In Australia, An Ebay Sale is a Sale

syousef writes "An eBay sale is a sale says an Australian New South Wales State Judge in a case where a man tried to reneg on the Ebay sale of a 1946 World War II Wirraway aircraft. The seller tried to weasel out of the deal because he'd received a separate offer $100,000 greater than the Ebay sale price. The buyer who had bid the reserve price of $150,000 at the last minute took him to court. 'It follows that, in my view, a binding contract was formed between the plaintiff and the defendant and that it should be specifically enforced,' Justice Rein said in his decision." I haven't found anything like this in previous discussions; have there been similar decisions like this handed down in the US, Canada, or Europe?

Comments

Sale..

[Renraku]

eBay is an auction. Not a sale.

At a sale, either person can change their mind at the last minute.

"Sorry, sir, you can't buy this beer because you look like you've had one too many."

as opposed to,

"Well, you're drunk, but you were the highest bidder..so here ya go."

Ruling them as sales means they're just 'deals' with a down-to-the-second time limit.

Re:Sale..

[AKAImBatman]

Once the auction is complete, it's a sale. Sales are sales, and cannot be reversed after the fact without willingness of both parties, or extenuating circumstances such as a faulty product.

What you're talking about (e.g. "No, you can't have another beer") would actually be the pre-sale negotiations. After the money has been handed over in a store and accepted, the sale has been started. So the bartender had better either give you your beer, or have a good reason under contract law for not doing so. (e.g. If a contract is impossible to fulfill, it can often be reversed. For example: If I sold you a beer, but another employee just drew the last pint for another customer, I would return you your money as it's now impossible for me to give you the beer you ordered.)

The big difference between a bar and eBay is that the contract is agreed to by both parties as soon as the auction ends. Thus the money doesn't have to change hands before the contract goes into effect. This is similar to a sit-down restaurant where you order and consume your food prior to paying. As soon as you order and your order is accepted, the contract is in effect. You imply that you agree to pay for your meal when you order.

Re:Sale..

[plague3106]

Go bid on something at an auction house, and then say 'eh, I dont want it anymore.' See what happens.

Re:Sale..

[ubuwalker31]

Ah, legalese often confuses non-lawyers, and for good reason...its highly technical and specific.

An auction is a *type* of sale. The auction itself is merely a method of attaining a price. The contract of sale is created on the falling of the auctioneer's hammer, or similar event. If a reserve price is not reached, the goods may be sold to the highest bidder, or withdrawn. Whether or not an online 'auction' falls under the common law definition of an auction is highly dependent upon each country's law...and in this case, I believe the judge says that it does, which might be a departure from existing Australian Common Law.

The interesting thing about this case is that the Judge gave the winner the airplane. Usually, if you win a court case like this, you only get money damages unless the goods are unique or very rare. A World War II Wirraway plane, 1 of 5 left in the world, certainly qualifies for the legal remedy of "specific performance".

Re:Sale..

[pytheron]

As soon as you receive what you ordered in a restaurant, and consumed.. then you have accepted. This is the reason why it is perfectly legal to refuse to pay for some meals after eating them (in the UK). The nature of food dictates that you often don't realise that it is not what you expected until after the fact. You are not expected to pay for the restaurants incompetence/mistake.

Re:Sale..

[dreamchaser]

You obviously don't understand what an auction is. Once the winning bid is made it's a verbal contract for sale. The seller can't back out at the last minute in a traditional auction once the winning bid is in, so why should they be able to back out in an Internet auction?

Re:Sale..

[UnknowingFool]

At a sale, either person can change their mind at the last minute.

"Sorry, sir, you can't buy this beer because you look like you've had one too many."

as opposed to,

"Well, you're drunk, but you were the highest bidder..so here ya go."

Ruling them as sales means they're just 'deals' with a down-to-the-second time limit.

