Question about trial period on instrument purchase

[Don Christy]

Hi Everyone,

Typically, when you buy an instrument from someone and they give you a trial period the understanding is that if you don't keep it, you pay shipping both ways.

I have a case where the seller didn't disclose a very large crack in the side of a tenor guitar. Actually the description said the sides were crack-free. BTW, this was not through the cafe classifieds.

Since the description claimed something that clearly wasn't true, I thought that the seller should at least cover return shipping (if not both ways). I'll be out $200 due to the seller's mistake.

Am I off base? I'm not going to sling mud, I just want to know what typically happens when the seller makes a mistake like this.

Thanks
Don

[Chip Booth]

I certainly agree that if the seller did not disclose the crack you should have the right to return it or at least demand a break on the price. #As for shipping I also agree it should the seller's responsibility. #The problem is, you may be dealing with someone a bit less than trustworthy or else you would have known about the crack. #That assumes it didn't happen in shipping, which will be difficult at best to prove. #So, it may be hard to get them to agree to cover your shipping, but you should try. #Best of luck http://www.mandolincafe.net/iB_html/non-cgi/emoticons/sad.gif

Chip

[Bill Snyder]

I am of the opinion that you should be on the hook for the shipping if You decide you do not want the mandolin because of personal taste, buyer's remorse or some similar reason.
It would seem to me that if there is undisclosed damage to the instrument the seller should pay not only to ship the mandolin back, but also the original shipping cost.
Good luck getting it though.

[Stephen Perry]

Is the person a merchant?

"Uniform Commercial Code 2-104(1) "Merchant" means a person that deals in goods of the kind or otherwise holds itself out by occupation as having knowledge or skill peculiar to the practices or goods involved in the transaction or to which the knowledge or skill may be attributed by the person's employment of an agent or broker or other intermediary that holds itself out by occupation as having the knowledge or skill."

I am assuming the crack was not described:

"§ 2-313. Express Warranties by Affirmation, Promise, Description, Sample.

(2) Express warranties by the seller to the immediate buyer are created as follows:

(a) Any affirmation of fact or promise made by the seller which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.

(b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.

(3) It is not necessary to the creation of an express warranty that the seller use formal words such as "warrant" or "guarantee" or that the seller have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller's opinion or commendation of the goods does not create a warranty."

If so, then you may reject the item:

"§ 2-601. Buyer's Rights on Improper Delivery.

. . . if the goods or the tender of delivery fail in any respect to conform to the contract, the buyer may

(a) reject the whole;"

Proper rejection is:

"§ 2-602. Manner and Effect of Rightful Rejection.

(1) Rejection of goods must be within a reasonable time after their delivery or tender. It is ineffective unless the buyer seasonably notifies the seller.

(2) Subject to the provisions of the two following sections on rejected goods (Sections 2-603 and 2-604),

(a) after rejection any exercise of ownership by the buyer with respect to any commercial unit is wrongful as against the seller; and

(b) if the buyer has before rejection taken physical possession of goods in which he does not have a security interest under the provisions of this Article (subsection (3) of Section 2-711), he is under a duty after rejection to hold them with reasonable care at the seller's disposition for a time sufficient to permit the seller to remove them; but

© the buyer has no further obligations with regard to goods rightfully rejected.

(3) The seller's rights with respect to goods wrongfully rejected are governed by the provisions of this Article on seller's remedies in general (Section 2-703)."

So. The rejected goods are the seller's. He can arrange to have them picked up or whatever. You can't just throw them out.

Seller hasn't performed, still owes you the goods.

Generally where theres a unique item at issue, the seller needs to give back all the $$$$ including return shipping and the buyer needs to pack up & ship back.

At least that's my understanding.

If it's not a unique item, then other remedies can come into play.

If the item was damaged in shipping, then risk of loss provisions come into play. Can usually tell, but this is often a point of contention.

If the item isn't really cracked (this does happen - people mistake a dark line for a repaired crack), then look up seller's remedies for improper rejection.

Generally, explaining the situation informally and proposing a fix works. If that doesn't, then a certified formal letter of rejection and demand for whatever is reasonable under the circumstance can work. And so on. The usual dispute resolution processes.

[grags]

With regard to trial periods, have you noticed that in a lot of the fine print the dealer charges a 15% restocking fee? On a $2,000 instrument that would be $300. Add shipping to that and its not such a good deal, huh?

[Don Christy]

Thanks everyone.

Steve, thanks for the detail on the UCC.

FWIW, this is a merchant and the crack really is a crack and not the result of shipping damage. I sent him photos and he acknowledged it was not from shipping.

