Almost got ripped off - sketchy ebay behaviour

BloodEagle

Yes, so, last night I noticed what looked like a nice Les Paul Custom SIlverburst on ebay.co.uk for £1780. - http://www.ebay.co.uk/itm/252703158100?_trksid=p2057872.m2748.l2649&ssPageName=STRK:MEBIDX:IT.  .I'd had a few drinks and was feeling frivolous, so went ahead and clicked on the buy-it-now option for this listing. Cool, I think as I crack open the next bottle of wine, thats a good price for a Silverburst - I'll paypal him the money when he's got back to me with a few more details and when I know everything is legit. I idly decided to see what completed listing were for these guitars, and noticed...the exact same guitar (same pics,same desciption, same everything) had apparently sold in the US just 2 days ago (http://www.ebay.co.uk/itm/1978-Gibson-Les-Paul-Custom-Silverburst-SUPER-CLEAN-w-Original-Manual-Guitar-/182401962424?hash=item2a780111b8:g:OHAAAOSw44BYWeF4). Hmm, sketchy. I emailed the guy in the US - yes, thats his guitar and no, he sold it to someone in the US and hadn't shipped it out yet. Ive emailed the fraudster in the UK and reported him but I dont expect to get any answer. So there you go - glad I didnt just go ahead and pay, though weirdly ebay wont let me cancel the transaction until Ive 'worked it out' with the seller. Pretty stupid. Do I need to do anything else to make sure I have no comeback?

TheOtherDennis

Coo, that was close. An object lesson in not doing your shopping when you've had a few.

boogieman

I wish I had nearly 2 grand to casually drop on a guitar in a pissed moment. 

ICBM

Contact Ebay with the details of the legitimate sale proving the one you 'bought' is a scam, and you shouldn't get any non-paying bidder problems.

Look on the bright side, by 'buying' it and closing the listing you stopped someone else getting ripped off too.

BloodEagle

Yes, going to contact eBay asap to make sure it's all square. Is this kind of thing common in people's experience - it seems so blatant?

ronnyb

I was so pissed last night I couldn't have got on eBay let alone found the buy it now button.

Voxman

ICBM said: Contact Ebay with the details of the legitimate sale proving the one you 'bought' is a scam, and you shouldn't get any non-paying bidder problems.

Good spot BloodEagle & well sussed out!

BTW, whether you make a bid or press buy it now, you are under no legal obligation to complete the sale.  Firstly, and EBay does point this out themselves, EBay facilitates person to person trading and despite it being described as an on-line auction site it does not meet the UK requirements of an auction house.  A key theme is the agency requirements under the UK auction regulations in that EBay at no time legally takes responsibility for or holds on trust the item being auctioned.  All EBay auctions and buy it now therefore fall within the UK's normal contract rules.  The key elements are offer, acceptance, consideration, capacity to contract, and intention to create legal relations.  Until you make a payment there is no consideration, and therefore no contract.  

Further, if the item you're buying is from a retailer/business rather than just an individual (and this includes e.g. E-Bay premium sellers) then distance selling rules apply and even if you have paid for an item you have a 14 day cooling off period in which to cancel the contract and obtain a refund (certain exceptions apply e.g. goods less than £42 in value, holidays, travel tickets etc).  Interestingly, and a lot of people may not be aware of this, if the retailer doesn't tell you that you have 14 days cooling off on a distance selling transaction, you then have up to 12 months to cancel the contract - if they tell you of your rights during that 12 months then you have 14 days from that date (nb. distance selling rules do not apply to private sales).

Fez

@Voxman that info is worth pinning somewhere round here for reference.

Kalimna

Handy that both ads have the serial number blanked out/obscurred-by-fortunately-placed-reflection in exactly the same way.

My next door neighbour once bought an old landrover whilst drunk on eBay. A little harder to hide than a guitar....

Adam

Brize

Voxman said:

All EBay auctions and buy it now therefore fall within the UK's normal contract rules.  The key elements are offer, acceptance, consideration, capacity to contract, and intention to create legal relations.  Until you make a payment there is no consideration, and therefore no contract. 

Is clicking Buy It Now not a promise to pay and therefore as good as consideration?

Brize

On the subject of contract law, I once bought a guitar from a chap and sent him payment by bank transfer. Before he'd had a chance to ship the guitar he got a better offer (£200 more) and tried to renege on the deal. He struggled to get his head around the fact that the deal had been concluded and the guitar was legally mine. As I explained, he was intending to sell *my* guitar and pay me £200 less than he'd received (by way of a refund).

I let him off the hook in the end but it's an interesting example of contract law in practice - a valid contract had been entered into and the seller therefore wasn't at liberty to change his mind after the event.

ICBM

Brize said:

On the subject of contract law, I once bought a guitar from a chap and sent him payment by bank transfer. Before he'd had a chance to ship the guitar he got a better offer (£200 more) and tried to renege on the deal. He struggled to get his head around the fact that the deal had been concluded and the guitar was legally mine. As I explained, he was intending to sell *my* guitar and pay me £200 less than he'd received (by way of a refund).

I let him off the hook in the end but it's an interesting example of contract law in practice - a valid contract had been entered into and the seller therefore wasn't at liberty to change his mind after the event.

Yes, but you had actually paid for it which is very different.

An Ebay auction 'buy it now' or winning bid does not have the same legal status, and even if it did it would be impossible to enforce.

MattBanshee

Brize said:

Voxman said:

All EBay auctions and buy it now therefore fall within the UK's normal contract rules.  The key elements are offer, acceptance, consideration, capacity to contract, and intention to create legal relations.  Until you make a payment there is no consideration, and therefore no contract. 

