No more Reserves!

[Philip.Cohen]

A reminder of a little eBay history from before I started using eBay but that many of you may already be aware of:

No more Reserves!
http://pages.ebay.com.au/sellercentral/reserves.html

“On Tuesday 10th August, 2004, eBay.com.au will be removing the ability to use Reserves for all categories except Cars, Motorcycles, Boats and Other Vehicles. The changes will start being implemented at 12:00:01am AEST, Tuesday 10th August, 2004.

“Research has shown that sellers who don't use a Reserve on their listings experience a 34% higher sell-through rate than those sellers using Reserve, so here's your chance to be more successful!*

“Q: Why is eBay.com.au removing Reserves?

“A: There is strong evidence that Reserves restrict the bidding activity on an item. eBay research has shown that sellers who don’t use a Reserve on their listings experience a 34% higher sell-through rate than those sellers using Reserve.* This change is being implemented to help sellers be more successful selling on eBay.com.au.

“Q: If I list an item on another eBay site (other than eBay.com.au), will I be able to use a Reserve?

“A: Yes. You can continue to use Reserves on all other eBay sites except eBay.com.au and eBay.de.

“Q: Why is Australia the only country removing Reserves?

“A: This change is designed to help the small number of sellers in Australia who have previously used Reserves to be more successful. There is strong evidence that Reserves restrict the bidding activity on an item. eBay research has shown that sellers who don’t use a Reserve on their listings experience a 34% higher sell-through rate than those sellers using Reserve.* This is a country specific launch and no other sites are involved at this stage.

“Q: Did eBay.com.au consult the community before making this decision?

“A: Yes. As always, eBay consulted its community members before making the decision to remove Reserves. Specifically, eBay held conference calls with buyers and sellers, held a special Voices session and reached out to numerous members through our boards and events. Overall, the feedback confirmed the benefits of removing Reserve prices and was instrumental in our final decision.”


So you see it’s not as though eBay has only recently become so disingenuous, because they are now so desperate—they have always been a totally disingenuous pack of liars.

[bnwt]

yawn

[Philip.Cohen]

I'm disappointed BNWT, I thought that you would have been able to come up with a more intelligent comment than that. Obviously, you missed the whole point of the post. Sad.

[Rebel*1*]

Good afternoon Philip,

This is an interesting concept actually. Do you know whether the exemptions to this policy also included Rare Aircraft?  i.e. I wonder if the seller in the case below, was prevented from setting a reserve on his auction because of this ebay policy? If he was able to set a reserve, the ensuing legal action may have been avoided.

On the other side of the coin, if he was able to set a reserve as an exempted category,and decided not to, then it's down to Caveat Venditor.  Either way, a reserve on this type of item would seem to be common sense, and any traditional auction house would make that option available, if not recommend it. 

Going, going, gone? Online auctions and Smythe v Thomas [2007] NSWSC 844
21 January 2008
http://www.minterellison.com/public/connect/Internet/Home/Legal+Insights/Newsletters/Previous+Newsletters/A-B-Online+auctions+and+Smythe+v+Thomas

Online auctions are increasingly replacing the humble garage sale as the way for people to trade in ordinary (and occasionally not-so-ordinary) items. In the recent case of Smythe v Thomas [2007] NSWSC 844, the New South Wales Supreme Court weighed in on the contractual validity of an online auction, in the context of a not-so-ordinary item.

Background

In August 2006 Thomas, the defendant, listed a Wirraway Australian Warbird aircraft on eBay. Thomas set a minimum bid of $150,000 with an auction duration of 10 days. The plaintiff, Smythe, placed a bid on the aircraft in accordance with eBay rules, in the amount of $150,000. However, following the expiry of the auction period, Thomas decided that he did not wish to proceed with the sale and was entitled to withdraw because no binding contract had been formed between the parties.

Smythe v Thomas is the first Australian case to address online auctions and to consider whether an online auction is akin to a traditional auction, and further, whether an online auction is capable of forming a contract between vendor and purchaser.

Summary of claims

Smythe claimed that as a result of Thomas being the highest bidder and his bid equalling the minimum bid set by Thomas, a contract for the sale of the aircraft was entered into between himself and Thomas.

Thomas disputed that a contract had been entered into between the parties. He claimed that the only contracts on foot were between himself and eBay and between eBay and Smythe, and that those parallel agreements did not amount to a contract between the parties. While Thomas acknowledged that both parties had accepted eBay's terms and conditions, he contended that the mutual acceptance of those terms and conditions did not create a contract between Thomas and Smythe. Alternatively, Thomas argued that listing the goods on eBay was akin to placing a classified advert in a newspaper, and was thus merely an ‘invitation to treat’ (as opposed to an offer that had been accepted by Thomas).

Summary of decision

The New South Wales Supreme Court (Rein AJ) held that a binding contract existed between the parties and that this contract should be enforced. Rein AJ made a number of observations in relation to the issue of online auctions.

First, His Honour observed that when a purchaser and vendor agree to accept the terms and conditions of an online auction service, the parties accept 'that the online auction will have features that are both similar and different to auctions conducted in other forums'. The decision was held that an online auction is a 'species of auction'.

Second, His Honour stated that, in an eBay auction, there exists not only contracts between eBay and each of the purchaser and vendor. Rather, as in a traditional auction, contracts exist between:

  * the vendor and eBay;
    * the vendor and purchaser; and
    * eBay and the purchaser,

and that these contractual arrangements 'can sit together' to create a binding contract of sale.

The judge held that placing the item for sale on eBay did not constitute merely an invitation to treat, but was rather an offer to sell the aircraft.

Impact of the decision

The decision categorises online auctions, such as those conducted on eBay, as a species of auction. Moreover, in an online auction, a binding contract between the vendor and purchaser may come into existence. By affirming the contractual validity of 'peer to peer' online auctions, the decision in Smythe v Thomas greatly enhances the ability of purchasers and vendors to enforce sale of goods contracts made in an online auction environment and neutralises an argument that could have been problematic for a multi-million dollar industry.

International developments

France's regulatory authority, the Council of Sales, has recently issued proceedings against eBay arguing that eBay should be held to the same strict standards as French auction houses. eBay has asserted that it should not be considered an auction house, but rather should be considered a mere intermediary in the sales process, as it has no role in the negotiation of contracts and it is customers who decide whether or not to put items up for sale.   

What is most interesting in the summary of the above Australian case, is the finding that:
"as in a traditional auction, contracts exist between  * the vendor and eBay;* the vendor and purchaser; and* eBay and the purchaser"

However, when it comes to the French Regulatory Authority arguing that Ebay should be accountable to its strict auction standards, eBay assert that they are not an auction house but, a mere intermediary in the sales process with no role in the negotiation of their own legally binding contracts ? Interesting.

Moral: In the absence of any reserve price, Don't list rare items, antiques or collectibles on Ebay for anything less than the price you wish to achieve for them, and make sure to include any waivers, or conditions, including the option for 'offers' (so as to make the best use of Ebay's over priced fees). 

[Philip.Cohen]

If the item was listed on eBay Motors then a reserve could have been applied. But that is not the point of this case. When you list an item for sale on eBay it is clear that you enter into a contract with eBay to the effect that if the item "sells" then a legally binding contract is created between the seller and the highest bidder, assuming any reserve was reached.

I think that in this case the seller's problem was that he afterwards realized that he could get even more for the item from someone else and he then refused to honor the contract of sale entered into on eBay, hence the court case, which simply confirmed that a sale on eBay indeed creates a legally enforceable contract.

