does qualify as a "destination".
Checking under (Diamondman's rules of selling RULE # 1), The buyer is responsible for everything and should also have to pay a 50% buyers premium.
Rule # 2 (Diamondman's rules of buying RULE # 2), The seller is responsible for everything and should also have to pay a 50% sellers premium.
Rule # 3 The Most Important Rule. Diamondman is always right and for this information everyone who reads this must immediately paypal me five dollars to 1 billion dollars)
Rule # 4 (see Rule # 3 (which basically says the bank is always right).
Most FOB commerce has ALWAYS relied on the notion that title passes at hand off from seller to carrier, because that is how the contracts are generally drafted. The contract is free to be drafted/agreed otherwsie.
THAT means SOMEBODY better insure the thing.
The party obliged to pay for that insurance is spelled out in the contract. If it is not, the UCC looks for relative "blame" in case of an uninsured loss. Or, it may allow that the seller is totally liable.
(An example of "relative blame" comes, for example, if the seller offered insurance to the buyer, but the buyer declined the insurance. Conversely, the UCC may assign total "blame" to the seller, if the seller failed to offer the insurance option.)
EBAY and PP have adopted the notion cited at 2-509, without even bothering to look to the contract. Thus, "delivery confirmation" is considered "proof of receipt," when in fact it proves only that the item was delivered "somewhere." (2-509 and other sections are addressing "what to do if the contract gives no contrary guidance".)
While EBAY's scheme/interpretation is fast being seen as the way it should be, it is totally contrary to the concepts laid out in the UCC regarding reliance on the terms of the contract. And, is completely different than the way business has been conducted for centuries.
In other words, the contract prevails under UCC. On EBAY, the contract means NOTHING, unless it conforms to EBAY and PP policies.
The UCC starts out assuming that the contract spells out the duties. It then tells us how to solve problems, IF we failed to properly "spell out" what our intentions were.
When an EBAY seller says, "Insurance is mandatory," or "Insurance is optional," he is making as part of the propsed "contract" a poorly stated declaration that the TITLE PASSES when the carrier receives the merch.
The fact that EBAY does not look to the contract, does not change that fact.
The "contract" is simply void when it does not comport with EBAY/PP policies.
.............
UCC always looks to the contract FIRST.
...Subject to these provisions and to the provisions of Article 9, title to goods passes from the seller to the buyer in any manner and on any conditions explicitly agreed on by the parties........"
§ 2-401. Passing of Title; Reservation for Security; Limited Application of This Section.
Each provision of this Article with regard to the rights, obligations and remedies of the seller, the buyer, purchasers or other third parties applies irrespective of title to the goods except where the provision refers to such title. Insofar as situations are not covered by the other provisions of this Article and matters concerning title become material the following rules apply:
(1) Title to goods cannot pass under a contract for sale prior to their identification to the contract (Section 2-501),.........Subject to these provisions and to the provisions of Article 9, title to goods passes from the seller to the buyer in any manner and on any conditions explicitly agreed on by the parties.
EBAY and PayPal go directly here, WITHOUT looking at the contract.........
(2) Unless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes performance with reference to the physical delivery of the goods, .............
(a) if the contract requires or authorizes the seller to send the goods to the buyer but does not require the seller to deliver them at destination, title passes to the buyer at the time and place of shipment; but
(b) if the contract requires delivery at destination, title passes on tender there.
(3) Unless otherwise explicitly agreed where delivery is to be made without moving the goods,
(b) if the goods are at the time of contracting already identified and no documents of title are to be delivered, title passes at the time and place of contracting.
(4) A rejection or other refusal by the buyer to receive or retain the goods, whether or not justified, or a justified revocation of acceptance revests title to the goods in the seller. Such revesting occurs by operation of law and is not a "sale".
.................
§ 2-509. Risk of Loss in the Absence of Breach.
(1) Where the contract requires or authorizes the seller to ship the goods by carrier
(a) if it does not require him to deliver them at a particular destination, the risk of loss passes to the buyer when the goods are duly delivered to the carrier even though the shipment is under reservation (Section 2-505); but
(b) if it does require him to deliver them at a particular destination and the goods are there duly tendered while in the possession of the carrier, the risk of loss passes to the buyer when the goods are there duly so tendered as to enable the buyer to take delivery.
( That is why we all often say, "On EBAY, insurance is for the protection of the seller, not the buyer." )
(3) In any case not within subsection (1) or (2), the risk of loss passes to the buyer on his receipt of the goods if the seller is a merchant; otherwise the risk passes to the buyer on tender of delivery.
