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In Australia, An Ebay Sale is a Sale
Posted by
Zonk
on Fri Aug 03, 2007 10:53 AM
from the almost-by-definition dept.
from the almost-by-definition dept.
syousef writes "An eBay sale is a sale says an Australian New South Wales State Judge in a case where a man tried to reneg on the Ebay sale of a 1946 World War II Wirraway aircraft. The seller tried to weasel out of the deal because he'd received a separate offer $100,000 greater than the Ebay sale price. The buyer who had bid the reserve price of $150,000 at the last minute took him to court. 'It follows that, in my view, a binding contract was formed between the plaintiff and the defendant and that it should be specifically enforced,' Justice Rein said in his decision." I haven't found anything like this in previous discussions; have there been similar decisions like this handed down in the US, Canada, or Europe?
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Binding contract (Score:4, Insightful)
Re:Binding contract (Score:5, Interesting)
That wouldn't be far wrong with a Wirraway. They were a locally built copy of the North American NA-16 Texan trainer, and were fitted with two Vickers machine guns more as an act of desperation than hope.
RAAF guys flying 8 of them took on more than 100 Japanese aircraft during a raid on Rabaul. The results were pretty much what you'd expect.
Parent
-ian? (Score:5, Funny)
You're missing the point (Score:3, Insightful)
Re:You're missing the point (Score:4, Informative)
Parent
What's more relevant... (Score:5, Insightful)
Good news for sellers....
Auction vs Sale (Score:4, Informative)
On the other hand - whenever there is a super low bid (lets say sum equal to a few dollars) because somebody forgets to set a minimum price, the court usually decides that the auction is a salesman's mistake and voids it.
Does there have to be more precedent? (Score:5, Insightful)
In Australian, An Ebay Sale is a Sale (Score:5, Funny)
"Sort-of" Selling Online - Guns and Other Stuff (Score:5, Interesting)
I find this interesting. If you advertise something for sale, shouldn't you have to sell it? Not everywhere, apparently.
Nearly all the firearms-specific versions of EBay, like gunbroker.com, are filled with offerings of used guns that basically say "Subject to prior sale. I'm putting up this web page but if someone comes in my shop and gives me money, you're out of luck. If I decide I don't like you, you're out of luck." This strikes me as quite unfair and unprofessional.
Even some professional-looking web sites that sell things don't really offer them for sale. If you go to Charles Double Reed looking for a new bassoon [charlesmusic.com] to purchase, you can't just put it in your shopping cart and send them money. Oh, no. The disclaimer ("Clicking the add to my cart button below does not guarantee that this instrument will be available to you.") makes it clear that they get to decide if you're the kind of person they want to do business with.
Yeah, yeah, yeah, I've seen those "No shoes, no shirt, no service" signs. I realize sellers have a right to decide who they want to do business with. But this whole business of offering things for sale and then jerking them back at the last second, seemingly at random, just strikes me as symbolic of a "I don't have to follow any nominal rules of social interaction; I make my own" mindset that seems more and more common these days.
Are people just getting ruder, stupider, and prouder of it?
1946 World War II ? (Score:4, Insightful)
Jolyon
Similar things in Europe (Score:5, Informative)
Re:In Germany it was the other way around (Score:4, Insightful)
Parent
Re:Sale.. (Score:5, Interesting)
What you're talking about (e.g. "No, you can't have another beer") would actually be the pre-sale negotiations. After the money has been handed over in a store and accepted, the sale has been started. So the bartender had better either give you your beer, or have a good reason under contract law for not doing so. (e.g. If a contract is impossible to fulfill, it can often be reversed. For example: If I sold you a beer, but another employee just drew the last pint for another customer, I would return you your money as it's now impossible for me to give you the beer you ordered.)
The big difference between a bar and eBay is that the contract is agreed to by both parties as soon as the auction ends. Thus the money doesn't have to change hands before the contract goes into effect. This is similar to a sit-down restaurant where you order and consume your food prior to paying. As soon as you order and your order is accepted, the contract is in effect. You imply that you agree to pay for your meal when you order.
Parent
Re:Sale.. (Score:4, Insightful)
No, the contract is formed prior to the consumption. The terms of the contract, however, are not completed until the food have been received. (From what I understand, consumption is more or less irrelevant from a legal standpoint. What if you took your food to go?)
Correct. This is a failure by the restaurant to carry through on its responsibilities under the contract. If the restaurant either states or implies a certain level of quality or service, you have every right to expect that level of quality or service. Of course, a restaurant may disagree with you, in which case it would take a judge to decide if the restaurant really did carry out it responsibilities under the contract, or if you were making unreasonable demands upon the restaurant that are not part of the implied contract.
Disclaimer: IANAL, but who the hell really is around here? We have so few lawyers, it's shocking.
Parent
Re:Early cancellation (Score:5, Interesting)
and as a bidder you are at the whims of the seller until the closing price and bid has been accepted then it's a legal and binding contract.
As a seller I can screw with you all I want cancel and relist auctions every time I see you as winning bidder. I have to pay for every relisting though, so it's not free.
Only the idiots that do not know how to use ebay do that crap. But then I also feel that only the dummies that do not know what an auction is use the stupid "reserve" system. I will not bid on any item that has a reserve, if you dont have the balls to put an item out for the price you want for it then dont list it.
Parent
Re:Early cancellation (Score:4, Informative)
Used to not be like this.
I got bit trying to sell something locally on Craigslist (obscure gear and the local market would most likely latch - but ebay was my backup), had a local buyer, but couldn't end the auction.
