In Australia, An Ebay Sale is a Sale 267
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?
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.
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Just FYI, for the next time you buy a car, there is no such law in the U.S. The actual "Lemon Law" only covers new car purchases, and has nothing to do with any "3 day rule". Have you
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Depends on the state. For example, there's a state where anybody over 65 has two weeks to back out of any contract, even a car purchase, as long as the goods can still be returned.
The big 'AS-IS' stickers serve as a warning.
Besides, there's an additional amount of 'buyer beware' at auto auctions. All parties are assumed to be smart enough to know what to look for.
-ian? (Score:5, Funny)
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You're missing the point (Score:3, Insightful)
Re:You're missing the point (Score:4, Informative)
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In Soviet Russian, an eBay Sale is a Sale
Just doesn't really work.
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That's a joke -- as a definition in Australian (the language, aka Strine).
However, as Crocodile Dundee might say: That's not a typo, "a man tried to reneg" is a typo.
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Hate to break up your anti-US sentiment though.
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What's more relevant... (Score:5, Insightful)
Good news for sellers....
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As many of these purchases are very small and shipping is the dominant cost, I just pay the purchase price and advise the seller I have no interest in taking delivery. He can toss it in the trash, or much more likely -
In the case of a larger item that I once won, I negotiated with the 2nd place winner to pay the difference be
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Makes some sense, but .... (Score:2)
eBay constantly warns users that bids are legally binding contracts and so forth. But when it comes to a seller deciding not to sell an item, I think MOST shunned buyers would just be a little disappointed and get on with their lives. When you know you've bid really low for an item, and it looks like you're going to win it anyway - you KNOW the seller wasn't planning on giving it away so inexpensively. You consider it a "stea
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Thats why some sellers set up shill bidding [wikipedia.org]. That way they won't get stuck with too low a price on the sale.
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Shill bidding is an attempt to make buyers think they have competition and make them bid more. That's why it's banned by any decent auction house. Just be upfront and set a reserve price.
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.
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This is not your usual Ebay auction.
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Did I give negative feedback? No. Why not? Because I didn't feel these deals were worth the retaliatory negative feedback. Ebay's feedback policy artificially boosts their average feedback numbers so they can say that overall satisfaction is higher than it really is.
In a few cases I paid and never r
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.
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That's what's known as "consideration". Whenever there is a contract, it should provide some sort of benefit to both parties of the contract. If the contract is heavily lopsided toward one party, the judge may decide that it's unreasonable as no "consideration" is given to the other party.
Since we're talking a
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Since a few years it is legal practice that an offer can be accepted by "mouseclicking" closing a valid contract, which includes ebay.
This is totally offtopic, but I've noticed this with Germans who speak English as their second language. When using "since" in this manner it's expected that there is a specific point of reference in the past, such as "Since a few years ago..." or "Since 2005...". Because "a few years" doesn't indicate a specific point in time, you need to add "ago" to make it specific. When the point of reference is the present, you could also say "For the last few years...".
Aside from that little quirk that I see freq
In Germany it was the other way around (Score:2, Informative)
Re:In Germany it was the other way around (Score:4, Insightful)
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...that's the same way round.
Does there have to be more precedent? (Score:5, Insightful)
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In Australian, An Ebay Sale is a Sale (Score:5, Funny)
The right way to do this (Score:3, Interesting)
I'm not much of a fan of how things are done on eBay, but I do know there are proper ways for sellers to tailor eBay's system a bit more toward to what they want to do.
But there are right ways to use the buying process as well. If Mr. $250,000 was all that into buying the plane, why didn't he simply bid on the auction? He might have even beat the high bidder with a lower price.
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The key is that under the law you cannot simply cancel a completed auction - when the hammer falls, a binding contract between the bidder and seller is created. Barring unusual extenuating circumstances, like the item not being the sellers to sell in the firs
Auto sales too? (Score:3, Informative)
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I imagine that eBay decided it was better to offer VIN lookup services rather than deal with the hassle of bids that don't go through.
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Cars are typically subject to a regulatory regime and so they are often outside the laws of chattels, goods and services. Cars are also not unique, rather they are really the opposite: fungible. As a fungible entity,
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Is the sale binding? (Score:2, Informative)
At least, that's the opinion of US and UK law.
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In the case of the item in the article, the reserve price was met. Therefore the bidder was going into the sale with the understanding that the seller already agreed to sell for the high bid. Reneging after t
In Australia, "reneg" is spelled "renege" (Score:2)
Just kidding. Another stupid typo that a spellcheck would have fixed if the editors could be bothered.
"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?
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Well, yes, but I wouldn't worry too much about it in this context. I'm not a big fan of the notion that free markets can solve all kinds of problems, but one problem they can definitely solve is shitty service. Vendors who annoy their customers have a tendency to go out of business and be replaced by vendors who don't.
That said, if I guy came into my store and wanted to buy a gun and a bassoon, I'd be wary of him, too.
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Sounds like you're taking these policies a bit too personally. Most likely it has nothing to do with which "kind of person they want to do business with." Rather, one of two situations exist.
One, the web site advertises t
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Considering the legalities wrapped around a firearms sale in the USA, this is not terribly surprising. Keep in mind that a sale directly to you from a sel
There's a perfectly valid explanation for this (Score:2)
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Common Sense? (Score:2, Interesting)
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At this point, the dumbest thing the seller did was tell the truth. He should have claimed the aircraft failed an inspection, then realized his 'mistake' and continued the sale with the second buyer. He'd have been free and clear.
