eBay buyer and goods not received

[Bill Kammerzell]

That's it, I'm never buying anything which needs to be delivered again! Never shipping to anyone ever again either! All business must be face to face!

Lol! Well, you know.... before the internet that is what we did most all of the time. Outside of the occasional catalog sale, we went to a shop and tried the stuff out and bought or not.

[MC16]

That's it, I'm never buying anything which needs to be delivered again! Never shipping to anyone ever again either! All business must be face to face!

Yeah, but now I can go shopping without pants. When I try to do that in person people throw vegetables at me.

[AndyPanda]

I'm a multi-instrumentalist (just starting to learn mandolin) and most of my instruments were bought back in the 60's-70's from newspaper classified ads (or Big Nickle ads) and driving 50-200 miles to see the instrument (often sold by the time you got there - no cell phones) - face to face and cash. It was more effort than ebay - but you could score fantastic vintage stuff if you watched the ads and didn't mind gambling a 2-3 hour drive on something that might not pan out. Sellers had no easy way of knowing what that old instrument under the bed was worth.

[Jeff Mando]

That's it, I'm never buying anything which needs to be delivered again! Never shipping to anyone ever again either! All business must be face to face!

I know you're joking, Timbofood, but imagine, if you can, just 20 years ago, before we had a functioning internet and most sales were done face to face. That really limited most people's selection. A lot has changed for the better. Of course, selection comes at a price both in terms of scams as well as the "mountain" of instruments destroyed by careless shipping in the last 20 years. Instruments were probably happier when they got to live out their "lives" in their own hometowns!"

[jesserules]

Yeah, 20 years ago Elderly and Mandolin Brothers and a bunch of other places sent out catalogs printed on "paper" and if you saw something you liked the look of you had to send them a "check" by "mail" and they would send you the instrument via "UPS" or somebody. It was rough!

[Jeff Mando]

Yeah, 20 years ago Elderly and Mandolin Brothers and a bunch of other places sent out catalogs printed on "paper" and if you saw something you liked the look of you had to send them a "check" by "mail" and they would send you the instrument via "UPS" or somebody. It was rough!

Yep, one line descriptions with no pictures. If you were serious you made a phone call and asked for Polaroids to be sent. If you liked it, you put it on hold until your check arrived and the instrument could be sent. Nobody got in a hurry back then....

[jesserules]

IN THE FUTURE - we'll remember these days and shake our heads in disbelief at our patience, while waiting for the seller to load that 1923 F-5 into his 3D matterfax so you can print it out on your end & start playing.

But even then - "I sent a payment five minutes ago and it's still not here!!!"

[lonestar_shawn]

I had a package a while back (not music related) that I was watching closely through the tracking system online, and I was home on the day it was supposed to be delivered. I was puzzled because at some point the tracking system was updated to say "delivered," and I never heard the doorbell. I went and looked all around the house and couldn't find a package anywhere. I called the shipping company, and their status showed the package was delivered to the house next door. I went next door and there was my package. I have no idea why they delivered it to the wrong house and then updated the system to reflect that - you would think in that process they would have realized they weren't delivering to the right house. The point is, the status can say "delivered" and that's no guarantee that it was actually delivered to the right place and the buyer got it. I would follow up with the shipping company if you haven't already and see if they have any more details in their system.

[Petrus]

The point is, the status can say "delivered" and that's no guarantee that it was actually delivered to the right place and the buyer got it. I would follow up with the shipping company if you haven't already and see if they have any more details in their system.

No question this can happen. I was just wondering who bears the responsibility in such cases, the sender or the recipient. As the seller, I may have taken out shipping insurance, but that will carry no weight (so to speak) with the shipper if their system shows the item delivered, even if wrongly. Legally, there's not much the seller can do if the tracking system shows an item delivered.

I think the intended recipient is in a much better position to verify what may have gone wrong on the far end, as several examples in this thread have shown. But that's no guarantee the item will actually be found. Still, it's a bad situation for all parties.

[lonestar_shawn]

No question this can happen. I was just wondering who bears the responsibility in such cases, the sender or the recipient. ....

My personal opinion: whoever paid for the shipping is the one responsible. If the seller sold the item for "x number of dollars shipped", the seller chooses the shipper and options, then the seller is responsible. In this case the buyer has no involvement until the item is in their hands. If the buyer pays for shipping separately and they choose the carrier and options, then they are the one responsible.