Of course, eBay will always claim that they are no more than a "notice board" when it suits their purpose, but the fact remains when you sign onto eBay you accept their terms which are enforceable so long as those terms are not found by a court to be unconscionable or voidable for some other lawful reason.

[Rebel*1*]

but the fact remains when you sign onto eBay you accept their terms which are enforceable so long as those terms are not found by a court to be unconscionable or voidable for some other lawful reason.

Doesn't really matter when the initial UA constitutes an unfair contract.  Check out the unfair contract terms thread, where I go into this further.  This seller either way was cheated out of 100,000, or more, so I doubt he'd agree that Ebay make the risks and limitations associated with its service, either unambiguous or clearly stated in any way....

[Philip.Cohen]

There is nothing unfair about the matter. When you put something up for sale at auction, and the item is subsequently sold, as was the case with this tem, then, as is the case with any traditional auction, a legally enforceable contract of sale is created between the buyer and the seller. It's as simple at that. There is no unfairness involved. If you enter into such a contract the seller cannot then afterwards decide to withdrawn from that contract simply because someone else has offered them a greater consideration, no matter how much greater is that consideration. That is what the law of contract is all about: certainty—for both parties.

[Rebel*1*]

Well then I guess Philip on this occasion, it is YOU who has missed the point.  Ebay refute any involvement in these contracts, unlike traditional auction houses who have had to abide by regulation of their dealings with buyers and sellers for years.  I note you don't mind accusing others of 'missing the point' though.  Such is life.

[Philip.Cohen]

Without meaning to be offensive, you have no idea of what you are talking about! You are partially right only in that the auctioneer is not a party to the contract between the seller and the buyer; all the auctioneer does is introduce the seller to the buyer, as does any selling agent; but the fact is, at sale by auction, when a seller puts his item up for sale and a buyer bids, both have, by doing so, agreed to the terms of the auctioneer that at the conclusion of the auction, the seller and the highest bidder will be bound by a legally enforceable contract of sale. The law of contract applies equally to both parties to the contract.

This has nothing to do with whether or not other conditions in the eBay UA may or may not be unfair. We are here talking about the very basic law of contract as it applies to sale of goods by auction. You have just quoted a case where the court has said that indeed an enforceable contract between the seller and the buyer existed. If you still don’t understand the basics of contract law, get yourself a copy of “Contract Law for Dummies” and read it.

[Rebel*1*]

Perhaps you might follow your own advice, hey not meaning to be 'offensive',(I guess in your mind, that waiver excuses you from being overbearing and offensive but nonetheless) quite frankly I believe YOU have no idea what YOU are talking about and perhaps YOU should read contracts for dummies yourself.  Try the new version.  Law is not static, it's fluid and changing as we speak.  Ebay's contract of sale is underpinned by both the sellers terms and Ebay's UA, which of course, might be drastically altered with these 'Unfair consumer contract laws' wakey wakey, stop being so overbearing and try listening to the opinions of others.  There you go, maybe a different opinion might sneak into your solo diatribe, not meaning to be offensive or anything you realise.?

[Philip.Cohen]

I don’t believe it. You have just quoted the case (Smythe v Thomas [2007] NSWSC 844) where the court said that as a consequence of the eBay auction in question an enforceable contract was created between the seller and buyer, and at the same time you appear to be saying that this court does not know what it is talking about and that the seller was actually cheated of $100,000.

Can I simply repeat what I said before. You have no idea of what you are talking about. You definitely should get a copy of “Contract Law for Dummies”, and read it; it’s written in simple enough terms that even a child should be able to acquire an understanding of the basics of the law of contract.

[*smee*]

I'm disappointed BNWT, I thought that you would have been able to come up with a more intelligent comment than that. Obviously, you missed the whole point of the post. Sad.

Without meaning to be offensive, you have no idea of what you are talking about! You are partially right only in that the auctioneer is not a party to the contract between the seller and the buyer; all the auctioneer does is introduce the seller to the buyer, as does any selling agent; but the fact is, at sale by auction, when a seller puts his item up for sale and a buyer bids, both have, by doing so, agreed to the terms of the auctioneer that at the conclusion of the auction, the seller and the highest bidder will be bound by a legally enforceable contract of sale. The law of contract applies equally to both parties to the contract.

This has nothing to do with whether or not other conditions in the eBay UA may or may not be unfair. We are here talking about the very basic law of contract as it applies to sale of goods by auction. You have just quoted a case where the court has said that indeed an enforceable contract between the seller and the buyer existed. If you still don’t understand the basics of contract law, get yourself a copy of “Contract Law for Dummies” and read it.

I don’t believe it. You have just quoted the case (Smythe v Thomas [2007] NSWSC 844) where the court said that as a consequence of the eBay auction in question an enforceable contract was created between the seller and buyer, and at the same time you appear to be saying that this court does not know what it is talking about and that the seller was actually cheated of $100,000.

Can I simply repeat what I said before. You have no idea of what you are talking about. You definitely should get a copy of “Contract Law for Dummies”, and read it; it’s written in simple enough terms that even a child should be able to acquire an understanding of the basics of the law of contract.

yet again !!!

[bnwt]

yawn

[*smee*]

  excellent comeback tags

[*Brum6y*]

It still amazes me that some people do not take matters seriously when they buy or sell on eBay. Simply with the superficial expectations in the UA you would expect some influence of conscience and a moral obligation to complete a sale.


However....

I do see one basis for caution here - and that is, if the validity and enforceability of the UA is compromised (such as being declared as 'unfair' in part or whole) then any subsequent application of the said UA may be compromised as well.

To claim a 'contract of sale' exists when it is derived from an unfair arrangement is simply dangerous.  The only guarantees in such a case is the opportunity to pay for your lawyers' holiday on the Riviera.

[Philip.Cohen]

Regardless of any questions of “fairness” that there undoubtedly are with some aspects of the eBay UA, and that those aspects may well ultimately be found by a court to be unenforceable, that will have no affect on the fact that a sale by auction on eBay is a sale by auction and all users should understand that they have contracted with eBay to the effect that at the end of each auction an enforceable contract is created between the seller and the highest bidder.

That is how the auction process works. That is how all auctions work. For confirmation that the basic law of contract applies to eBay auctions see the quoted case Smythe v Thomas [2007] NSWSC 844 initially quoted by the person who apparently thinks that this case does not apply. There is nothing unfair about this situation, it is the basis of all auction sales. If any of you don’t understand that or don’t want to understand that, so be it.

[*Brum6y*]

Philip ... there is a simple reason for concern here.

The 'contract' is generated out of the relationship between the parties AS SPECIFIED IN THE UA.

If the basis for a contract is compromised, then so is the contract.



The aforementioned auction of the aircraft did not assess whether the UA itself was considered an 'unfair contract' - it would have been taken at face value.  Also, I believe there would not have been any interest in challenging that aspect of the UA, since the focus was on the independence of the buyer's and the seller's agreements, not whether the content was unfair.


Besides, the unfair contract legislation has only just come in - and wouldn't have been a factor back then.  But it is now.

[Philip.Cohen]

Hi Brum6y,

Frankly, I don’t understand why we are all having this conversation about this particular aspect of the law of contract. The contract that is created between the seller and the buyer has nothing to do with those many petty aspects of the eBay UA that undoubtedly may be otherwise unfair to eBay users.

The unfair contract legislation may well void a contract if so much of that contract is so unfair that a court deems it to be unfair in its primary purpose and therefore the whole of it may be set aside. Otherwise the court will only find such part of the contract that is unfair may be remedied/invalidated.

If one or several clauses in a contract are found to be unfair but those clauses do not have a material affect on the gist of the contract, the whole contract is unlikely to be voided, only those parts that are unfair may be—otherwise the very basis of the universal law of contract may be brought into question and the whole world of commerce may be brought to a standstill.