Parent
Re:Early cancellation (Score:4, Interesting)
and as a bidder you are at the whims of the seller until the closing price and bid has been accepted then it's a legal and binding contract.
As a seller I can screw with you all I want cancel and relist auctions every time I see you as winning bidder. I have to pay for every relisting though, so it's not free.
True, but buyers can retract bids; unethical ones can create a second account and put in an absurdly high bid then simply never pay to cancel out their bid.
There is the second chance offer - something I refuse to accept on principal. I've gotten one immediately after an auction closed because the buyer backed out; but the bidding was in numerous $5 increments by the same unknown bidder until my high bid was beaten. The seller then offered a me a second chance buy immediately after the auction closed. That smelled too much like shill bidding (although I can't prove it)to find my final price and try to sell it at that price; another had a "second item" that they would sell for my high bid.
My rule is I'll only consider ones where the buyer offers it at my highest price before the first non-wining bidder bid; not my final highest bid. Sure I was willing to buy it at that price but do not feel any obligation to help a (possibly) unethical seller get a higher price than then they would from a legitimate auction.
I've only had a couple of those type experiences on eBay; otherwise I've been quite happy as a buyer and seller.
Parent
Re:Early cancellation (Score:4, Interesting)
A day or so later, I got a second-chance auction, to buy it for the $3500, which was my "last bid". I wrote to the seller, explained to him that between my $3200 and $3500 bid, the only bids were from someone who apparently was only trying to ruin the auction, and thus I felt that my $3200 bid is what he should sell it to me for.
He agreed, which surprised me. I thought for sure he would decline, and if he had, I would have reported him and his "buddy" to ebay, using the email I received as some form of evidence, even if not absolute. I picked up the bike that weekend, and I noticed that the seller had given the bidder negative feedback, and the bidder had given negative feedback to the seller. I thought that showed everything was legit -- they wouldn't have dinged each other if they were working w/ each other to try to extract more money.
Parent
Re:Early cancellation (Score:4, Interesting)
report the auction to ebay, it get's pulled and they have to pay the listing price. Ebay does not allow shipping padding as it's ebay fees circumvention. I report listings selling stuff for $0.99 with insane shipping all the time, they usually get taken down in 4-6 hours.
Ebay users are the only defense at these guys making up the difference in shipping.
Parent
Re:Early cancellation (Score:5, Interesting)
It's perfectly legal to do that, as the "sale" hasn't officially happened yet. It's a bit tricky with auctions, since the official sale happens when the auction ends, while in regular retail sales, it happens when money is exchanged. Perhaps the closest analogy happens for say, e-commerce. You buy an item, but the seller decides he doesn't want to sell it to you and cancels your order - it's still legal, as the sale hasn't happened yet. He may even have taken your money, but if said product hasn't left his door, he's under no obligation to complete the sale (of course, he will have to give you a refund or it becomes fraud).
Like the recent Dell case - Dell didn't ship anyone their goods, so they had the power to cancel all their orders (the case was about what remedies could be had in the case - forced arbitration). The older Amazon case, where officially Amazon undercharged people and shipped them product, is something where the consumer's in the right, since the sale has occurred, and a seller has no recourse to recoup the losses from consumers who actually received the inadvertently discounted product.
So your eBay seller decided the auction wasn't going to end the way he wanted, and removed the product from sale before the sale was compelte. In the case of the article, though, the seller didn't cancel the auction, and thus the sale was made.
It's also like that state department trying to get rid of surplus, and putting stuff on eBay to sell. It didn't sell well, but they never cancelled their auction, leading them to have to sell the equipment at cut-rate prices (or face legal ramifications).
Parent
Re:Ultimately, this will be a mistake (Score:5, Informative)
The point of purchase transaction is a special case of contract; the exchange of goods for money itself serves as the contract, as opposed to a written agreement specifying the terms of the contract.
In the case of eBay - according, at least, to the rules promulgated by eBay, and dependent upon a US court upholding them as valid - the contract is in effect upon bid. That's what the bidder agreed to when submitting the bid, and the seller agreed to when offering the item for auction (subject to reserve price). It is no less well-defined than an exchange of money; there's no reason to think it's somehow more ambiguous.
The point is, you can't make contracts only effective upon exchange of money, since the very idea of a contract depends upon its authority over future performance.
Parent
Re:Sale.. (Score:5, Informative)
An auction is a *type* of sale. The auction itself is merely a method of attaining a price. The contract of sale is created on the falling of the auctioneer's hammer, or similar event. If a reserve price is not reached, the goods may be sold to the highest bidder, or withdrawn. Whether or not an online 'auction' falls under the common law definition of an auction is highly dependent upon each country's law...and in this case, I believe the judge says that it does, which might be a departure from existing Australian Common Law.
The interesting thing about this case is that the Judge gave the winner the airplane. Usually, if you win a court case like this, you only get money damages unless the goods are unique or very rare. A World War II Wirraway plane, 1 of 5 left in the world, certainly qualifies for the legal remedy of "specific performance".
Parent
Re:Makes some sense, but .... (Score:4, Interesting)
That's true for all the miscellany whatnot that changes hands on eBay. The article in question here is over 6 figures and for a vintage aircraft of which there are only 5 left in the world. Not a knicknack that dozens of sellers are peddling. This is hardly a whiny loser with a frivolous case.
Parent
Re:Ebay Item (Score:5, Informative)
Parent