(4) The provisions of this section are subject to contrary agreement of the parties and to the provisions of this Article on sale on approval (Section 2-327) and on effect of breach on risk of loss (Section 2-510).
And, YES, EBAY and PayPal have decided that "destination" for items under $250, simply means "a mailbox somewhere."
THAT fact makes it foolish for buyers who actually want to receive their item, to allow merch to travel uninsured.
The EZ solution to the controversy is for the seller to INSURE all items, using the proceeds of the sale. Those proceeds are simply increased by his contracted price, and the buyer thus funds the insurance.
...........
Lost and Misdelivered Items that have DC or SC tickets:
Buyers should note that any unsophisticated seller can defeat an INR PayPal claim, that is shown as "delivered" by DC or SC.
BUT, if such items have been insured by the carrier, the buyer can file for and be awarded a money refund for the "lost or misdelivered" item.
That is the instance in which it is most in the interest of a BUYER to be sure his items have been insured; even if he has to pay for that insurance.
Folks Who Bite Get Bitten. Folks Who Don't Bite Get Eaten.
(1) Where the contract requires or authorizes the seller to ship the goods by carrier
(a) if it does not require him to deliver them at a particular destination, the risk of loss passes to the buyer when the goods are duly delivered to the carrier even though the shipment is under reservation (Section 2-505); but
(b) if it does require him to deliver them at a particular destination and the goods are there duly tendered while in the possession of the carrier, the risk of loss passes to the buyer when the goods are there duly so tendered as to enable the buyer to take delivery.
( That is why we all often say, "On EBAY, insurance is for the protection of the seller, not the buyer." )
(3) In any case not within subsection (1) or (2), the risk of loss passes to the buyer on his receipt of the goods if the seller is a merchant; otherwise the risk passes to the buyer on tender of delivery.
(4) The provisions of this section are subject to contrary agreement of the parties and to the provisions of this Article on sale on approval (Section 2-327) and on effect of breach on risk of loss (Section 2-510).
>>
whew, i need a few days to absorb your entire quote. But to the specifics of point (4) above for the time being. The major question in this case is the legitimacy of the subsection in terms of seller disclaimers. Basically, is such a disclaimer enforceable under point (4), even if I bid on an auction that states such terms?
"...The major question in this case is the legitimacy of the subsection in terms of seller disclaimers. Basically, is such a disclaimer enforceable under point (4), even if I bid on an auction that states such terms?..."
/////////////////////////////////////////
In four words: "NO, not on EBAY"
On EBAY, no "disclaimer" is enforceable, if it is contrary to EBAY/PaYPal "policy."
On EBAY, no "contract" is enforceable, if it is contrary to EBAY/PaYPal "policy."
It simply matters not what the b/s agree to. If the buyer decides not to perform, the seller has NO remedy. If the seller is rightfully/wrongfully alleged not to have performed, in general, the buyer's claim will prevail.
......
BUT......
In the real world, even Judge Judy looks to the contract to decide whatsup.
Thus, the heart of my defense of experienced sellers is meant to state that they are not sucking weasel words out of their hindends to trap folks into bad "contracts." THEY simply believe that the terms of their listings form a contract, and really don't know any better until Alice In EBAYland explains the "facts."
................
OTOH....
Once sellers KNOW what the policies are, they have ONLY themselves to blame if they stay put and keep getting shafted.
Folks Who Bite Get Bitten. Folks Who Don't Bite Get Eaten.
<< <i>Just to update everyone the seller shipped the box without his mandatory insurance fee. >>
Which is what the Seller should have done last week.
Glad to hear and please let us know when your package arrives.
So basically my kid won't be able to go to college, but at least I'll have a set where the three most expensive cards are of a player I despise ~ CDsNuts
<< <i>The way the auction reads, I see nothing the seller did wrong.
He offered free shipping. It's clearly stated insurance is a separate charge. It's even in a diff. color text at the bottom. He ask's buyers to wait for the invoice so insurance can be added. You didn't read his entire description. You (the buyer) are partially to blame for this misunderstanding.
I don't think the seller is gouging you at all or trying to make up for ebay/pp fee's or whatever.
If you did a search of ebay and this item came up in your search, then I'm sure you had other similar '92 Bowman wax boxes to choose from to compare the prices and buy and were able to factor in all the costs.
My only complaint with the seller would be if he had this as a BIN or store item, he knew what the final bid/cost would be and he knew what the final insurance amount would cost.
So that amount should be stated in the listing.....somewhere. He's shipping using USPS, insurance would run only $2.60 for up to $200 of coverage. So here is where my only beef would be with the seller. And since it's less than a dollar he might be making off of me as a buyer, I would pay it, and just never buy from them again, and move on.