There is absolutely nothing unfair about those parts of the eBay UA whereby users, if they list an item for sale or become the highest bidder on an eBay auction they, agree that at the end of the auction (at the “fall of the hammer”) they are deemed to have entered into a binding contract for the sale/purchase of the item. The sale by auction mechanism simply cannot work without such an agreement.

Your acceptance of those parts of eBay’s UA when you join is sufficient to indicate that you have agreed to those very basic terms that are central to the operation of any auction. And, as you would undoubtedly be aware, a legally enforceable contract does not even have to be in writing, it’s simply easier to prove and enforce if it is in writing.

Again, there is nothing unfair about the circumstances of the sale by auction on eBay of the Wirraway plane. The only thing unfair about that matter was the seller’s refusal to honor the contract that he was deemed to have entered into with the buyer, and the court ultimately remedied that.

If anyone thinks the new unfair contract legislation is not going to turn the whole world of commerce on its head then I think they are dreaming; I doubt it is even intended to interfere with contracts between equal parties. My understanding is that it’s primary purpose is to keep unscrupulous commercial organizations, such as eBay, from abusing their positions of power to place patently unfair terms and conditions on otherwise powerless consumers. It’s not going to redefine the very basics of the law of contract which are based historically upon English common law and are universally accepted throughout the civilized world.

I don’t have any doubt that this new legislation is not intended to have any affect on matters such as were argued in the Wirraway plane case, that is, it’s never going to have any affect on that absolutely necessary basic “contract”, the enforceable agreement to sell/buy, that is created between the seller and buyer at an eBay auction, or any other auction, or indeed any other form of sale on eBay.

But, if others want to think otherwise, so be it.

[*Brum6y*]

I don't disagree with you, Philip ... but (personally) I take a cautious stance when it comes to new legislation - until it's been tested in the courts.  The spirit of the law doesn't always accurately translate into the letter of the law.

The fundamentals would seem assured, but I am still amazed at the adeptness of some lawyers in their gymnastic abilities with the law.

[Roo]

Just popping in to give my view....

That Ebay sale with the plane....it was for mega bucks...so the courts would look at it more closely than they would, for say.....an auction for a used set of jumper leads.

The people involved in that sale also seemed to have money to burn....so an expensive court case probably didn't even phase them.

If the item in question was just something worth $5...I think the courts would look at it as being a waste of their time.  The judge would get shirty...because he had better things to attend to...and the claim would most likely get kicked out of court because it seemed petty.

From what I have seen...money talks.....and if you have a good Solicitor....and can afford to pay him....you do stand a good chance of winning almost any claim.

[Philip.Cohen]

I won’t bother further arguing the merits or otherwise of the nonsense that some of you espouse; I will simply quote from the draft of “Australian Consumer Law: A guide to unfair contract terms [2010]” which I have no doubt all you who profess to know so much about the matter have already downloaded and perused, but if you have not, it is available in PDF form from:
http://www.accc.gov.au/content/item.phtml?itemId=920435&nodeId=764c8b9ceb822be00d2286840f322866&FELAFELEN=UCT%20guide%E2%80%94Consultation%20draft.pdf

In particular, I draw your attention to the following abstract from page 8 of this document:

3. Are there any terms & standard form consumer contracts that are exempt?
The quick answer
The unfair contract terms provisions do NOT apply to the following terms of a standard form consumer contract:
• terms that define the main subject matter of a consumer contract; …

The ‘main subject matter’ of the contract effectively refers to the particular type of good, service, land, financial service or financial product that the contract is for.

The whole basis of a sale by auction (or any other form of sale on eBay) is premised on the fact that the parties that wish to participate have beforehand agreed, via acceptance of the eBay UA, that at the end of the auction the seller and the buyer will be bound by a contract of sale. Such matter is a ‘main subject matter’ of the eBay UA contract and there is nothing unfair about it, and as such it will not be affected by any finding about any other clauses that may well be considered unfair.

And after you all have absorbed the gist of the above-mentioned document you really should go and get a primer on the basics of contract law. It’s something that everyone should have some understanding of, otherwise you may one day get burnt by your ignorance of such matters—as did the seller of the Wirraway. It cost him $100,000 plus his and I assume the plaintiff’s costs to learn such a lesson about the law of contract.

Roo, Sure, it’s a matter of how much is involved. It’s also a matter of geography. If the defaulting party is accessible the aggrieved party can easily pursue a matter up to $10,000 with a default summons through the local court; costs about $70.

[bnwt]

why are you talking about  Contract Law 2010 ?


your gripe is about an eBay ruling that occurred in 2004

[Philip.Cohen]

And clearly you read nothing, or did not understand, any of the nonsense that was posted, in response to the OP where the discussion was changed by another to one about unfairness of ebay's UA and the matter of an aircraft sale that has been settled perfectly logically by the court but which some of you apparently don't agree with or think that the new unfair contracts law may in future have a bearing on. Sheesh!

[Rebel*1*]

So, would it surprise you to know that many reading your condescending replies, might consider your opinion nonsense ?.    

The case in question was used as an example of Caveat Venditor, especially when it involves rare and expensive collectibles and especially since the option for setting a reserve is not available, as it is in traditional auctions.  I seriously doubt that the seller deliberately listed the item for less than it was worth (or what he wanted for it).  But if he had the option of a 'reserve' price, it would have saved him a lot of grief.  Most people understand the concept of setting a 'reserve' on valuable items, and indeed, most reputable auction houses would advise their clients of the legal ramifications of not doing so.  On the contrary, Ebay removed the option altogether.

The other point it demonstrates is that Ebay is indeed considered a 'Species' of Auction and that various legally binding contracts generated by the provision of Ebay's service, are no different to that of a traditional auction house.  So far so good.  

So, should Ebay be as accountable as a traditional auction house then?  According to the French Regulators they should.  They must be idiots too right?

Those looking further than their nose, might see the contradiction in all this, with consideration to the fact that whenever Ebay is being challenged, (particularly over any duty of care or accountability), they are NOT an auction house, and have no role in the negotiation of the same contracts that legally bind the other parties.  But when it comes to disputes between the contracted parties, it's caveat venditor vs caveat emptor.  A battle of the fittest.  Reminds me of 'Gladiator'  We who are about to be ripped off, Salute you!!!

Let me ask you, are traditional auction houses devoid of all accountability in the provision of their service Philip?  Do they get to argue no accountability if literally thousands of their consumers are ripped off? Well if not, then I'd suggest to you that Ebay need to be accountable to those same standards, whether here, in France or Timbucktoo.

Furthermore, the section of the draft guidelines that you quoted, deals with TERMS that are excluded not contracts, and nobody is arguing that the main subject matter of Ebay's UA is the Provision of an Auction service.  Well, nobody but Ebay of course, whenever THEY are asked to account for their own contractual obligations or duty of care.  

I didn't mention a contract between equals, I'm referring to a standard form 'take it or leave it' style contract such as Ebay's UA.   Even so, on what basis is the contract between buyer and seller a contract of equals on ebay, when the terms of that contract are set out by one party only, with the other having no apparent recourse outside of a court room if the contract is breached?  Who exactly is ensuring that the terms of these contracts of sale are fair, or legal from the outset, and that both parties are informed of their obligations and risks??

[Rebel*1*]

I'll give you an example of everyday breach of contract on ebay.  It's rife, but it's nickel and dime, so it never gets reported to regulators, and ebay does nothing. (See Comslaw 2006 Going Going Gone !! consumer fraud study for background on this specific unmitigated issue).     