There are many clauses in both a sale and an auction which allows both parties to legally back out of an agreement. Your example doesn't really apply. If money changed hands at a bar, legally, the bar is required to return money; however, the bar always has the right to refuse service.

In this case, the seller changed his mind because he got a better offer. There may not be a clause in eBay's agreements with the seller that allows him to do so without the buyer's consent. In many sales, usually the buyer agrees a refund of his money to cancel the sale. However, since this was a rare item, the buyer wanted the item.

Re:Sale..

[AKAImBatman]

As soon as you receive what you ordered in a restaurant, and consumed.. then you have accepted.

No, the contract is formed prior to the consumption. The terms of the contract, however, are not completed until the food have been received. (From what I understand, consumption is more or less irrelevant from a legal standpoint. What if you took your food to go?)

You are not expected to pay for the restaurants incompetence/mistake.

Correct. This is a failure by the restaurant to carry through on its responsibilities under the contract. If the restaurant either states or implies a certain level of quality or service, you have every right to expect that level of quality or service. Of course, a restaurant may disagree with you, in which case it would take a judge to decide if the restaurant really did carry out it responsibilities under the contract, or if you were making unreasonable demands upon the restaurant that are not part of the implied contract.

Disclaimer: IANAL, but who the hell really is around here? We have so few lawyers, it's shocking. :-/

Re:Sale..

[rainman_bc]

eBay is an auction. Not a sale. That doesn't make a difference. The questions is whether or not it's a contract.

There's five things that make a contract:

1. Offer
2. Acceptance
3. Consideration
4. Intention
5. Capacity

Whether this occurs at an online auction, a B&M auction, or at a department store doesn't really matter. What matters is those five points.

At a B&M sales, judges have decided that the offer is when the consumer takes the merchandise to the counter, and the acceptance is when the cashier rings it in. The consideration is the goods that you brought, and your intention to contract is clear when you bring that merchandise. As long as your not an invalid capacity is there.

In an auction is clearly obvious. You offer $100,000 for a plane. The auctioneer stated that the highest winning bid will be accepted. They do this at the time they set up the auction (they COULD have set a reserve - a reserve would state that they will consider lower prices but are not bound contractually). I agree with the judge in this case - tough shit for the guy trying to weasel out of his contract - he should have looked into the value of his plane more before auctioning it on ebay.

Re:Sale..

[networkBoy]

Specifically do this at a farm auction. They are less forgiving than southbees (sp?).
-nB

Re:Sale..

[mcrbids]

Here let me fix that for you...

The big difference between a bar and eBay is that the contract is agreed to by both parties as soon as the auction begins.

Your post is a bit confusing so you may already agree with me. But, at stake is whether or not an auction is binding even though money has not changed hands. If I bid on an item at eBay, am I entitled to the item even though the potential seller no longer wants to sell it?

It would take a moron to read eBay's seller agreement as otherwise. If you list an item on eBay, you'd better be ready to sell it under the terms of the agreement.

Hooray for Australia to uphold centuries-old contract law!

Re:Sale..

[Control Group]

In case that was actually a question: it's spelled Sotheby's.

Re:Sale..

[Mr. Underbridge]

It would take a moron to read eBay's seller agreement as otherwise. If you list an item on eBay, you'd better be ready to sell it under the terms of the agreement.

True. But the question is, what is the remedy? That's an agreement between you and eBay, presubambly, not you and the bidders. I'm not a lawyer, but this decision seems a bit muddled.

Re:Sale..

[Anonymous Coward]

"...the bartender had better either give you your beer..."

Or what? Say he decides to give you your money back, pulls a beer and drinks it himself. What are you going to do about it?

In principle he may have breached the contract of sale. In reality there is no legal remedy available. That isn't by accident, it's because this is crappy behaviour -- but nobody seriously thinks it's criminal or fraudulent.

Re:Sale..

[Anonymous Coward]

This article provides a good introduction to the subject of offering things for sale and establishing a contract as a result http://en.wikipedia.org/wiki/Offer_to_treat.