I don't think the seller loses a charge back as long as they ship the item with delivery confirmation. Insurance or no insurance.
In today's ebay, even sellers that offer free shipping cannot win or have happy customers. Everyone's got a beef! >>
There's a couple of holes in your arguement.
1) The auction does not state Insurance is required. There's a HUGE difference between stating insurance isn't included and stating it's required.
2) He's charging more for insurance than actual cost, which is a violation of eBay's TOS. Additionally, doesn't matter if you think he's gouging or not, it's still a eBay violation. >>
No holes at all. Here's what the bottom of the transaction states (unless the seller has since edited it from the original purchase of the OP).
"Shipping is free for a limited time but does not include insurance. Please wait so we can invoice you for the insurance. There are no exceptions to this. Indiana residents will need to pay 7% sales tax. We only ship to confirmed addresses there are no exceptions. Hawaii and Alaska may be extra. The box in the picture is not the box you will receive. We have a few cases available if needed (we are not looking to discount them). Please wait to be invoiced so the insurance can be put on the invoice."
I read that to mean, shipping is free, but insurance is not and will be added to the total. How hard is that to understand?
If that's a violation of ebay's terms, then thousands of ebay sellers are doing this right now with their listings. Myself as a buyer, I don't have a problem with it. Some ebay rules are okay to be broken in my opinion. If I view them to be fair to both parties involved in the transaction, I have no problem with rule breakers.
How many of you here have taken deals offline? That's also a violation of TOS of ebay, but most all of us here have done this exact thing in order to save some fee's. I have no problem with that either.
Part 2: I did mention above how the seller is overcharging for the insurance. I wouldn't like that as a buyer either. But it amounts to less than a dollar. I'm not about to report a seller to ebay because they overcharged me 85 cents on the ACTUAL insurance cost. Big freaking deal!!! If a buyer doesn't like this, they wouldn't have to complete the transaction and then they could take the road to turning the seller into the ebay police and look to buy their wax box from another vendor.
I agree with leathtech's post later on, that ebay's rules should be evenly applied to ALL SELLERS and not give special treatment to power sellers over the smaller sellers.
The bottomline to me is not to get my undies in a bind over a few measely cents.
**Edited to add, glad you got your box and the deal worked out for you.
One of Shakespeare's plays comes to mind after reading all of this...
Collecting 1970s Topps baseball wax, rack and cello packs, as well as PCGS graded Half Cents, Large Cents, Two Cent pieces and Three Cent Silver pieces.
<< <i>The way the auction reads, I see nothing the seller did wrong.
He offered free shipping. It's clearly stated insurance is a separate charge. It's even in a diff. color text at the bottom. He ask's buyers to wait for the invoice so insurance can be added. You didn't read his entire description. You (the buyer) are partially to blame for this misunderstanding.
I don't think the seller is gouging you at all or trying to make up for ebay/pp fee's or whatever.
If you did a search of ebay and this item came up in your search, then I'm sure you had other similar '92 Bowman wax boxes to choose from to compare the prices and buy and were able to factor in all the costs.
My only complaint with the seller would be if he had this as a BIN or store item, he knew what the final bid/cost would be and he knew what the final insurance amount would cost.
So that amount should be stated in the listing.....somewhere. He's shipping using USPS, insurance would run only $2.60 for up to $200 of coverage. So here is where my only beef would be with the seller. And since it's less than a dollar he might be making off of me as a buyer, I would pay it, and just never buy from them again, and move on.
I don't think the seller loses a charge back as long as they ship the item with delivery confirmation. Insurance or no insurance.
In today's ebay, even sellers that offer free shipping cannot win or have happy customers. Everyone's got a beef! >>
There's a couple of holes in your arguement.
1) The auction does not state Insurance is required. There's a HUGE difference between stating insurance isn't included and stating it's required.
2) He's charging more for insurance than actual cost, which is a violation of eBay's TOS. Additionally, doesn't matter if you think he's gouging or not, it's still a eBay violation. >>
No holes at all. Here's what the bottom of the transaction states (unless the seller has since edited it from the original purchase of the OP).
"Shipping is free for a limited time but does not include insurance. Please wait so we can invoice you for the insurance. There are no exceptions to this. Indiana residents will need to pay 7% sales tax. We only ship to confirmed addresses there are no exceptions. Hawaii and Alaska may be extra. The box in the picture is not the box you will receive. We have a few cases available if needed (we are not looking to discount them). Please wait to be invoiced so the insurance can be put on the invoice."
I read that to mean, shipping is free, but insurance is not and will be added to the total. How hard is that to understand?