I purchased a CD recently, it was 'used', and described as 'Very Good' As New condition.  The item was paid for, and then I received an email from the seller (after I'd paid and after he'd already posted it) saying that the CD should have been described as 'Good'.  Clearly it's scratched, and that should have been stated in the item description or advised before payment was made, but at the very least, before he sent it.    Deceptive and misleading?

Has he broken the contract?  Well of course ! He has misled me, whether deliberately or not, and the product is not of marketable quality if it's scratched.  What rights do I have?  Well, under Ebay's UA, I have none, and when you consider that it is this document that forms part of the terms of the contract of sale, (that I am apparently bound to) then why shouldn't I have recourse against the parties imposing and enforcing it?

It's not worth lodging a fair trade dispute over, because the amount is less than the effort involved.  Basically, I'm at the mercy of the seller who misled me. 

So, which of the contracted parties are the most vulnerable in this type of arrangement Philip?  And if you think it isn't wide spread, guess again.
 
The precedent study of Consumer Fraud on Ebay (Going Going Gone- Comslaw 2006) was provided to, and quoted by ABC in their feature regarding Ebay Consumer Fraud in 2008, to demonstrate how widespread and long standing the problem was, and how little Ebay have done about it.   

It was the very same year that 4000 customers of EBS, and over 3-4000 other consumers of DDD, LI and two other sellers, were ripped off.  Every single one of those consumers reportedly had to fight hammer and tong to get Ebay to address their own contractual obligations and duty of care in those E-Commerce massacres. 

It was only media pressure generated by thousands of outraged consumers, that got them to acknowledge their responsibility and set up one of many 'one of' funds.  And here we have yet another example recently with over 2000 ripped off consumers. 

Do you imagine for a second that a traditional auction house would be allowed to get away with that level of consumer carnage Philip? Contract or no contract?   So who's missing the point?

[bnwt]

I doubt if people reading his replies consider them nonsense

I doubt if any one actually reads the rambling manifestos of venom and bile

[Rebel*1*]

Well it seems contradictory that the author of this OP can us a 6 year old policy change, to make this rather obvious point: 

"So you see it’s not as though eBay has only recently become so disingenuous, because they are now so desperate—they have always been a totally disingenuous pack of liars"

Like Der?

Yet when someone presents an example of just how disingenuous the whole Ebay 'wag the dog' illusion actually is, (using a topical issue, and publicly documented examples), it's berated as if it is less relevant?.  Is it a case of the snake biting its own tail?  Eventually it will eat its own head.

It's no wonder others don't feel inclined to comment on these very important consumer protection issues when they see others being berated for offering a more 'up to date' example of Ebays disingenuous flip flopping.

All anyone expects from ebay, whether buyer or seller, is an even playing field, a fair contract that includes recourse/dispute resolution, accountability, and at least some differentiation between the rights and obligations of buyers vs sellers.  Not much to ask in consideration of those same parties being held to a legally binding contract. There must be a right to recourse when one or the other party breaches the contract, and that INCLUDES ebay.

Unfortunately though Philip, People like you are defeated before you start, and you criticise all others who try to make the slightest difference.  Thank God you weren't around during the rebellion (or not that I noticed) to suck all motivation out of the many thousands of people who fought hard to bring Ebay to heel.   The old RT was ablaze with consumer revolt.  People who believed they had rights and whose conscience had been so offended by the conduct of Ebay the terrible, that they came out in their thousands. What a party. Inspiring to see so many stand in solidarity against Ebay, and we won that battle.  Both Stage 2, and eventually Stage 1, were successfully rolled back.  Dare to dream eh?

[Philip.Cohen]

Rebel*1*,

Let’s first set the stage. I agree that eBay is a most unscrupulous organization. You won’t find anyone more vocally critical of eBay than me (try googling “Philip Cohen” or “PhilipCohen”). I can assure you I have been criticizing eBay here and on eBay forums and all other forums around the world and have the scars to prove it. If you want my views on eBay an introduction thereto can be found at
http://www.auctionbytes.com/forum/phpBB/viewtopic.php?p=6502877

But … Clearly, you are allowing your emotions to carry you away. There is no place for emotions in the law. You appear not to be able to absorb the quite logical concepts involved in the law of contract and therefore have no understanding of what you are talking about, certainly you have no understanding of how that law of contract applies to sale by auction (or similar), and I am starting to repeat myself ad nauseam which is becoming irritating, however I will have just one more attempt:

The Wirraway matter:

Still, you are debating a matter that has nothing to do with “unfair contracts or terms”. The Wirraway auction did have an effective “reserve”, the $150,000 starting price. And as I have stated previously, if it had been possible to list the item in eBay Motors (and I don’t know whether or not it could have been—it was after all a “motor”) a traditional form of reserve could have been set. The fact is, no one with any sense should put up for sale an item of such value without knowing what they are doing. If the seller had had any sense he would have simply cancelled the sale (as many pro sellers do) before the auction ended if he was not, at the time, happy with the single $150,000 bid. He did not do that but let the auction run its course and the result was a legally binding contract for the sale of the item. The fact that he apparently afterwards became aware that someone else was prepared to pay $250,000 for the item is immaterial: he no longer had a legal interest in the good as he has already contracted to sell the item for $150,000. That is the law of contract; it has nothing to do with eBay per se, or the fact that otherwise some of eBay’s other petty terms may otherwise be unfair.

It’s got less to do with it being an auction than it has to do with the fact that a legally binding contract was entered into at the end of the auction sale. The same contractual situation would have been created had the buyer bought the item BIN.

A traditional auction house is no more accountable than eBay is: a traditional auction house is also not a party to the contract of sale; like eBay, the traditional auction house only introduces the seller to the buyer, as does any other selling agent; the contract of sale is created between the buyer and the seller.

eBay is a most unscrupulous organization, and the major auction houses may well be as unscrupulous in some aspects of the conducting of auctions, but that does not alter the fact that at the “fall of the hammer” or the end of the auction (if not cancelled beforehand) in eBay’s case, a legally binding contract for the sale of the good has been entered into. I see no contradiction at all in this matter, nor any unfairness. It is you that are trying to interpret matters to suit your view, and I can assure you that you are not going to succeed.

And there you go again: “they are NOT an auction house, and have no role in the negotiation of the same contracts that legally bind the other parties”. Even if your statement was correct about them not being an “auction house”, which is arguable, it has no affect on the fact that the seller had agreed that at the end of the “auction” he would be bound to sell to the highest bidder. That’s all there is to it. And for confirmation of that you had best read the Wirraway case again, and again, and again. After all, the creation of such a contractual obligation is fundamental to the auction process. Do you not yet understand that?

And again, I will tell you that the Wirraway seller was not “ripped off”. Had the court found that there was any fraud involved in the creation of the contract I have no doubt that the court would have found in the seller’s favour. That many eBay users, buyers and sellers, may feel that they are “ripped off” by eBay (or PayPal), has nothing to do with the contract of sale so created at the end of an eBay auction.

And again, the section I previously quoted is what it is all about. That bit makes it clear that even in such a “consumer contract”, as is the eBay UA, the “main subject matter” of the contract will not be affected by the unfair contacts and terms provisions.

Could I suggest, once again, that instead of you waffling on about matters that you clearly still have no logical understanding of, you download a copy of those ACL guidelines and peruse it, in particular, pages 3, 5, 7 and 21.