Re:Sale..

[mcrbids]

That's an agreement between you and eBay, presubambly, not you and the bidders.

Have you read the agreement yourself? Sounds like either you have not read the agreement, or.... (moron?) I'm hoping and praying, in the name of intellectual discussion, that it's the first. It's probably clear by the end of very first sentence, which reads:

When a seller lists an item on eBay, and a buyer bids for and wins that item, the seller and buyer have entered into a contract.

Re:Sale..

[ScrewMaster]

Ah, legalese often confuses non-lawyers, and for good reason...its highly technical and specific.

True. Unfortunately, technical language often confuses lawyers, and for the same reason. I think it's a good part of why the legal system deals so poorly with technical issues.

Re:Sale..

[AKAImBatman]

Or what? Say he decides to give you your money back, pulls a beer and drinks it himself. What are you going to do about it?

Sounds like a perfect small claims court case for receiving punitive damages from an idiot bartender. The bartender clearly breached the contract in that case, so he is liable for damages caused by the breach. Personally, I think the judge would slap rather hefty damages on the fellow just for being such an idiot.

Generally you're correct in that most people wouldn't take it to court, but it wasn't my example in the first place. I'm continuing a comparison that the top poster brought up.

nobody seriously thinks it's criminal or fraudulent.

There's a huge difference between criminal and civil law. When dealing with contracts, you are usually dealing with civil law. So it's quite right that no one should think it's criminal. However, they probably think it's *wrong*, and are perfectly within their rights to have a judge decide on whether the bar tender was actually wrong or not.

Re:Sale..

[OrangeTide]

An auction is considered a formal agreement, and therefor a contractual arrangement. At least in the US, but likely this is universal to any Common Law system.

It is extremely difficult to back out of a sale in a live auction, it has always required the agreement of both parties. If one side refuses to honor the agreement to sell or to pay, then it can be settled in court. (which has plenty of precedent in the US). To save money, it's best not to get the lawyers involved because it's extremely clear cut.

eBay is not going to be treated any different than any other sort of auction. We've had auctions that were held by mail, by proxy and by phone since the 1800s. What is eBay is doing is not exactly revolutionary.

You probably don't hear about these cases happening in the US because it's not news. If you won't pay up, the seller can come after you. And if you won't sell the buyer can come after you. eBay could force you to agree to third party arbitration, but they do not appear to, so all bets are off.

IANAL - but I saw a chapter on contract law on the college tv channel :)

Re:Sale..

[Firethorn]

Generally speaking though, you should cease consuming the meal when you become aware that it's unsuitable. If you clean your plate it's generally considered that the meal was acceptible.

Re:Sale..

[cayenne8]

""Sorry, sir, you can't buy this beer because you look like you've had one too many."

I don't think I've ever heard a bar utter those words before!!

What kind of scary ass bars do you go to?????

Then again, I live in New Orleans, where you can order a drink to go...when you ask for a 'to go cup' they know you are talking about a plastic cup to take your drink with you. Aaah....civilization they way it should be.

Re:Sale..

[Anonymous Coward]

Seriously people, this is one of the principles of law. An offer made to the public at large with consideration becomes binding on acceptance, whether the seller latter changes their mind or not.

The basic case that follows this is 'carbolic smokeball co', where a seller claimed that his smokeballs would prevent you from catching a cold, and to prove it he was offering 1000 pound to anyone who suffered a cold after using the product (the money was placed in a bank). Upon making a claim on that statement the seller was found to be bound to the contract even if he did not intend for it to actually be taken seriously..... for anyone wondering this is the textbook case for a unilateral offer.

From memory this is an old English case, and for any wanna-be lawyers out there that claim its Australian law so it doesnt matter ... you might want to investigate the legal system you are using. Funny enough you will even find Canadian cases that apply in the US.