If that's a violation of ebay's terms, then thousands of ebay sellers are doing this right now with their listings. Myself as a buyer, I don't have a problem with it. Some ebay rules are okay to be broken in my opinion. If I view them to be fair to both parties involved in the transaction, I have no problem with rule breakers.
How many of you here have taken deals offline? That's also a violation of TOS of ebay, but most all of us here have done this exact thing in order to save some fee's. I have no problem with that either.
Part 2: I did mention above how the seller is overcharging for the insurance. I wouldn't like that as a buyer either. But it amounts to less than a dollar. I'm not about to report a seller to ebay because they overcharged me 85 cents on the ACTUAL insurance cost. Big freaking deal!!! If a buyer doesn't like this, they wouldn't have to complete the transaction and then they could take the road to turning the seller into the ebay police and look to buy their wax box from another vendor.
I agree with leathtech's post later on, that ebay's rules should be evenly applied to ALL SELLERS and not give special treatment to power sellers over the smaller sellers.
The bottomline to me is not to get my undies in a bind over a few measely cents.
**Edited to add, glad you got your box and the deal worked out for you. >>
1) Again, no where in the auction does the Seller state that insurance is required to be paid by the Buyer.
2) Doesn't matter if you don't have a problem with rule breakers, he's still violating eBay's TOS. Two wrongs don't make a right and if you give them an inch, they'll take a mile.
Long story short, you don't care if Sellers break eBay's rules and require additional surcharges just as long as it's a small percentage of the sales price.
So basically my kid won't be able to go to college, but at least I'll have a set where the three most expensive cards are of a player I despise ~ CDsNuts
It says it right here : "Please wait so we can invoice you for the insurance. There are no exceptions to this."
Apparently you missed this.
I interpret(sp) that as the buyer will have to pay for insurance. The seller doesn't state, 'Free insurance' anywhere on the listing or that the seller will pay for the said insurance.
And yes I don't like sellers bending ebay's official rules, but complaining over an 85 cent surcharge on the insurance is not worth anyone's time. Posting about it here is.
All I'm saying is there's so many other sellers to complain about, that this seller didn't seem to be all that bad.
Looks like the buyer got their wax box and the seller waived the insurance cost in the end. So this is done. Hopefully....
Comments
<< <i>Although I can see it each way, it all goes back to the same thing....eBay is stoooooopid
Ebay is creating so many variations of fees, fee schedules, listing discounts, DSR numbers, feedback numbers, etc etc, it sounds like the US tax code being created all over again. >>
Agreed... ebay would be a better place if they would just come up with basic uniform rules for everyone to play by from the small time seller to their largest power seller!
In the real world, not the EBAY/internet world, the rsik of not getting
the merch you ordered and paid for is small."
yup- until it happens!
a 2-coin package shipped to me got lost HERE- in MY TOWN!
I'm at a loss as to how "Shipping & Handling" goes beyond the seller packing it up and getting it to the shipper- unless explicitly stated otherwise.
I've recently was billed $4.60 (on $211 value) and $5.50 ($380 value). Initially I started saying : insurance included in shipping and handling. I'm no longer saying that .
If I, as a buyer, have just made a sweet deal vs any reference price one cares to choose, I'm not quick to throw it away over an insurance charge.
1879-O{Rev}: 1st coin of my "secret set"
Steve
Steve
<< <i>"...I'm at a loss as to how "Shipping & Handling" goes beyond the seller packing it up and getting it to the shipper- unless explicitly stated otherwise..." >>
//////////////////////
That really is at the heart of the friction on the issue between
buyers/sellers on EBAY.
For years on EBAY, the common seller lingo was:
"We cannot be responsible for loss or damage unless buyer
purchases shipping insurance."
These were not weasel words, for the most part. They were
made in good faith by sellers who thought they understood
that UCC did/should apply to EBAY transactions processed
via PayPal and/or credit cards.
Those sellers were simply WRONG.
EBAY, PP - and to a lesser extent the credit card companies -
have simply supplanted their "consumer friendly" policies
for the longstanding tradition of UCC/FOB commerce.
In stranger-to-stranger amateur commerce, they really had
little choice but to do so.
Sellers who hate it, have little choice but to sell elsewhere.
<< <i>
<< <i>"...I'm at a loss as to how "Shipping & Handling" goes beyond the seller packing it up and getting it to the shipper- unless explicitly stated otherwise..." >>
//////////////////////
That really is at the heart of the friction on the issue between
buyers/sellers on EBAY.
For years on EBAY, the common seller lingo was:
"We cannot be responsible for loss or damage unless buyer
purchases shipping insurance."
These were not weasel words, for the most part. They were
made in good faith by sellers who thought they understood
that UCC did/should apply to EBAY transactions processed
via PayPal and/or credit cards.