[Mandoplumb]

My personal opinion: whoever paid for the shipping is the one responsible. If the seller sold the item for "x number of dollars shipped", the seller chooses the shipper and options, then the seller is responsible. In this case the buyer has no involvement until the item is in their hands. If the buyer pays for shipping separately and they choose the carrier and options, then they are the one responsible.

Totally agree. If I order something I expect the seller to make all decisions on getting it to me even if I pay shipping which I don't oppose. I consider my responsibility starts when item is in my hand.

[Stephen Perry]

Problem is that's not the default position under the UCC as far as I can tell. The default is FOB shipper.

In a retail trade this makes sense. Seller hands the item to you or your agent. You walk out with it, drop it, it's your loss. Seller gives custody to your agent, the shipping company, it's out of his control and risk of loss generally passes to you. If the seller were driving the item to your house and handing it to you, then that would be on a level with taking responsibility for loss in shipping.

I highly urge folks to look to terms ahead of time and to understand the UCC governing sales of goods from merchants to you. Pretending that things would be right if they were some different way, or guessing they favor you, or otherwise engaging in fantasy isn't going to help, push come to shove.

Not my personal preferences or anything, so don't ding me. Just learn UCC article 2 a bit and you'll see.

While you're at it, look at bailee liability. I have a case now involving bailee liability with losses of over $20,000. Hinges upon who posted what, who said what, etc. Really want your $2500 or $5000 mandolin stuck in some kind of dispute?

Quick look: https://en.wikipedia.org/wiki/Risk_of_loss

It's actually best to have separate insurance, rather than the non-insurance "offered" by the carrier. The Carmack Amendment preempts a lot of state law, and proves to make claims against carriers a bit problematic. See, e.g., http://corporate.findlaw.com/busines...ility-for.html

So, the default is it's yours when the seller gives it to FedEx or UPS or the Postal Service. When it arrives broken or lost it's your loss. Unless you contract otherwise. If you think the shipper is at fault, you fall under the Carmack Amendment and the carrier will blame the shipper's packaging. The shipper will have a standard system that is good and will state that the shipment was passed to the carrier in suitable condition and properly packed. The shipper is in state X. You are in state Y. Your damage is $3000. How much is your attorney in your state going to charge you? Are you better off suing in state X? How much is that going to cost you? Are you going to rope the carrier in? Better look at the terms there. Might well be an arbitration requirement. I imagine your transactional costs in making this kind of claim usually exceed the value.

Now the carriers are OK once fault is shown. I have had strong tubes snapped by a conveyor system. Tire tread marks on a box. Fork lift tine puncture clean through a box of guitars. Boxes crushed. But usually I see on the way to me headstock issues from whiplash or bows that weren't secured and slammed around, or a box made of thin cardboard. Claims will be denied regardless.

So if' you're buying an expensive thing get some insurance for that shipment. Not just a valuation statement for a carrier.

Does it work? Yes. When I used to carry such insurance I had an $8000 cello replaced. A nice baroque violin bow replaced. And so on.

Please don't assume because it feels right that you know how this stuff works!!!

[Folkmusician.com]

I fully agree with Stephen's post, but will add one thing. Merchant accounts come with a long list of terms that sellers agree to, some of which is shipping terms and arbitration in disputes. For the most part, you are reasonably protected if paying with a credit card. Can the seller come back and sue the buyer after losing a credit card dispute? Maybe, but then we are back to, is it worth it?

Here is an excerpt from my merchant account agreement:

"We will have the final decision-making authority with respect to Claims, including without limitation claims for refunds for purchased items that are filed with us by you or your customers. You will be required to reimburse us for your liability. Your liability will include the full purchase price of the item plus the original shipping cost (and in some cases you may not receive the item back). You will not receive a refund of any fees paid to us."

[Jess L.]

... Seller hands the item to you or your agent. You walk out with it, drop it, it's your loss. Seller gives custody to your agent, the shipping company, it's out of his control and risk of loss generally passes to you. ...

Question:

If the shipping company is *my* agent, then why am I not allowed to select a shipping company of my choosing? I thought the shipping company was the *seller's* agent?