As far as “not substantially as described” is concerned, PayPal is now totally biased towards buyers. Unfortunately, there will always be the unscrupulous seller who think that sight unseen they can forget to mention a material defect: I had one recently myself and unfortunately I had picked it up and paid cash for it otherwise I would have taken advantage of PayPal’s buyer-biased mediation process and got my money back. But these irritations have nothing to do with the fact that at the fall of the hammer a contract is created between the seller and the buyer; any problems with the goods have to be sorted out afterwards.

I agree, I agree, I agree, there are many opportunities for sellers to “rip off” buyers and that is irritating, and buying stuff sight unseen on the internet, from whoever, is always going to entail some risk, but all that has nothing to do with the initial contract of sale that is created at the end of an auction.

As I have already commented, you won’t find a more vocal critic of eBay than me. But you have to be realistic, you cannot compare eBay to a traditional auction house: they are chalk and cheese. To think that eBay could ever involve themselves in the detail of every sale is simple unrealistic. It is a matter of buyer or seller, more so buyer, beware.

And, even so, the unfairness or otherwise of any eBay UA condition can still only be so deemed ultimately by court action instigated by the ACCC (or an individual); no amount of debate here is going to change that.

Read those ACL guidelines.

There is always a right of recourse: the courts.

BNWT, Nice to see that you are less tired now and have gotten past the “Yawn” stage of debate; when then are you going to contribute something meaningful thereto? Of course, that is a rhetorical question, I don’t expect you to even read this matter as there are way too many words.

[Rebel*1*]

I don't really care what you imagine your notoriety to entail, others are not quite so attention seeking obviously,or abusive, and have done much more to bring equity to ebay and tame the beast.  I won't name them (even though many on this forum know them well from the rebellion) out of respect to their modesty by comparison to your own trumpet blowing.  It's a cast of thousands.  So, Exactly what have you achieved or changed in all this so called notoriety you lay claim to?.  

Perhaps bnwt is yawning because it becomes a bit like a broken record with the volume turned up. (hang on is that white noise I'm hearing?)   Of course, bnwt was part of the rebellion way back when.  In a peaceful non cooperation fashion, and a bush telegraph type of fashion.   IN fact, his contribution as the 'daily mail' since the rebellion and beyond, has probably been more valued by many than anything you have ever done in the big picture.  What a contribution right?  *big pat on the back to bnwt*.  Of course, some ignore the 'history' and consistent contribution of others, and its ultimate value to the bigger picture.

To think that eBay could ever involve themselves in the detail of every sale is simple unrealistic. It is a matter of buyer or seller, more so buyer, beware.

What rubbish.  To think that ebay might actually set the standard of their UA and their policies around being fair and equitable and making sellers and themselves accountable to consumer protection standards and TPA, is far from unrealistic.  To think that they might even make some effort in their 'innovative disruptions' to include some thought to improving customer service, fraud prevention and dispute resolution is also not unrealistic.  

Every other commercial entity on the net and off the net is expected to adhere to those standards, and indeed, most strive to provide excellent service to keep customers coming back.  I buy a huge amount from Chaos music online because they demonstrate time and again that they are reliable and customer focused.  Gift vouchers, regular sales, free postage.  Boy have they got the formula right.  

Can't say the same for ebay, the prospect of which makes me cringe by comparison as a consumer.  They strive for nothing other than Consumer frustration and netwide/worldwide angst.   Imagine how much better ebay would be if their consumers felt secure and protected and thereby sang their praises for being such a 'good corporate citizen' towards their consumers?  Can they not see the power of this type of consumer loyalty by comparison?  Clearly you can't

And how would they achieve that kind of credibility?.  Well, 100pt Aust Post Verification of sellers in particular, would go a long way towards sorting out the men from the boys and making all ebay sellers accountable and accessible to our laws, whether consumer protection related, crime prevention/investigation related, or civil damages related.  

You still don't get the point though.  

There is obviously a need to make sure that the terms that go together to form a binding contract, are lawful and fair and that the goods are of merchantable quality.  If not, there has to be some recourse, other than civil claim as the only remedy.  It's NOT within the reach of the ordinary person.   Have you ever been involved in a civil claim ?  It turns the sane insane, it renders the rational irrational.  You have no idea. Why would anyone voluntarily enter into such a process at their own expense?  

Nevertheless, Just stick your head back in the sand.  If it were up to you we'd all be stuck back in the 50's.  There is a term for those who berate and abuse in the course of trying to make their point, clearly mistaking condescension and sarcasm for intelligence?  God, who does that remind me of? lmao   Don't worry it will come to me.

[Roo]

My sore so far...15/love..lol

Good post rebel...

[Philip.Cohen]

I think I will leave it at that. You clearly have no idea of what I am talking about nor what you are talking about.

[Roo]

And he smashes his raquet into the court shouting..."YOU CAN'T BE SERIOUS!!!!"

Here ya go Phil....you may need these..lol...

[*Yibida*]

Phil .... just an observation... you can make a statement and get a point across without belittling peoples views....

However.... if people choose not to agree with you... just let them believe what they deem to be correct in their eyes...

Theirs lots of room on this forum for many views without having to conform to any one belief....

[Philip.Cohen]

If you open both eyes you will see that I did not start the snide comments.

And one more thing. I don’t know why everyone is getting so excited about this new national legislation. It appears to me that the people who are habitually most affected by eBay’s convoluted UA are going to get any joy at all out of it.

It clearly states that “A contract between businesses is excluded from the scope of the provisions …”. Unless I am mistaken, those who make a business out of selling on eBay are indeed businesses and are therefore specifically excluded.

The provisions of this legislation apply only to “consumer contracts in a standard form” and "consumer contracts" are defined (paraphrased) as covering “the supply of goods or services to an individual whose acquisition of the goods, services … is wholly or predominantly for personal, domestic or household use or consumption. … (However, such [business] agreements may be governed by other legislation or by the common law.)”

It appears that professional traders are going to have to look to “other legislation” or “the common law” for relief from eBay’s machinations. I would appear that more submissions need to be made to the government if small business is to get any protection from unscrupulous organizations such as eBay.

But then, what would I know about it, I’ve only read the Guide thereto.

[*Yibida*]

"If you open both eyes you will see that I did not start the snide comments."

Ok Phil point taken... but it takes a minimum of two to play... if one stops throwing the ball the contest stops...

you don't have to keep throwing the ball.... just hide it from time to time...

[*FluffyDuckee*]

[Philip.Cohen]

If those many small “businesses” are to get any relief from eBay’s convoluted UA, then you people who have an interest therein are going to have to keep up a constant stream of submissions to the ACCC and your local federal member re the matter; otherwise this new legislation appears to me to be no threat to eBay’s convoluted UA at all.

Indeed this legislation appears not to apply to anyone that is selling, as a business or otherwise, but only to buyers. So, the whole thing appears pointless as buyers on eBay, with respect to sale by auction, may be affected only by their own possible ignorance of the very basic law of contract involved in such transactions and which is clearly not affected by this new legislation anyway.

And, one more point. If anyone is relying on the ACCC to fix any other problems with eBay then they are probably going to be disappointed. The only reason the ACCC moved against eBay with regard to PayPal was because of the weight of the overwhelming number of submission that they got re that matter. Somehow, they simply could not ignore the matter. Otherwise they would all still be asleep at their desks, as they are regarding the matter of eBay’s blatant and criminal facilitation of shill bidding fraud on unsuspecting buyers—and which they still refuse to address.

There, see, I’ve changed the subject …

[Philip.Cohen]

On reflection, I will retract one bit of my last statement. It is the service provided by eBay to an occasional (non-business) seller that is what is being “consumed” by that non-business seller and so such non-business sellers may well benefit from this new legislation but it, proscriptively, won’t have any affect on the obvious “main subject matter” of the UA contract which is the agreement to enter into a binding contract of sale with the buyer at the end of an auction, or any other form of sale, on eBay.