Is clicking Buy It Now not a promise to pay and therefore as good as consideration?

That was my understanding, from studying somec contract law at uni, many many years ago.

Consideration just means that both/all parties are gaining some sort of benefit from the arrangement. Doesn't have to be physical; legal challenges have proven that payments for questionnaires etc are covered as one party is getting cash and the other is getting insight which is of business value.

Voxman

Brize said:

Voxman said:

All EBay auctions and buy it now therefore fall within the UK's normal contract rules.  The key elements are offer, acceptance, consideration, capacity to contract, and intention to create legal relations.  Until you make a payment there is no consideration, and therefore no contract. 

Is clicking Buy It Now not a promise to pay and therefore as good as consideration?

No.  Consideration must be sufficient but need not be adequate. This means there must be a recognisable interchange of assessable value.  As an example, a council might sell a building for £1 typically because it gets the council out of certain liabilities. Certain types of contracts do not require consideration. These are referred to as ' contracts under seal' and there are special rules for evidencing such arrangements.

MattBanshee

Voxman said:

Brize said:

Voxman said:

All EBay auctions and buy it now therefore fall within the UK's normal contract rules.  The key elements are offer, acceptance, consideration, capacity to contract, and intention to create legal relations.  Until you make a payment there is no consideration, and therefore no contract. 

Is clicking Buy It Now not a promise to pay and therefore as good as consideration?

No.  Consideration must be sufficient but need not be adequate. This means there must be a recognisable interchange of assessable value.  As an example, a council might sell a building for £1. Certain types of contracts do not require consideration. These are referred to as ' contracts under seal' and there are special rules for evidencing such arrangements.

Fundamentally yes, but a legally binding contract needs only an agreement from all parties, not a fully completed transaction. 

Voxman

See here: http://e-lawresources.co.uk/Consideration.php

Brize

I've always been of the understanding that a 'promise to pay' is sufficient for consideration - the most obvious example is the completion of a Direct Debit mandate.

Voxman

MattBanshee said:

Voxman said:

Brize said:

Voxman said:

All EBay auctions and buy it now therefore fall within the UK's normal contract rules.  The key elements are offer, acceptance, consideration, capacity to contract, and intention to create legal relations.  Until you make a payment there is no consideration, and therefore no contract. 

Is clicking Buy It Now not a promise to pay and therefore as good as consideration?

No.  Consideration must be sufficient but need not be adequate. This means there must be a recognisable interchange of assessable value.  As an example, a council might sell a building for £1. Certain types of contracts do not require consideration. These are referred to as ' contracts under seal' and there are special rules for evidencing such arrangements.

Fundamentally yes, but a legally binding contract needs only an agreement from all parties, not a fully completed transaction. 

Yes but only in certain types of transaction where certain formal conditions or regulations must be satisfied. An example is a bonafide auction where a bid is a legally binding promise to complete the transaction. 

Take Gumtree. You receive an email saying someone definitely wants to buy your guitar and asks you not to sell to amyone else and promises to be round with the cash later that day.  They don't turn up...good luck in trying to enforce that promise.

See here: http://www.lawteacher.net/lecture-notes/contract-law/consideration-lecture.php

What is clear is that current legislation was never designed for EBay type scenario's and IMO could benefit from a review and legal clarification. 

The mere fact of agreement alone does not make a contract. Both parties to the contract must provide consideration if they wish to sue on the contract. This means that each side must promise to give or do something for the other. (Note: if a contract is made by deed, then consideration is not needed.)

For example, if one party, A (the promisor) promises to mow the lawn of another, B (the promisee), A's promise will only be enforceable by B as a contract if B has provided consideration. The consideration from B might normally take the form of a payment of money but could consist of some other service to which A might agree. Further, the promise of a money payment or service in the future is just as sufficient a consideration as payment itself or the actual rendering of the service. Thus the promisee has to give something in return for the promise of the promisor in order to convert a bare promise made in his favour into a binding contract.

So, using EBay as an example, if the seller had already provided consideration ie sent you a guitar, for which you had promised to pay £200 at outset, then the bare promise becomes a legally enforceable promise.  But where the buyer has not paid anything, and goods have not changed hands, so there has been no mutual consideration that has moved between promiser & promisee, and thus this is a bare promise only which is not legally enforceable. Hence the Gumtree example. 

usedtobe

Do they still dish out non payment strikes on eBay?

Voxman

usedtobe said:

Do they still dish out non payment strikes on eBay?

Thats an internal matter for Ebay - you probably need to check EBay rules. From what I've read EBay action depends on reasons and frequency.  For example if you communicated openly with the seller that unfortunately something has happened eg you just lost your job etc and no longer have the funds, Ebay is unlikely to take any action, they are not acting as agents, and they have no powers to enforce a sale - remember, they are not a bonafide UK auction .  If however there is a history of non payment with no acceptable reasons, they can do things like suspend your account. 

redrighthand

Voxman said:

So, using EBay as an example, if the seller had already provided consideration ie sent you a guitar, for which you had promised to pay £200 at outset, then the bare promise becomes a legally enforceable promise.  But where the buyer has not paid anything, and goods have not changed hands, so there has been no mutual consideration that has moved between promiser & promisee, and thus this is a bare promise only which is not legally enforceable. Hence the Gumtree example. 

The timing is irrelevant. There is consideration, because the parties have agreed to sell for the agreed amount and pay the agreed amount. It doesn't matter that neither has happened immediately, what's important is that the parties have agreed these events will happen.