He has said "Sorry, I can't cover the shipping and that is never part of a deal."

He already has my money and likely won't return it until I have returned the guitar. I don't think I have much leverage since he is in CA and I'm in MO. We've been emailing so far. I'll be calling him today to discuss.

Thanks again,
don

[MikeEdgerton]

Steve, that code is part of State Law is it not? If so the OP needs to check the California statute that applies. There may be more relief available there.

[Don Christy]

If it came to it, it would be a small claims issue and I'm in MO. I suspect I'll just have to try and persuade him to do the right thing. If he doesn't, I won't have a lot of options that make sense over $200 in shipping.

Thanks again for all the info and opinions.
Don

[Bill Snyder]

EDIT: The Uniform Commercial Code is an an effort to present a level playing field when dealing state to state so it is similar in MOST states.

[MikeEdgerton]

That's actually not true. They are individual state laws that were adopted by most but not all states and have not stayed uniform on a universal basis. You can read more about it here (http://www.answers.com/topic/uniform-commercial-code?cat=biz-fin). The federal government does not regulate on this level.

[terrierguy]

UCC doesn't vary much state to state. Just subtle differences - at least in the west. Louisiana is of course an exception as they don't recognize the UCC at all.

[MikeEdgerton]

In 232 years of history there isn't a whole lot that every state agreed on http://www.mandolincafe.net/iB_html/non-cgi/emoticons/smile.gif

[Ken Olmstead]

Did you buy it with papypal? I can tell you from my bad selling experience that if a buyer does not like their purchase, they can use the paypal resolution system and just about make any seller say uncle! Results may vary....

[Eddie Sheehy]

I got damaged instrument on Ebarf - the damage was undisclosed. I paid with Paypal. I opened a dispute through Paypal, I got ALL my money back - including shipping both ways. Handy to have the original description and later photos showing the undisclosed damage.....
Similar experience on Amazon with a damaged used Gameboy.....I'll accept money-orders but I pay with Paypal whenever possible.

[Bill Snyder]

Did you buy it with papypal? I can tell you from my bad selling experience that if a buyer does not like their purchase, they can use the paypal resolution system and just about make any seller say uncle! Results may vary....
That's good to hear. I know a few years back when I contacted PayPal about a problem with an ebay transaction all I got was a "try to work it out with the seller" response. The seller eventually delivered most of what he was supposed to so I called it good and quit persuing it.

[Ken Olmstead]

Yeah, paypal puts a "hold" on the disputed funds until the issue is resolved. This can be drawn out for MONTHS! If the seller's papypal account is empty, no worries they will make it negative until resolved. I am sure somewhere in that language that #I clicked "I Agree" said that I would allow my credit card to be charged in such an event as it did not go my way. I eventually offered a discount to the buyer to resolve my issue and it was accepted which was what the guy was after all along. Selling on eBay these days along with accepting paypal is expensive and puts the buyer in pretty much complete control (assuming fair play of course.)

The good news... buying on eBay and paying with paypal gives you a lot of recourse...potentially.

This was one bad experience in about 150 transactions so I guess I should not complain. Accepting paypal is a slick way of quickly receiving collected funds. Just make sure the customer is satisfied before spending anything!

[MikeEdgerton]

Paypal can only put a hold on funds if the funds are in the sellers account. I've never seen them reverse a credit card purchase, I don't even know if they can.

[Ken Olmstead]

They do go as far as taking your paypal account into the negative, I can vouch for that personally. So any transactions flowing into the account will be "held" and purchases I think would not be possible without bringing it positive but I am not sure. They might have to go through a collection process if you lose. Still a major downer from the sellers point of view and certainly a plus from a buying perspective.

[lovethemf5s]

Paypal can only put a hold on funds if the funds are in the sellers account. I've never seen them reverse a credit card purchase, I don't even know if they can.
If you pay with PayPal and pay through a credit card can't your credit card company do a chargeback? I believe that Visa, Discover, etc. say if there is seller non performance they will investigate and refund if it turns out to be in your favor.

[MikeEdgerton]

Again, I don't know if Paypal can do a chargeback. The middle man processing thing becomes a gray area. If someone has some actual experience with Paypal and a creditcard chargeback they should jump in. In essence your credit card transaction is with Paypal and not the buyer.