The only reason this case is news worthy is because it has eBay in it, and the writer clearly doesnt understand the law of contract.

Re:Sale..

[Mr. Underbridge]

Have you read the agreement yourself? Sounds like either you have not read the agreement, or.... (moron?) I'm hoping and praying, in the name of intellectual discussion, that it's the first. It's probably clear by the end of very first sentence, which reads:

Simply because they say it does not make it legally binding. Also, as I said, that contract is between you and Ebay, not you and the buyer.

Sounds like you've never been exposed to basic contract law or common sense, or.... (moron?)

Re:Sale..

[networkBoy]

I had no idea how to spell it. I will forget again shortly :-)

Re:Sale..

[bhmit1]

Once the auction is complete, it's a sale. Sales are sales, and cannot be reversed after the fact without willingness of both parties, or extenuating circumstances such as a faulty product.
...
The big difference between a bar and eBay is that the contract is agreed to by both parties as soon as the auction ends. Thus the money doesn't have to change hands before the contract goes into effect. This is similar to a sit-down restaurant where you order and consume your food prior to paying. As soon as you order and your order is accepted, the contract is in effect. You imply that you agree to pay for your meal when you order.

IANAL, but my impression of contract law was always that two parties had to receive a mutual benefit for the contract to be valid (e.g. one receives money, another receives a good or service). Then, should someone back out of their half of the contract, your legal recourse was to receive your portion of the contract back, plus maybe some damages. When you are talking about a restaurant bill after you've eaten, you can't really give the food back. But when you are talking about an object like this, and it has not changed hands, I'm surprised that the recourse wasn't to give the buyer a refund of any money already paid, maybe a little extra for damages, a negative review in the sellers ebay account, but the seller would still keep the object.

The same is true for most employment contracts (and here I'm speaking of US law), they can't force you to remain an employee, just as you can't force them to pay your salary after you've been terminated. Is the difference here due to my misunderstanding of the law, a difference in Australia, or, as someone else posted, due to the good being a rare object?

Re:Sale..

[jayp00001]

I'm not so sure about that. I thought the sales contract was in effect when the item shipped or when money was recieved. To use your example, you could walk out before the meal arrived and you aren't oblgated to pay- however once the meal arrives, you're on the hook for it. Likewise if you paid in advance- they owe you a meal.

Re:Sale..

[KillerCow]

Ah, legalese often confuses non-lawyers, and for good reason...

Yes, the lawyers makes the laws this way so that no one other than them can practice it without indoctrination. It keeps the barrier to entry high, and allows them to control the inflow of people who can practice it. This lets them keep their wages high.

Re:Sale..

[Anonymous Coward]

Jack Torrance: Have you ever thought about MY RESPONSIBILITIES?
Wendy Torrance: Jack, what are you talking about?
Jack Torrance: Have ever had any SINGLE MOMENT'S THOUGHT about my responsibilities? TO MY EMPLOYERS. Has it ever occured to you that I have agreed to look after the OVERLOOK until May the FIRST. Does it MATTER TO YOU AT ALL that the OWNERS have put their COMPLETE CONFIDENCE and TRUST in me that I have signed an agreement, a CONTRACT, in which I have accepted that RESPONSIBILITY?

Re:Sale..

[Buran]

It's a binding contract. Every time you bid you are told you are entering into a contract with the seller to purchase the item. This means that the seller is bound by contract to sell it to you.

This guy should have set his reserve higher; by not setting his reserve high enough he lost potential profits. I've done the same thing myself before, and knew that it would be unfair to not go through with the sale.

My sole black mark on my feedback record is from a woman who thought I was being rude when she wanted to get out of having to buy my item because she had bought it for less somewhere else. So she gave me negative feedback for not letting her back out of an "all sales final" (which was disclosed in the description) purchase.

Just buying something on teh intarweb doesn't make you automatically able to weasel out of a deal you don't like. People need to learn that the facelessness of the Net doesn't mean you can abuse whoever is on the other end.