Those sellers were simply WRONG.
EBAY, PP - and to a lesser extent the credit card companies -
have simply supplanted their "consumer friendly" policies
for the longstanding tradition of UCC/FOB commerce.
In stranger-to-stranger amateur commerce, they really had
little choice but to do so.
Sellers who hate it, have little choice but to sell elsewhere. >>
I still haven't found in the UCC where it says that the buyer has to pay shipping insurance in order for the seller to be responsible
////////////////
That's not what the UCC says.
The UCC relies on the four-corners of the contract between
the buyer and seller. When that fails, the UCC apportionment
notions kick in.
You know Mike, I like you, and we have been having this
chat for more than 6-months.
If you can take the time to read - in context - the sections
clearly indexed in the UCC, you will fully understand the
concept.
http://www.law.cornell.edu/ucc/ucc.table.html
...
begin at about pg.467
http://books.google.com/books?id=LIjPusJPZdcC&pg=PT423&lpg=PT423&dq=uniform+commercial+code+shipping&source=web&ots=fDVHEaF7MU&sig=GKXtmoHPJNTJ681fnroIS_yEf-c&hl=en&sa=X&oi=book_result&resnum=4&ct=result#PPT427,M1
<< <i>"I still haven't found in the UCC where it says that the buyer has to pay shipping insurance in order for the seller to be responsible."
////////////////
That's not what the UCC says.
The UCC relies on the four-corners of the contract between
the buyer and seller. When that fails, the UCC apportionment
notions kick in.
You know Mike, I like you, and we have been having this
chat for more than 6-months.
If you can take the time to read - in context - the sections
clearly indexed in the UCC, you will fully understand the
concept.
http://www.law.cornell.edu/ucc/ucc.table.html
...
begin at about pg.467
http://books.google.com/books?id=LIjPusJPZdcC&pg=PT423&lpg=PT423&dq=uniform+commercial+code+shipping&source=web&ots=fDVHEaF7MU&sig=GKXtmoHPJNTJ681fnroIS_yEf-c&hl=en&sa=X&oi=book_result&resnum=4&ct=result#PPT427,M1 >>
Thanks for your comments.
Reading one at a time. Specifically section 2-509 concerning "Risk of Loss in Absence of Breach".
Subsection 1(b) implies if I read it correctly that if there is a destination that the seller is responsible for getting the item to the destination. Furthermore, my interpretation of this once the item reaches the buyer's destination, responsiblity transfers, but not until then (e.g. once it reaches the buyer's mailbox)
Same as subsection 3 if the seller is a merchant. So, that would mean under subsection 3, if it can be demonstrated that the seller normally sells goods, then this subsection applies, and the seller is responsible for the successful delivery of goods.
Only subsection 1(a) implies otherwise.
However, I would say that a mailing address does qualify as a "destination".
Rule # 2 (Diamondman's rules of buying RULE # 2), The seller is responsible for everything and should also have to pay a 50% sellers premium.
Rule # 3 The Most Important Rule. Diamondman is always right and for this information everyone who reads this must immediately paypal me five dollars to 1 billion dollars)
Rule # 4 (see Rule # 3 (which basically says the bank is always right).
////////////////////
Ditto.
The question that the contract must answer is:
When does title to the merch pass to the buyer?
Most FOB commerce has ALWAYS relied on the notion that
title passes at hand off from seller to carrier, because that
is how the contracts are generally drafted. The contract is
free to be drafted/agreed otherwsie.
THAT means SOMEBODY better insure the thing.
The party obliged to pay for that insurance is spelled out in
the contract. If it is not, the UCC looks for relative
"blame" in case of an uninsured loss. Or, it may allow
that the seller is totally liable.
(An example of "relative blame" comes, for example,
if the seller offered insurance to the buyer, but the
buyer declined the insurance. Conversely, the UCC
may assign total "blame" to the seller, if the seller
failed to offer the insurance option.)
EBAY and PP have adopted the notion cited at 2-509,
without even bothering to look to the contract. Thus,
"delivery confirmation" is considered "proof of receipt,"
when in fact it proves only that the item was delivered
"somewhere." (2-509 and other sections are addressing
"what to do if the contract gives no contrary guidance".)
While EBAY's scheme/interpretation is fast being seen as
the way it should be, it is totally contrary to the concepts
laid out in the UCC regarding reliance on the terms of
the contract. And, is completely different than the way
business has been conducted for centuries.
In other words, the contract prevails under UCC. On EBAY,
the contract means NOTHING, unless it conforms to EBAY
and PP policies.
