EBAY FACILITATING SELLER ABUSE OF DISTANCE SELLING REGS

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EBAY FACILITATING SELLER ABUSE OF DISTANCE SELLING REGS
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It is commonly believed amongst eBay users that the rules eBay set out in their vast (and very useful) guides are the  terms which govern the contract between the buyer and seller.   They are not.  It is important to follow eBay's rules if you wish to use eBay but the terms of the CONTRACT OF SALE are determined by the Seller, the Buyer, Common Law and Statute.... EBAY does not make UK Law, it does make its own procedural guidelines which are mistaken by many.... for Law..

There are two very obvious examples to this which spring to mind.  They spring to mind because both have recently happened to me.  In this blog I shall mention only one.  I shall mention the other (Buyers refusing to pay)  in my next blog.

All users should stick to the eBay rules and guidelines but in addition they need to know that eBay can not... ever... override Statue, though often they purport to do exactly that:  Here is an example I recently encountered and which is plainly written into eBay rules on refunds.  It is counter to UK Law but yet it remains a hard and fast rule.  It is most detrimental to the rights of buyer on eBay.  Although technically eBay is not depriving Buyers of their rights under UK Consumer Law (as they always have the right to sue the Seller) it does mean they facilitate and endorse Sellers breaking the Law.  The seriousness of this can not be overstated.  I have raised this with eBay but they are not interested in protecting the legal rights of buyers... in this instance.  Remember it is the sellers who pay the piper.

I respectfully suggest to eBay that they revisit their position on the matter below and change it.

EBAY ALLOWING SELLERS TO MISUSE DISTANCE SELLING REGULATIONS.
In the UK we have various Statutes which protect the consumer.  One of these pieces of legislation is the Distance Selling Regs.  These Regs normally do not apply to auctions but do apply to most Buy it Now sales on eBay  (BIN is not an auction).  The seller of course must be a Business Seller (and eBay's very lax enforcement of them declaring themselves to be so is another topic for debate... sellers charging VAT in some cases are still registered as non business sellers.... go figure!!!) and the Buyer must be a Consumer.. ie buying other than in the course of business....   Do not worry if the Seller is not listed as a Business Seller by eBay, they constantly overlook this very important element of Buyer Protection...  If from the seller's transactions you can see he is selling in the course of a business then he is a Business Seller for the purposes of the Regs.  This is often shown by volume of sales but also types of sales.  One fellow for example has sold about 450 (not a great many) engine stands over 3 years and is not classed as a business seller, in spite of me complaining to eBay about this.  Clearly he is importing or making these for profit and is therefore, de facto, doing it in the course of a business.  (Yes a hobby can be a business if its primary or secondary ... or even... tertiary aim is to make a profit).

A useful feature of the DSRs is that if the goods are not accepted within 7 days (90 days in most circumstances on eBay purchases because sellers fail to notify buyers correctly (ie on Durable Format) of their rights) then the buyer has the right to ask for a refund and return the goods.  This may be for no reason at all, in which case the buyer pays the return postage or because the goods are defective, not as described etc... in which case the seller is responsible for collecting the goods..   Many many sellers purport in their terms to extinguish this right... Of course they can not.

Here is the thing though:

The law states very clearly that the Seller has 14 days to repay the money paid for the goods if the goods are not accepted under DSR.  It also states, just as clearly that the repayment MAY NOT BE CONTINGENT ON RETURN OF GOODS.  That is to say that the Seller may not... IN LAW... hold the repayment dependent upon the goods being returned.  It is illegal to do so and is actually a criminal offense (being contrary to Statute).  See DSR regulation 14.

Yet..... Ebay’s own rules state that a Buyer may never be reimbursed UNTIL THE GOODS ARE RETURNED ...  Not only that but have to be proven to be returned.... By the Buyer????  Contrary to section 14.

I have raised this with eBay at various levels and they can see the conflict but basically just don't care enough about the Buyer to amend their rules to comply with UK Law.

Sure most often it is easy enough for the buyer to return goods and the matter does not need trouble us but laws are made for the unusual and recently I met with a very, very difficult seller and he absolutely refused, over many months, to refund my money for defective goods he also refused to collect them.  It was his obligation to collect the goods (which required delicate handling) because they were defective (Sale of Goods Act) and to refund me and when I asked eBay for help they told me I had to return the goods first.  I reminded them of the law and they refused to discuss it properly.   When I cited to the Seller UK Law and the DSRs and reminded him he had an obligation to repay me he simply quoted EBay policy... and they backed him up.... 

The DSR and UK Law was effectively trumped by EBay rules????  Even now I find it hard to belive eBay stilll hold to their position that goods must be returned BEFORE refund is made.  This is completely opposite to UK Law.

Of course I sued him and won but should not have had to, eBay are aware of this but simply do not care.  Many other Buyers do not have the confidence or the knowledge to sue and they should not have to.  EBay have a responsibility to their Buyers and they are ignoring it.  EBay can do a great deal more to protect Buyers and at the very least one would hope to see them in line with current consumer protection laws in the UK.... Not using procedures diametrically opposing them.

A few points about Distance Selling Regs.
If the goods are OK but being rejected the buyer must notify the seller and has to cover the cost of return.
If the goods are defective or not as described the Buyer only has to make the goods available for collection, he is not responsible for posting.  He probably may be allowed also to dispose of the goods after 30 days under the Unsolicited Goods Legislation... This is a little fuzzy though.

In either case he does not have to disassemble the goods or use original packing and refund MUST be made within 30 days (watch out in June 2014 for the The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 which bring the refund days down to 14...) of notice and may NEVER be delayed dependent upon return of goods.  I have in the past returned self assemble furniture to companies such as Ikea and Argos fully assembled and they had had to accept this, they know the law and are great about it..  Do not be told that you must repack or disassemble goods.  If it is necessary to assemble to judge the quality etc then you may do so, if that includes glue and nails then that is not your problem.

The Buyer MUST be informed IN WRITING of these rights at delivery or before.  Email will suffice but publication on websites, adverts etc. will not. The 7 day acceptance period starts on date of receipt of the notice (provided it is after goods) and without it the term may be extended to 90 days.

You will see alot of sellers insist you must return goods within 7 days... That is wrong.  You only need to inform them of your wish to return the goods within the 7 days...  The former would be impractical of course.

I hope Buyers and Seller find this useful.

Secularsid
Please see my updated blog to include The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 which effectively replace DSR..  These New Regs give better protection but for enbay, most significantly INCLUDE  online auctions




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