In a perfect world, neither side would ever back down fr
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Gazumping (Score:2)
Personally I don't see why anyone should get away with reneging on an auction sale. If you put an item up for auction "just to test the water" you should get what's coming to you. If you wer
1946 World War II ? (Score:4, Insightful)
Jolyon
Similar things in Europe (Score:5, Informative)
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Actually, there was an appeal... and another appeal on top of that.
The first instance court, the Landgericht Münster (~ District Court of Münster) said that the "auction" was not a binding contract whereas the court of appeal, the Oberlandesgericht Hamm (~ Higher District Court of Hamm) judged that it was. This appeal decision was then confirmed by the Bundesgerichtshof (~ Federal Supreme Court).
The bottom line(s):
Confused on the Timeline (Score:3, Interesting)
Coulda . . . (Score:2)
Where is the fraud alert.. (Score:3, Interesting)
Just what were the terms of the offer outside the auction channel?
The court decision may have saved the seller a bundle of money.
Snipers (Score:2)
In Canada... (Score:3, Interesting)
In Poland we had... (Score:2, Insightful)
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.
Early cancellation (Score:3, Interesting)
I watched the seller for awhile to see if he re-listed and tried to sell the same item, as I think he just didn't get the high bids he had hoped for, but after a while said to heck with it. What would the obligations of a seller be in this case?
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.
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.
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Have someone you trust bid 10,000 on your auction.
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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.
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.
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But I agree with his point. If you're not going to sell the item for less than $100, then pu
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Of course, having been bit a few times by minimum bids, most sellers now set shipping/handling at what they REALLY wanted to get for the item, to ensure that they get "paid" regardless.
Personally, I don't look at "reserve not met" auctions, since as you say I want to hav
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.
Re:no Reserve (Score:3, Insightful)
I agree reserve sucks, but I do think their are plenty of other reasons for a reserve.
1) judge demand for a custom product, I may need $500 to build one, but I could mass produce at $200 each, if I get interest lower...
2) local sell, friend is willing to buy my car, set a reserve of $5000 sell it to him for the highest bid if the gain isn't enough to risk ebay fraud.
3) re-listing costs money, if I later decide I would part with it for $4500, but m
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Pointy Horn One. You were denied getting the item at a good price. Ouch.
Pointy Horn Two. Then it won't work if you insist on getting the item anyhow. His excuse was it was broken. So out comes his hammer to pulverize your purchase. Ouch again.
Just to fill out the story. What was the item description? Still findable on eBay (the item number)? Approximately what was your bid?
Thanks,
Jim
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).
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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.
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Ultimately, this will be a mistake (Score:3, Interesting)
This is probably a mistake in the long run, because now we'll start fiddling around with when a contract is in effect. For example, if an auction can only be paid for via PayPal, and the person bids, wins, and then doesn't pay for a few days, is there a sale or not?
If you leave it at "once money changes hands, it's a contract", then it's simple to remember and enforce. It's better for everyone, because it encourages the buy
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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.
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The big difference between a bar and eBay is that the contract is agreed to by both parties as soon as the auction begins.
Your post is a bit confusing so you may already agree with me. But, at stake is whether or not an auction is binding even though money has not changed hands. If I bid on an item at eBay, am I entitled to the item even though the potential seller no longer wants to sell it?
It would take a moron to read eBay's seller agreement as otherwise. If you list an ite
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It would take a moron to read eBay's seller agreement as otherwise. If you list an item on eBay, you'd better be ready to sell it under the terms of the agreement.
True. But the question is, what is the remedy? That's an agreement between you and eBay, presubambly, not you and the bidders. I'm not a lawyer, but this decision seems a bit muddled.
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Have you read the agreement yourself? [ebay.com] Sounds like either you have not read the agreement [ebay.com], or.... (moron?) I'm hoping and praying, in the name of intellectual discussion, that it's the first. It's probably clear by the end of very first sentence, which reads:
When a seller lists an item on eBay, and a buyer bids for and wins that item, the seller and buyer have entered into a contract.
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Sounds like a perfect small claims court case for receiving punitive damages from an idiot bartender. The bartender clearly breached the contract in that case, so he is liable for damages caused by the breach. Personally, I think the judge would slap rather hefty damages on the fellow just for being such an idiot.
Generally you're correct in that most people wouldn't take it to court, bu
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-nB
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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".
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True. Unfortunately, technical language often confuses lawyers, and for the same reason. I think it's a good part of why the legal system deals so poorly with technical issues.
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There are many clauses in both a sale and an auction which allows both parties to legally back out of an agreement. Your example doesn't really apply. If money changed hands at
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eBay is an auction. Not a sale.
That doesn't make a difference. The questions is whether or not it's a contract.
There's five things that make a contract:
Whether this occurs at an online auction, a B&M auction, or at a department store doesn't really matter. What matters is those five points.
At a B&M sales, judges have decided that the offer is when the consumer takes the merchandise to the counter, and the acceptance is when the cashier rings it in. The consideration is th
Bid is same as a sale (Score:2)
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It is extremely difficult to back out of a sale in a live auction, it has always required the agreement of both parties. If one side refuses to honor the agreement to sell or to pay, then it can be settled in court. (which has plenty of precedent in the US). To save money, it's best not to get the lawyers involved because it's extremely clear cut.
eBay
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I don't think I've ever heard a bar utter those words before!!
What kind of scary ass bars do you go to?????
Then again, I live in New Orleans, where you can order a drink to go...when you ask for a 'to go cup' they know you are talking about a plastic cup to take your drink with you. Aaah....civilization they way it should be.
Re:Ebay Item (Score:5, Informative)