In all the circumstances I see this new legislation as being of absolutely no value to the very many small traders (businesses) who make a living trading on eBay and who are the most often adversely affected by eBay’s convoluted UA.

[Philip.Cohen]

There is a simple fix to the problem. Instead of excluding, from the provisions of the legislation, contracts between “businesses”, on the presumption that businesses enter into such contracts full well knowing what they are doing, the legislation should give the court the ability to make findings of unfairness whenever the court is satisfied that the relative power of the supplier so outweighs that of the “consumer”—business or otherwise—so that the consumer is powerless to do anything about any perceived unfairness. Is that the case now? Not from my reading of the guidelines.

[Rebel*1*]

It clearly states that “A contract between businesses is excluded from the scope of the provisions …”. Unless I am mistaken, those who make a business out of selling on eBay are indeed businesses and are therefore specifically excluded.

FFS, really?

What a revelation eh? Go read this thread Philip,and let us know when you've caught up.  

http://www.ozroundtable.com/index.php?topic=2521.0

BTW, I believe it was you who started berating me with the old 'Don't mean to offend, but you don't know what you are talking about routine'?.

So, given that you didn't bother to read the actual draft guidelines, and since you can't be bothered respecting the views of those who have read it, do I get to say that 'You don't know what YOU are talking about?'

Here's a novel suggestion, why don't you try asking other people WHY they hold the views they do, before berating them because they differ from yours?

For instance, whilst berating me as a village idiot on this thread, the same distinction you have only just managed to finally stumble over, had already been made on the above thread:

Specifically:
Under Ebay’s present User Agreement, there has never been a Clear differentiation made between Consumer and Trader.  Nonetheless, neither party has any rights or recourse under Ebay’s present Unfair UA.      This new legislation goes half way to making that distinction in the real world, but what Ebay does with it might be a different kettle of fish. (Kicking and Screaming as they prefer no doubt).

One thing seems clear however, businesses Won’t be covered by the provisions of this new legislation. So Ebay’s UA will be redundant to them from July onwards, if the Ebay UA is included under these new Unfair consumer contract laws.

The UCT provisions will apply only to standard form consumer contracts—for example, contracts for the supply of goods or services to an individual whose acquisition is wholly or predominantly for personal, domestic or household use or consumption.

I further state that;

As for the Business sellers, well, it's high time that they campaigned to ACCC for a fair Commercial Service Agreement with Ebay.  

The problem traders have, is that the Ebay contract isn't a commercial one and it reserves the right to pull the rug out from under them in a heart beat, reversing all liability and waiving any obligation as a 'Venue'.

All caught up now ?

[Philip.Cohen]

Now, let's get this straight. I posted a cynical comment about the reasons eBay gave for their removal of the right of sellers to set a reserve price, except on eBay Motors auctions.

To which one other apparently very tired poster replied with “Yawn”.

You then also replied with a comment which seemed to imply that in your view the seller of the Wirraway aircraft was “cheated” out of $100,000—because he could not set a reserve? Was that not the gist of your initial post? And I replied that that was nonsense, and it still is nonsense.

You then responded with many posts about how the new ACL was going to affect users on eBay, and how it would apparently affect such matters as the Wirraway case. Have I got it wrong again? And I replied that this new legislation would have no bearing whatsoever on such cases. And I still say that.

I don’t have to read your thread to “catch up”, anymore than you have to read my thread; I have read the ACL Guidelines.

The fact that there is no distinction between business and personal users in the eBay UA is an irrelevance. Why should they differentiate between professional traders and occasional sellers—there is no point for them to so differentiate: all are simply fee-paying sellers.

And, this new legislation does nothing to eBay—I see no pain at all for eBay here. The fact is, as you agree, the people who most need protection from eBay’s arbitrary UA—businesses—are not covered. The occasional seller (who may well be covered) is never going to be concerned enough to worry about anything that may be unfair therein, unless you are again thinking of the Wirraway man, and I will tell you again that the new legislation will have no affect on such cases.

“One thing seems clear however, businesses won’t be covered by the provisions of this new legislation. So Ebay’s UA will be redundant to them from July onwards, if the Ebay UA is included under these new Unfair consumer contract laws.”

I have no idea what this statement means: it’s nonsensical. How will eBay’s UA be redundant to businesses? “… if the eBay UA is included …”. Have we not already decided that the UA is not covered, with respect to businesses, by this new legislation? And, the only entity that can make a decision about unfairness is the court, albeit that the ACCC could threaten court action if eBay did not concur; but eBay does not have to concur as they are effectively very little touched by this legislation.

We all agree that eBay is a most unscrupulous organization and undoubtedly their UA is biased towards themselves, and every one would hope that, if the legislation covered businesses, the ACCC would do its job and put pressure on eBay to modify its UA. But the fact is businesses are not covered.

“eBay’s contract isn’t a commercial one …” No idea what that is supposed to mean. eBay’s UA is indeed a contractual arrangement that you agree to when you join eBay and unless a court finds otherwise, it is a binding arrangement. If you don’t agree to their UA you, as a business, have the choice to not join. That, unfortunately, is the brutality of the matter, and will remain so unless legislators can be convinced that a broader view should be taken of such UA contracts.

What then are you saying now? Are you still saying that this new legislation will have a bearing on such as the Wirraway case? If that is the case then I will simply say that you are mistaken. Or were you all along saying that indeed this new legislation is going to be of little real value to anyone, buyers or sellers, using eBay? If that is the case, and indeed you agree that this legislation will give eBay little, if any, pain at all,  then what has this ridiculous discussion been all about?

That’s enough for me; I am finished going around in circles; but by all means do have the last (disjointed) say.

[Rebel*1*]

Look Philip, "Lets get THIS straight". You're so intent on ramming your views down everybody's throat you're impossible to discuss anything with.   You leave no room for discussion, and I'm not going to go back through, or reply to a veritable barrage of condescending words, to feed your argumentative nature.
  
I'm sure others are not having such a hard time understanding the concepts presented, just you.  I think Brumby summed it up beautifully, but you didn't bother considering his point of view either, so, why bother.  There is apparently no room in your world for the views of others, (irrespective of how naive or informed they may be) and I have no interest in being abused in the course of any discussion.  Must be exhausting being such 'know it all'.

As for the seller in question, whatever I think about it, I'm not interested in discussing my views with you any further.  As I said, abuse and condescension is not my idea of discussion or debate.  I don't think you are actually able to conduct yourself with any amount of respect or courtesy in a discussion Philip. Not if this is any example.   So have fun

[*Brum6y*]

You then also replied with a comment which seemed to imply that in your view the seller of the Wirraway aircraft was “cheated” out of $100,000

"seemed to imply" Even you have noticed this was not an outright statement.  In fact you have used two indirect terms when referencing that interpretation.

—because he could not set a reserve?

I didn't get that idea at all.

Was that not the gist of your initial post?

I would not have said so

And I replied that that was nonsense, and it still is nonsense.

Considering the uncertainty upon which this interpretation was founded, riding into battle on such a matter would, to me, be the equivalent of mounting a pool pony and brandishing a noodle.


Philip, you and I have clashed before - but in all fairness to you, I cannot deny your energy and your steadfastness on those issues in which you invest your time. In fact, it is from those very encounters that I have gleaned an appreciation of those efforts. However, in gaining that appreciation I have also made some observations.

(To anybody reading this - do not think for a minute that I presume to 'know' Philip Cohen. I have only met him through forum posts and anything I say here is just my own personal comment.)