The UCC starts out assuming that the contract spells out
the duties. It then tells us how to solve problems, IF we
failed to properly "spell out" what our intentions were.
When an EBAY seller says, "Insurance is mandatory,"
or "Insurance is optional," he is making as part of the
propsed "contract" a poorly stated declaration that the
TITLE PASSES when the carrier receives the merch.
The fact that EBAY does not look to the contract, does
not change that fact.
The "contract" is simply void when it does not comport
with EBAY/PP policies.
.............
UCC always looks to the contract FIRST.
...Subject to these provisions and to the provisions of Article 9, title to goods passes from the seller to the buyer in any manner and on any conditions explicitly agreed on by the parties........"
§ 2-401. Passing of Title; Reservation for Security; Limited Application of This Section.
Each provision of this Article with regard to the rights, obligations and remedies of the seller, the buyer, purchasers or other third parties applies irrespective of title to the goods except where the provision refers to such title. Insofar as situations are not covered by the other provisions of this Article and matters concerning title become material the following rules apply:
(1) Title to goods cannot pass under a contract for sale prior to their identification to the contract (Section 2-501),.........Subject to these provisions and to the provisions of Article 9, title to goods passes from the seller to the buyer in any manner and on any conditions explicitly agreed on by the parties.
EBAY and PayPal go directly here, WITHOUT looking at the contract.........
(2) Unless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes performance with reference to the physical delivery of the goods, .............
(a) if the contract requires or authorizes the seller to send the goods to the buyer but does not require the seller to deliver them at destination, title passes to the buyer at the time and place of shipment; but
(b) if the contract requires delivery at destination, title passes on tender there.
(3) Unless otherwise explicitly agreed where delivery is to be made without moving the goods,
(b) if the goods are at the time of contracting already identified and no documents of title are to be delivered, title passes at the time and place of contracting.
(4) A rejection or other refusal by the buyer to receive or retain the goods, whether or not justified, or a justified revocation of acceptance revests title to the goods in the seller. Such revesting occurs by operation of law and is not a "sale".
.................
§ 2-509. Risk of Loss in the Absence of Breach.
(1) Where the contract requires or authorizes the seller to ship the goods by carrier
(a) if it does not require him to deliver them at a particular destination, the risk of loss passes to the buyer when the goods are duly delivered to the carrier even though the shipment is under reservation (Section 2-505); but
(b) if it does require him to deliver them at a particular destination and the goods are there duly tendered while in the possession of the carrier, the risk of loss passes to the buyer when the goods are there duly so tendered as to enable the buyer to take delivery.
( That is why we all often say, "On EBAY, insurance is for the protection of the seller, not the buyer." )
(3) In any case not within subsection (1) or (2), the risk of loss passes to the buyer on his receipt of the goods if the seller is a merchant; otherwise the risk passes to the buyer on tender of delivery.
(4) The provisions of this section are subject to contrary agreement of the parties and to the provisions of this Article on sale on approval (Section 2-327) and on effect of breach on risk of loss (Section 2-510).
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////////////////////////////////////////
And, YES, EBAY and PayPal have decided that "destination" for items under $250,
simply means "a mailbox somewhere."
THAT fact makes it foolish for buyers who actually want to receive their item,
to allow merch to travel uninsured.
The EZ solution to the controversy is for the seller to INSURE all items, using
the proceeds of the sale. Those proceeds are simply increased by his contracted
price, and the buyer thus funds the insurance.
...........
Lost and Misdelivered Items that have DC or SC tickets:
Buyers should note that any unsophisticated seller can defeat an INR PayPal claim,
that is shown as "delivered" by DC or SC.
BUT, if such items have been insured by the carrier, the buyer can file for and be
awarded a money refund for the "lost or misdelivered" item.
That is the instance in which it is most in the interest of a BUYER to be sure his
items have been insured; even if he has to pay for that insurance.
<< <i>
§ 2-509. Risk of Loss in the Absence of Breach.
(1) Where the contract requires or authorizes the seller to ship the goods by carrier
(a) if it does not require him to deliver them at a particular destination, the risk of loss passes to the buyer when the goods are duly delivered to the carrier even though the shipment is under reservation (Section 2-505); but
(b) if it does require him to deliver them at a particular destination and the goods are there duly tendered while in the possession of the carrier, the risk of loss passes to the buyer when the goods are there duly so tendered as to enable the buyer to take delivery.
( That is why we all often say, "On EBAY, insurance is for the protection of the seller, not the buyer." )
(3) In any case not within subsection (1) or (2), the risk of loss passes to the buyer on his receipt of the goods if the seller is a merchant; otherwise the risk passes to the buyer on tender of delivery.