[Ken Olmstead]

Did you buy it with papypal? I can tell you from my bad selling experience that if a buyer does not like their purchase, they can use the paypal resolution system and just about make any seller say uncle! Results may vary....
That's good to hear. I know a few years back when I contacted PayPal about a problem with an ebay transaction all I got was a "try to work it out with the seller" response. The seller eventually delivered most of what he was supposed to so I called it good and quit persuing it.
Was this before paypal was aquired by eBay? With eBay's bias toward the buyer over the last few years, the combination of owning the prominent online payment company and strengthening the buyers position with the new feedback policies, they have become quite effective in protecting the buyer. Of course I don't mind buyer protection when I am on the buyers side of the transaction. http://www.mandolincafe.net/iB_html/non-cgi/emoticons/biggrin.gif

Charging back a VISA or a checking account is possible if there is some sort of "right of offset" clause in the agreement when you get an account. They are more than just a middleman but really an online bank. The agreement would be the key thing to read to answer the question. Mike your good at the legaleze stuff, maybe you could give it a read if the mood strikes you. http://www.mandolincafe.net/iB_html/non-cgi/emoticons/laugh.gif

[Ken Olmstead]

Here is some of the agreement:

"13.15 Relationship between PayPal Protection Programs and Chargeback Rights. The following information relates to reimbursement for losses from purchases where you used a credit card to fund a PayPal purchase:

Credit card chargeback rights, if they apply, are broader than PayPal Buyer Protection: among other things chargeback rights are not limited to $2,000.00 USD per transaction, can be filed more than 45 days after the transaction, and may cover unsatisfactory items even if they are not Significantly Not as Described.

You can choose to file a Dispute through our Online Dispute Resolution process and escalate the Dispute into a Claim or to exercise your Chargeback rights. However, you cannot pursue both at the same time or seek a double recovery. If you initiate a Dispute through the Online Dispute Resolution process and you then, while the Dispute or Claim is pending, file a Chargeback, PayPal will cancel your Dispute or Claim, and you will have to rely solely on your Chargeback rights.

If you close your Dispute or it is otherwise closed, or if you cancel a Claim or it is denied or results in no refund, you may still be able to pursue Chargeback rights.

If you timely file a Dispute and then escalate it to a Claim, and we do not complete processing of that Claim until after your credit card issuers imposed deadline for filing a Chargeback or after your banks deadline for filing an Electronic Fund Transfer Act dispute, and you recover less than the full amount you would have been entitled to recover from the credit card issuer or the bank, we will reimburse you for the remainder of your loss (minus any amount you have already recovered from the seller or any other Buyer Protection Program). PayPal reserves the right to contest Chargebacks, in accordance with the rules of the applicable card issuer or card association.

Buyers should follow the sellers return policy as stated on their auction or website. If a return policy is not available, the buyer should work directly with the seller to return the item. Buyers may be required to prove that the seller received the returned item and should obtain Viewable Online Proof of Delivery from an approved shipper. Return shipping is at the buyer’s expense unless otherwise agreed to by the seller. "

From reading this, I assume Mike is right in that they will not automatically play with your credit card or accounts.

[Ken Olmstead]

I truely apologize to the OP for making this into a "paypal policy" thread.

After reading more, they can offset your account (make it negative or use other positive paypal balance that are related) but NOT go to your other financial institution accounts without your permission. However, you are liable for there interpretation of the transaction:

10.1 Your Liability. You are responsible for all Reversals, Chargebacks, Claims, fees, fines, penalties and other liability incurred by PayPal, a PayPal User, or a third party caused by or arising out of your breach of this Agreement, and/or your use of the Services. You agree to reimburse PayPal, a User, or a third party for any and all such liability.

OK, I will shut up now and again I am sorry for my part in dragging this so far off topic.

[Stephen Perry]

Send a letter of rejection. Shipping is part of the deal, he didn't perform his part of the deal, so you don't need to perform, which means you don't owe shipping. He owes you the instrument as described. Or he's in breach.

Just explain this and suggest he ask his attorney to help. You don't even need to ship his instrument back to him, just ask him what he would like you to do with his instrument - and ask when he is sending your instrument, the one as described, without a crack.

[CES]

Yeah, sorry for my rant, also...in fact, I think I'll remove/significantly edit it down now...

In your case I personally feel like he should at least cover shipping back (and, really, all shipping charges as the item wasn't as advertised). Sorry, don't have any useful legal advice, but, agree that Steve's suggestion would be a reasonable place to start provided you're willing to follow it through.

Sometimes things happen outside of the seller's control, and sometimes buyers are irrational in their expectations...but, sometimes people are just dishonest; I hope your seller is not the latter and wish you better luck henceforth, especially if your initial investment is substantial to you (I wouldn't have worried so much about the money if my experience happened now, but when I initially bought mine I really had limited funds, and 100+ bucks for repairs in addition to expected set-up costs and a case just wasn't in the budget...)