There is only one point that I think has any relevance and that is your focus on a topic, Philip, is laser-like. Within the confines of that beam, there are few issues, but when the broader scene is examined under floodlight by others you remain within that beam. This, I believe, is the fundamental basis for degenerative discussion development, as we have seen above.


On a personal point, where I as a buyer "enter into a contract" with a seller for the purchase of an item, it is well known that, should difficulties arise, eBay will not hesitate to intervene and provide remedy as they see fit. Since this is a power that they DO exercise, I cannot see how it can be excluded from the "main subject matter" - since the provisions for remedy are an important part of any contract.  How long do you think a contract would last if it explicitly stated that if the buyer had a problem, then bad luck...?

I would challenge the definition of "main subject matter" if this inequality was of no consequence.

Even if your statement was correct about them not being an “auction house”, which is arguable, it has no affect on the fact that the seller had agreed that at the end of the “auction” he would be bound to sell to the highest bidder. That’s all there is to it.

Perhaps, in principle.  In practice, it's never that simple.

[Rebel*1*]

How long do you think a contract would last if it explicitly stated that if the buyer had a problem, then bad luck...?

*Spits Coffee all over Screen* lmao.  It already does !!, in so many words, and I mean SO MANY words.  lol  and they've gotten away with it so far.   That's the whole point really.

However, I'm fully expecting they'll argue blue in the face that Ebay consumers aren't really consumers and that their contract is not really standard form, but fully negotiated with all of us?

As for the main subject matter of the contract, there is still no dispute over that, or whether it excuses Ebay from Fair Trading laws as it has already been tested and defined as follows:

s107 of the Fair Trading Act 1999 defines a "fair trading dispute" as a "dispute or claim arising between a purchaser or possible purchaser of goods or services and a supplier or possible supplier of goods or services in relation to a supply or possible supply of goods or services". "purchaser" is defined in s3 of the Act as "the person to whom the goods or services have been or are to be supplied".It is not necessary for there to be any financial consideration.

It is clear that the Respondent in hosting online auctions is providing a service - the provision of a venue for the auction - to both sellers and buyers.  I am therefore satisfied that there is a fair trading dispute between the parties which falls within the provisions of s107 of the Act.. Evagora v Ebay

In terms of their duty of care and contract waivers in that instance it was noted that:

I am not satisfied that the releases set out in the User Agreement defeat any claim the Applicant has under the Fair Trading Act 1999.

The Respondent has an obligation to its consumers to ensure that any limitations associated with the use of its online auction facility are clearly notified to prospective users. It is not sufficient to have a 12 page User Agreement with numerous clickable links that in many respects contradicts the clear representations contained on the homepage and the "bidding" page.  Where limits apply they must be clearly spelt out Evagora v Ebay

The UA is now something like 18 pages with around 150 links just within the main contract itself, not to mention links within links within links after that.  It's a bit like the never ending story.   

[*Brum6y*]

I did say explicitly ... as in ONE sentence - not as the eBay UA presents it which, when "interpreted" with the aid of marketing and "customer service" operators would give the clear impression that you can "Trust us".  When you get a whiff of what happens when things go south, that has all the comfort of a used car salesman saying the same thing.

The problem there being the fact that the "written" UA is the principle exhibit - and that can couch the most self-serving terms in language too convoluted for the average Joe to follow and/or in a structure too complex to follow correctly.  The multi-level link organisation of the UA may be a feature useful on the net - but it does not represent a contract you can read from start to finish - like any paper document - without accurately keeping note of the context of EACH LEVEL you link from.

In fact, I would like make this point:  EBay do not permit the use of images within listings that contain text forming part or all of the terms of sale (I daresay this would also apply to item descriptions).  The cynics might say that eBay don't like the idea of communication on which they can't do a text-based scan and there might be a grain of truth in that, but the reason I feel it is particularly valid is that image content can be changed, with no recordable event to signify this. Thus, the terms a buyer agreed to at the time of making their bid, may have been changed by the seller by altering the image.

This, I agree, is totally unacceptable.

Yet this is very much what eBay are doing in their UA - a link to another document, which can be altered without any recordable event, save that of their diligence in notifying members when they do... and how can we be sure every change is notified...?  "Trust us!" I hear.....?


.... but, then, surely they wouldn't consider making changes without notification...... would they?

[Rebel*1*]

Na, they wouldn't do that would they? It would be unconscionable lol. Just like breach of contract right under the noses of our regulators would be unconscionable wouldn't it? But not unimaginable for Ebay.
 
In the Stage 1 notification, they BREACHED the contract of all Pre September '07 members, after having exempted them in writing from having to abide by the new UA, (requiring all new sellers to offer paypal).  We had no way to argue against it, because of course it was 'Take it or Leave It' then, (for buyer and seller alike with NO differentiation made) as it is now with any new imposition they think up.
 
But in my view it was quite blatant.  In fact a veritable poster boy example of why Ebay's UA should not be exempted from this legislation, and why Sellers need to have a different commercially driven UA, that sets out their obligations to consumers and the law, and their rights as commercial consumers under Ebay's dominant 'take it or leave it' contract. An even playing field if you like, instead of the ski slope it presently is.
 
I say that because it was mainly sellers in the Stage 1 group who were affected because they couldn't sell any more without offering Paypal (at their expense of course).  Buyers still had the option to use whatever payment method they so chose, but Ebay bombarded them with negative propaganda about consumer safety, scaring them into using the most troublesome, and expensive payment method on the net.  They also had a full page Paypal screen in checkout for 'non paypal customers', with our names already filled in, saying, join paypal, blurb blurb it's easy.  Meanwhile at the bottom of the checkout screen was a tiny widdle modest link saying 'other payment methods'. ever so slightly IN YOUR FACE, misusing market power 'behind the scenes'?.
 
At the time, those of us in the stage one targeted group screamed blue murder to ACCC and Chris Bowen. (There must have been thousands of us in that group given that ebay deliberately targeted us via Stage 1 of the notification).    Even then, it was highlighted that it was outside of the jurisdiction of ACCC, but that it resembled a breach of consumer contract.  Problem is, we didn't have laws regarding unfair consumer contracts back then, in any other state but Victoria, so none of us had any recourse.  Exit hobby/collector sellers with no recourse.  (Those who were the founding niche market when ebay first began) but now redefined and looked down upon as 'boot sale sellers'.
 
It was recommended that those affected take civil legal action?  Like what?  Consumers & hobby sellers have to take legal action just to get something as basic as recourse in the absence of any negotiation or apparent liability on Ebay's part when they breach our contracts?   And yet this same (ever changing) UA forms part of the terms of a legally binding contract of sale over the other parties??  Is it a case of do as I say, not as I do?
 
All this just to impose a lucrative payment system masquerading as buyer protection, and escape cleaning up their marketplace of fraud, which only two years before, they were claiming was minimal?.  Talk about wagging the dog !!!  They even put out a press release stating that ACCC's eventual notification against Stage 2 Paypal Only, undermined consumer protection on Ebay?, and no doubt their ultimate profit projections.  No mention of it being ever so slightly illegal? So apparently, it was ACCC's fault that so many get ripped off on ebay because they enforced Australian laws against Exclusive Dealing?.
 
Nevertheless, Paypal buyer protection was proven in the same year to be as illusive and misleading as Ebay's spin, when put to the test.
 
If anyone recalls, it was after the Frauds of 2008 that ebay changed its entire forum structure, banning all dissenting comments, and shutting off anything ebay related to member only forums.  Best way to avoid media scrutiny and consumer outrage is to ban it, gag it, and reinforce that regime with forum slaps that impact consumer access.  Basically punished for your consumer opinion?. 
 