(4) The provisions of this section are subject to contrary agreement of the parties and to the provisions of this Article on sale on approval (Section 2-327) and on effect of breach on risk of loss (Section 2-510).
>>
whew, i need a few days to absorb your entire quote. But to the specifics of point (4) above for the time being. The major question in this case is the legitimacy of the subsection in terms of seller disclaimers. Basically, is such a disclaimer enforceable under point (4), even if I bid on an auction that states such terms?
/////////////////////////////////////////
In four words: "NO, not on EBAY"
On EBAY, no "disclaimer" is enforceable, if it is contrary
to EBAY/PaYPal "policy."
On EBAY, no "contract" is enforceable, if it is contrary
to EBAY/PaYPal "policy."
It simply matters not what the b/s agree to. If the buyer
decides not to perform, the seller has NO remedy. If the
seller is rightfully/wrongfully alleged not to have performed,
in general, the buyer's claim will prevail.
......
BUT......
In the real world, even Judge Judy looks to the contract to
decide whatsup.
Thus, the heart of my defense of experienced sellers is meant to state
that they are not sucking weasel words out of their hindends to trap
folks into bad "contracts." THEY simply believe that the terms of their
listings form a contract, and really don't know any better until Alice In
EBAYland explains the "facts."
................
OTOH....
Once sellers KNOW what the policies are, they have ONLY themselves
to blame if they stay put and keep getting shafted.
<< <i>Just to update everyone the seller shipped the box without his mandatory insurance fee. >>
Which is what the Seller should have done last week.
Glad to hear and please let us know when your package arrives.
<< <i>
<< <i>The way the auction reads, I see nothing the seller did wrong.
He offered free shipping. It's clearly stated insurance is a separate charge. It's even in a diff. color text at the bottom. He ask's buyers to wait for the invoice so insurance can be added. You didn't read his entire description. You (the buyer) are partially to blame for this misunderstanding.
I don't think the seller is gouging you at all or trying to make up for ebay/pp fee's or whatever.
If you did a search of ebay and this item came up in your search, then I'm sure you had other similar '92 Bowman wax boxes to choose from to compare the prices and buy and were able to factor in all the costs.
My only complaint with the seller would be if he had this as a BIN or store item, he knew what the final bid/cost would be and he knew what the final insurance amount would cost.
So that amount should be stated in the listing.....somewhere. He's shipping using USPS, insurance would run only $2.60 for up to $200 of coverage. So here is where my only beef would be with the seller. And since it's less than a dollar he might be making off of me as a buyer, I would pay it, and just never buy from them again, and move on.
I don't think the seller loses a charge back as long as they ship the item with delivery confirmation. Insurance or no insurance.
In today's ebay, even sellers that offer free shipping cannot win or have happy customers. Everyone's got a beef! >>
There's a couple of holes in your arguement.
1) The auction does not state Insurance is required. There's a HUGE difference between stating insurance isn't included and stating it's required.
2) He's charging more for insurance than actual cost, which is a violation of eBay's TOS. Additionally, doesn't matter if you think he's gouging or not, it's still a eBay violation. >>
No holes at all. Here's what the bottom of the transaction states (unless the seller has since edited it from the original purchase of the OP).
"Shipping is free for a limited time but does not include insurance. Please wait so we can invoice you for the insurance. There are no exceptions to this. Indiana residents will need to pay 7% sales tax. We only ship to confirmed addresses there are no exceptions. Hawaii and Alaska may be extra. The box in the picture is not the box you will receive. We have a few cases available if needed (we are not looking to discount them). Please wait to be invoiced so the insurance can be put on the invoice."
I read that to mean, shipping is free, but insurance is not and will be added to the total. How hard is that to understand?
If that's a violation of ebay's terms, then thousands of ebay sellers are doing this right now with their listings. Myself as a buyer, I don't have a problem with it. Some ebay rules are okay to be broken in my opinion. If I view them to be fair to both parties involved in the transaction, I have no problem with rule breakers.
How many of you here have taken deals offline? That's also a violation of TOS of ebay, but most all of us here have done this exact thing in order to save some fee's. I have no problem with that either.
Part 2: I did mention above how the seller is overcharging for the insurance. I wouldn't like that as a buyer either. But it amounts to less than a dollar. I'm not about to report a seller to ebay because they overcharged me 85 cents on the ACTUAL insurance cost. Big freaking deal!!! If a buyer doesn't like this, they wouldn't have to complete the transaction and then they could take the road to turning the seller into the ebay police and look to buy their wax box from another vendor.
I agree with leathtech's post later on, that ebay's rules should be evenly applied to ALL SELLERS and not give special treatment to power sellers over the smaller sellers.