Since so many online sellers FORCE customers to use the SELLER'S choice of shipping company, sometimes without even bothering to tell the customer which one *prior* to placing the order (can be an important distinction if special instructions are needed for delivery with a particular carrier), so how is it then the *customer's* fault when the two-bit unreliable shipping company that was selected by the seller fails to perform the job that the seller essentially hired them to do?

I'm not trying to be argumentative, but it seems like the customer gets screwed both ways: (1) customer very seldom gets to choose a preferred less-troublesome shipping company & instead is forced to use whichever shipping company the seller is already cozy with, and (2) then when something goes wrong with the seller's shipping company, the *customer* is supposedly liable. So the sellers get to have their cake & eat it too, at the expense of the customer, is that how the law is written?

Anyway, I'm not ragging on you, that would be like "shooting the messenger", you're just telling us what the existing laws are, even if the laws seem illogical & backwards to some of us out here in the "customer" category. So, thank you for the legal perspectives on things.

[Mandoplumb]

I understand that the law is more complicated than the way I look at things. Really more complicated than it needs to be. At best in what we are talking about and in it's simplest form the package is the sellers responsibility until the carrier picks it up then it's his responsibility until he presents it to the buyer. In the simplest seniero the only question would be possibly when did the damage occur. That is the spirit of the law, the common sense approach. With our courts and lawyers and people doing anything they can to avoid responsibility for their action or accidents I understand that there will be denials and suits and cost exceeding value, one reason I do as much buisness as I can in person looking the other fellow in the eye. That always eliminate problems and it can't always be done but is best if possible.

[Folkmusician.com]

UPS terms:
https://www.ups.com/media/en/terms_service_us.pdf

“When a shipper declares a value in excess of $100, it does not receive any form of insurance. Shippers desiring cargo insurance, all risk insurance, or another form of insurance should purchase such insurance from a third party.”

Yes, it really says this!

----
– $1,000 per Package for Packages shipped by a Third#Party Retailer if no high#value control log was provided to UPS on tender of the Package;
– $1,000 per Package for a Package processed for shipment prior to tender using a UPS Shipping System and tendered to a UPS driver, unless a UPS high #value shipment summary
is obtained by the Shipper or person tendering the Package and signed by the driver upon tender of the Package;

Say you insure your package for $4000 and do not get a signed High Value Shipment Summary. It is only covered for $1000. (doesn't apply if you ship package at UPS office).

[Stephen Perry]

I understand that the law is more complicated than the way I look at things. Really more complicated than it needs to be. At best in what we are talking about and in it's simplest form the package is the sellers responsibility until the carrier picks it up then it's his responsibility until he presents it to the buyer. In the simplest seniero the only question would be possibly when did the damage occur. That is the spirit of the law, the common sense approach. With our courts and lawyers and people doing anything they can to avoid responsibility for their action or accidents I understand that there will be denials and suits and cost exceeding value, one reason I do as much buisness as I can in person looking the other fellow in the eye. That always eliminate problems and it can't always be done but is best if possible.

I generally call people who refer to "the spirit of the law" as defendants. Dealing in person doesn't eliminate contract law. The UCC isn't complicated, it just has lots of understandable pieces. One of the absolute easiest and simplest pieces is who bears risk of loss in the absence of a contract where goods are shipped. It is completely transparent. The buyer bears the risk of loss when he takes possession after exchanging money and walks out of the store or when the seller delivers the goods to a common carrier.

I KNOW people don't like this, and they object a whole bunch. I've been hearing these objections since the mid 1990s when i started shipping things. It's just the way it is, unless you get an agreement saying otherwise, which will take precedent.

I bring this feature of the law in the US up because it hits people hard every day, including sometimes hitting people here I suspect.

The better technique in dealing is to handle the risk of loss effectively by a) contract or b) insurance or c) counting on the Carmack Amendment.

People really should look this stuff up. It's like warranties. Did you know there's a Federal warranty act? You should. It's common knowledge among those who give and enforce warranties.

This stuff isn't rocket science. It's actually pretty straightforward, and everyone who favors the remedies sees that. The huffing and puffing is from those it doesn't favor. Lest you think I'm biased, I've argued cases on both sides of most of these issues at one point or another. It's just the way it is. Jump in the ocean, swim with sharks. Usually they leave you alone but best to look before you leap and keep your eyes open (I've actually seen a decent sized shark close while swimming, just like I've battled with damaged goods claims. Does happen!!)