As was argued then and is relevant now, payment method has nothing to do with consumer safety.  Fraud and unconscionable conduct starts and finishes with the seller and ebay themselves.

I can't think of one corporate entity who can lay claim to 8000 ripped off consumers in one year, and still counting, (and they were only the ones reported on by media in 2008).  The irony of course is that more than half used Paypal, the safest payment method on the net? and were still told to suck eggs?

As was argued then and is relevant now, payment method has nothing to do with consumer safety.  Fraud and unconscionable conduct starts and finishes with the seller themselves, and hence they must be verified and monitored as a starting point for proactive consumer protection.  If they rip off consumers they must be accountable to consumer protection and indeed, Criminal law. 

Just my consumer opinion.

[Philip.Cohen]

Afternoon all. Sorry, but I went walk-about down the south coast to cool off for a while. Anyway, a few more thoughts:

Brum6y,

My point about the “main subject matter” was initially in response to the Wirraway matter and my belief that that seller had no chance of getting out of the deemed contract of sale into which the court indeed found he had entered into, and that the new ACL would have been of no benefit to him either because, even if a seller is totally naïve (which is no excuse in law), then he knows (without even attempting to read the UA; and who has read it? but the judge obviously had to) that when you sell on eBay it is understood, by any intelligent person, that you have already previously agreed, with a “main subject matter” of eBay’s UA, to enter into a binding contract of sale with the buyer, and that clearly necessary and principal aspect of eBay’s UA would undoubtedly be considered a “main subject matter” of the users’ agreement with eBay, and is therefore excluded from the unfair provisions of the ACL anyway.

The agreement to sell (and the consideration therefor) between seller and buyer—in any selling situation¬—is a “main subject matter” (as defined in the ACL) of any contractual arrangement and as such, I believe, these aspects never be able to be overturned on the basis of some other UA condition(s) that may well be unfair but is not material to those main subject matters. The examples quoted in the ACL Guidelines support this contention—whether or not the user has attempted to read the eBay UA, I suspect.

“eBay will not hesitate to intervene and provide remedy”. I can only say that that has not been my experience on the one occasion I had a problem. My understanding is that eBay’s so-called buyer protection is supplied via PayPal and is conditional on PayPal being able to recover the necessary funds from the seller; hence the recently instigated PayPal holds on sellers’ funds, which is some indication of the problems that eBay is having generally with many (too many) eBay transactions.

All law is only principle. In the final analysis anyone that is not happy with a UA or a deemed contract of sale resulting therefrom has recourse to the courts, as the Wirraway seller had; and he is now an even much poorer man as a result.

Ultimately, we can hope that the ACCC will better do its job and use the provisions of the new ACL to protect we mere peasants from the likes of such unscrupulous organizations as eBay. But, I am not going to hold my breath. And it’s a real shame that small “businesses” are apparently not likewise protected from the likes of eBay’s convoluted UA.

Rebel*1*,

“How long do you think a contract would last if it explicitly stated that if the buyer had a problem, then bad luck...?”

In circumstances where the supplier has all the power and advantage (such as eBay), until a court decides otherwise.

This is were we are at crossed purposes. You are debating the merits of eBay’s UA; I am talking about the basics of contract law and only the “main subject matter” of that UA and of the deemed contracts for sale that ensue therefrom. My logic tells me that the “main subject matter” of the UA (the agreement to be bound to sell and/or buy) and any resulting contract for sale between seller and buyer, even though it might be said that there had been no “genuine negotiation” of the matter, will stand as long as any nonsense in the eBay UA does not have a unlawful material affect on that resulting contract that the buyer and seller have previously agreed with eBay that they will enter into.

I think what the ACL Guidelines say as much, that if an aspect of the UA is unfair then that aspect of the UA can be voided. For instance, as you say, eBay should not be able to contract themselves out of all responsibility. In my opinion it does not say that the whole of a contractual arrangement can be voided simply because of an unfair clause that does not materially affect the “main subject matters” of that UA or contract of sale.

The ACL is about any unfairness by suppliers in positions of power that stand over consumer with no power, as does eBay, for example; it’s not about interfering with the very basics of contract law, the intent of which is, otherwise, certainty for both parties to an agreement that arises from the “main subject matter” of the UA, no matter how obnoxious that UA may otherwise be.

I don’t doubt that eBay’s UA is a standard agreement; for them to argue otherwise would be an absurdity (then, they claim to be no more than a “notice board” provider when it suits them, which is such an absurdity). I cannot see it being exempted from the ACL legislation, as far as that legislation goes in controlling such obnoxious UAs and protecting “consumers”.

eBay is no different from to other corporation: they are never going to admit to the truth of anything that might hurt them; hence their ridiculous claims that fraud is only a minor, if any, problem when anyone with both eyes open at the one time knows otherwise; as should the ACCC, but they don’t want to be disturbed during their all-day-long siestas.

I have to say that, as predominantly a buyer, I use PayPal because it is extremely convenient; more convenient than using my credit card or mucking about adding a direct credit account to my internet banking account for a sellers that I may never again buy from.

I do however fully concur with your comments on eBay/PayPal generally and your particularly final paragraph:

“As was argued then and is relevant now, payment method has nothing to do with consumer safety. Fraud and unconscionable conduct starts and finishes with the seller themselves, and hence they must be verified and monitored as a starting point for proactive consumer protection.  If they rip off consumers they must be accountable to consumer protection and indeed, criminal law.”
 
… except, in as much that, if you are able to just as conveniently make your payment via a reputable financial institutions-aligned payments processor—ie, not PayPal—you can (as has been my experience in the past with a bad international transaction) easily and most usually satisfactorily resolve any dispute—but still always subject to the facts of any “main subject matters”—notwithstanding any unlawful material affect thereon such as “fraud”, which encompasses any failure to disclose any material detrimental condition of the good offered for sale.

Personally, I look forward to watching the major (credit card) payments processors putting PayPal back into its eBay coffin box.

I am also extremely disappointed that it appears that small “businesses” are specifically excluded from benefitting from the unfairness provisions of the ACL, regardless of whether or not they have a separate “commercial” UA.

Just my “stirrer’s” opinion.

[*Brum6y*]

In the case of the Wirraway matter, I don't disagree with the outcome of that case or the kernel of your comments. Perhaps, too my view of "main subject matter" as it is described, lacks more in-depth reading - so I shall not pursue that any further unless I come across something pertinent.


But there is one point where I will have to ask you to add to your thinking - as I have....

I, too, was under a similar impression about eBay's "buyer protection" - until I read this post from surf-inside - one of our recently joined members: More wickedness in Ebay and Paypal

I never realised double-dipping like that was possible.

[Philip.Cohen]

Brum6y,

Now that you mention it, I think that I have seen a similar report somewhere else. Regardless, here I was thinking that it was not possible for there to be “More wickedness in Ebay and Paypal”. The joke of it is, it’s not really wickedness—although you cannot be sure that the buyer actually has been refunded by eBay—it’s simply more outright incompetence in their database programming, which is what we have come to expect as the norm from these lobotomized chimpanzees (with apologies to the real chimps) and the headless turkeys that direct them.

[*Brum6y*]

Now that's a direction I could sit back and watch you explore with little risk of objection from me - their I.T. skills (or lack thereof).  Too many years in the Financial sector of the IT industry to swallow a lot of the tripe they 'deliver'.

In a previous life, I was protected by my end users in a massive shake-up of the division I worked in - they wanted me to stay around.  But if I had done HALF of what eBay/Paypal are throwing around, I would have been the first offering to the lions.