The bottomline to me is not to get my undies in a bind over a few measely cents.
**Edited to add, glad you got your box and the deal worked out for you.
Collecting 1970s Topps baseball wax, rack and cello packs, as well as PCGS graded Half Cents, Large Cents, Two Cent pieces and Three Cent Silver pieces.
<< <i>One of Shakespeare's plays comes to mind after reading all of this... >>
i remember that play from a few years ago - that was one heckuva catch to win the game.
<< <i>
<< <i>
<< <i>The way the auction reads, I see nothing the seller did wrong.
He offered free shipping. It's clearly stated insurance is a separate charge. It's even in a diff. color text at the bottom. He ask's buyers to wait for the invoice so insurance can be added. You didn't read his entire description. You (the buyer) are partially to blame for this misunderstanding.
I don't think the seller is gouging you at all or trying to make up for ebay/pp fee's or whatever.
If you did a search of ebay and this item came up in your search, then I'm sure you had other similar '92 Bowman wax boxes to choose from to compare the prices and buy and were able to factor in all the costs.
My only complaint with the seller would be if he had this as a BIN or store item, he knew what the final bid/cost would be and he knew what the final insurance amount would cost.
So that amount should be stated in the listing.....somewhere. He's shipping using USPS, insurance would run only $2.60 for up to $200 of coverage. So here is where my only beef would be with the seller. And since it's less than a dollar he might be making off of me as a buyer, I would pay it, and just never buy from them again, and move on.
I don't think the seller loses a charge back as long as they ship the item with delivery confirmation. Insurance or no insurance.
In today's ebay, even sellers that offer free shipping cannot win or have happy customers. Everyone's got a beef! >>
There's a couple of holes in your arguement.
1) The auction does not state Insurance is required. There's a HUGE difference between stating insurance isn't included and stating it's required.
2) He's charging more for insurance than actual cost, which is a violation of eBay's TOS. Additionally, doesn't matter if you think he's gouging or not, it's still a eBay violation. >>
No holes at all. Here's what the bottom of the transaction states (unless the seller has since edited it from the original purchase of the OP).
"Shipping is free for a limited time but does not include insurance. Please wait so we can invoice you for the insurance. There are no exceptions to this. Indiana residents will need to pay 7% sales tax. We only ship to confirmed addresses there are no exceptions. Hawaii and Alaska may be extra. The box in the picture is not the box you will receive. We have a few cases available if needed (we are not looking to discount them). Please wait to be invoiced so the insurance can be put on the invoice."
I read that to mean, shipping is free, but insurance is not and will be added to the total. How hard is that to understand?
If that's a violation of ebay's terms, then thousands of ebay sellers are doing this right now with their listings. Myself as a buyer, I don't have a problem with it. Some ebay rules are okay to be broken in my opinion. If I view them to be fair to both parties involved in the transaction, I have no problem with rule breakers.
How many of you here have taken deals offline? That's also a violation of TOS of ebay, but most all of us here have done this exact thing in order to save some fee's. I have no problem with that either.
Part 2: I did mention above how the seller is overcharging for the insurance. I wouldn't like that as a buyer either. But it amounts to less than a dollar. I'm not about to report a seller to ebay because they overcharged me 85 cents on the ACTUAL insurance cost. Big freaking deal!!! If a buyer doesn't like this, they wouldn't have to complete the transaction and then they could take the road to turning the seller into the ebay police and look to buy their wax box from another vendor.
I agree with leathtech's post later on, that ebay's rules should be evenly applied to ALL SELLERS and not give special treatment to power sellers over the smaller sellers.
The bottomline to me is not to get my undies in a bind over a few measely cents.
**Edited to add, glad you got your box and the deal worked out for you. >>
1) Again, no where in the auction does the Seller state that insurance is required to be paid by the Buyer.
2) Doesn't matter if you don't have a problem with rule breakers, he's still violating eBay's TOS. Two wrongs don't make a right and if you give them an inch, they'll take a mile.
Long story short, you don't care if Sellers break eBay's rules and require additional surcharges just as long as it's a small percentage of the sales price.
Apparently you missed this.
I interpret(sp) that as the buyer will have to pay for insurance.
The seller doesn't state, 'Free insurance' anywhere on the listing or that the seller will pay for the said insurance.
And yes I don't like sellers bending ebay's official rules, but complaining over an 85 cent surcharge on the insurance is not worth anyone's time. Posting about it here is.
All I'm saying is there's so many other sellers to complain about, that this seller didn't seem to be all that bad.
Looks like the buyer got their wax box and the seller waived the insurance cost in the end. So this is done. Hopefully....