[Jeff Mando]

Two thoughts concerning eBay: Regardless of the "law" eBay buyers can 'bypass" the system and complain to eBay/Paypal and they will be heard, and more than likely win. On top of that is the unspoken threat of feedback extortion on the part of the buyer, forcing the seller to take their claim more seriously than often warranted.

[JeffD]

That's it, I'm never buying anything which needs to be delivered again! Never shipping to anyone ever again either! All business must be face to face!

It seems to me if you are not in the business of selling objects to people, and you have an instrument you want to move along, it is MUCH easier to put it on consignment at a local busy music store. Perhaps you don't end up with quite as much money, and you have to be patient, but also you don't worry or hassle. Worth it IMO.

[JeffD]

Please don't assume because it feels right that you know how this stuff works!!!

There is some take away wisdom right there. That should be a tattoo on my forearm.

[Stephen Perry]

Two thoughts concerning eBay: Regardless of the "law" eBay buyers can 'bypass" the system and complain to eBay/Paypal and they will be heard, and more than likely win. On top of that is the unspoken threat of feedback extortion on the part of the buyer, forcing the seller to take their claim more seriously than often warranted.

The various agreements with eBay and PayPal trump the UCC - that's why they are there, with respect to terms they cover.

[Stephen Perry]

It seems to me if you are not in the business of selling objects to people, and you have an instrument you want to move along, it is MUCH easier to put it on consignment at a local busy music store. Perhaps you don't end up with quite as much money, and you have to be patient, but also you don't worry or hassle. Worth it IMO.

Unless you're a merchant, UCC doesn't apply. But you may be a merchant not know it. It's all there in black and white - although attorneys do spend most of their time in that narrow gray zone!

[Mandoplumb]

Mr Perry are you saying that if I buy from you, you ship to me via a third party that you hire and pay to deliver said object to me that third party is operating as MY agent? You have the knowledge in this field so I'm not arguing, that just seems so wrong I'm wanting to make sure I understand you.

[Stephen Perry]

mandoplumb, I act as your agent in arranging for shipping and the risk of loss passes to you upon delivery to a common carrier, in the absence of an agreement to the contrary, under the UCC. If I am a merchant. The shipper is simply acting as a shipper and claims are covered under the Carmack Amendment. That is my understanding, and not legal advise.

It makes sense from the walk in v. order remote perspective, where title changes as soon as the seller gives up the item.

You should look into bailee liability and the seizure of assets for this and that. That will give you nightmares, too.

But places like eBay have default contracts that I understand (nobody is paying me to figure it out) would have priority ahead of the UCC. UCC provides a default backdrop for contracting in goods by merchants.

OK, let me get some backdrop. There's shipping of goods. Someone in Pentaluchi wants to buy something from a firm in Mantanzia, two states away. The parties communicate, there's an invoice or something documenting that there's some kind of contract. The firm in Mantanzia sends over the gizmo via Mockturkle Shipping Co. The gizmo isn't what the feller in Pentaluchi thought he was getting, or it's broken, or there aren't as many units as he thought should be there. Now we could have a situation where there we no rules and everyone argued whatever theory they could. Which is how it feels in some other situations. But this is a regular and common thing, so there's a body of backup rules where the details weren't spelled out. People who are merchants mostly know about them, buyers are presumed to know about them. Simplifies trading a great deal. That's what the UCC is, where merchants are selling things that governs offer, acceptance, etc. Breach. Remedies. It's pretty useful. Should learn it.

Now let's see. Bosco an individual, thinks he's got a Grandolini violin. Describes it as such without conditions. Sells it to Fancy Buyer for $45000. Fancy Buyer wants it insured, so he takes it to Hot Shot Violins in Chicago, who inform him it's really a copy by Pretty Good Fakers, Inc. worth $1500. Fancy Buyer sues Bosco for $45000 less $1500. Fancy Buyer wins and because Bosco is an individual, executes and takes away Bosco's toys. Bosco was a friend of mine and did get hit in the 5 figures. He didn't even realize he was a "merchant" subject to the UCC. And that's a standard remedy.

It's all online. I highly recommend reading about contract law if you're going to sell a bunch of things online or otherwise!

[Mandoplumb]

I don't think I'll buy anything else that has to be shipped. At least if in person I know when it's mine and any dispute can be settled the old-fashion way if I can reach his nose.