Re:Sale..

[mikedeanklein]

If I were the seller I would've offered the (lower $ but winning buyer) a check for $10K and pocket the extra $90K after completion of higher 'transaction'. When I ordered some crap from china ($5) I noticed the shipping was $70! (and this was for item size of deck of cards and same weight!). What I did was send check to seller for amount of item and told them to "keep it and resell" a win-win on both sides...but boy were they PISSED!

Re:Sale..

[Libertarian001]

It most certainly is not. You're saying that the contract is complete when the order is placed. Bullshit. I'm not paying for any fuck-ups the restaurant makes, and I defy them (and you) to try to force the issue. What are they going to do? Hold me captive? Pull my wallet out of my pants? Good luck with that, and good luck finding a judge that would side with it.

This reminds me of a time I went to IHOP. I ordered a T-bone steak (medium rare) and eggs over-easy with hash browns. The steak was charred on the edges and raw (I don't mean a little under-cooked, I mean raw, not cooked at all) in the middle. The eggs weren't cooked. The hash browns were frozen in the middle. The waitress actually claimed that there was nothing wrong with my order and that this was the way it should be.

Do you think I paid for that swill? Do you think I was under any obligation to what-so-ever?

Regarding Ebay and this particular instance, screw the final bidder. How many times has the high-bidder reneged on the terms? I've never done that shill-bidding crap myself, but I've repeatedly had fuck-tards use a Buy It Now option, ending my entry early and then have them not follow through (many times when there are similar high-priced items on the market at the same time). And you know what? Ebay doesn't re-list the item and still bills you for the "sale."

So fuck'em.

If no money changes hands, it's not a deal. And even if it is, the seller, especially of a very expensive item like this, ALWAYS has the option of changing their mind. It's that simple.

I'm wondering if there's a corollary in real estate law. Even when the offers are made and accepted, what actually happens at the signing doesn't always follow. The buyer can walk away (and usually forfeits the earnest money). I assume the seller can do the same, but don't know.

Anyway, Ebay sucks.

Re:Sale..

[AKAImBatman]

Did you read a single thing I wrote?

The contract is entered into when you place the order. The contract is technically completed when payment is made and the food is delivered. However, if the restaurant failed to live up to their responsibilities under the contract (e.g. delivered food that was not up to the implicit or implied standards), then they are in breach. It is then required that the restaurant make restitution.

But hey, don't let the fact that you ignored the post you're responding to get in the way of a perfectly good rant. :-/

Re:Sale..

[2short]

"Simply because they say it does not make it legally binding"

Sure it does. If both parties freely understand and represent that they are entering into a contract, that contract is legally binding. By the time you make a bid on Ebay, they've told you several times that you should consider that bid to be making a contract with the seller. Thus a reasonable person could be expected to understand they are entering into such a contract. Just because there is a third party broker involved as well doesn't mean you and the seller aren't making contract or that you can't sue one another for non-performance.

I'm not sure what you see as the difficulty here; it's, well, basic contract law and common sense.

Re:Sale..

[Petra_von_Kant]

Well, come to Australia, it is against the law to serve an intoxicated person (someone adjudged to have over the prescribed content of alcohol in their blood, or appears to behave as if this is the case) further alcohol.

You will be prosecuted (a fine and or jail) if this occurs and you are found out (yes, even at a private party), as you have a duty of care to the customer or friend.

Yeah, yeah, nanny state, get over it. Working as I do in a large inner Sydney teaching hospital right next door to a popular entertainment precinct, I am heartily sick of stitching up nutters who just can't control their drinking (or drug taking).

Ice, a whole 'nother story, although letting them bounce around our "safe" room for a while often helps if they have only had a little. Occasionally, we have been known to chase them around the park across the road from A&E. Often, as was the case yesterday, they are too wrapped up in getting their gear off to wave their genitalia or other bits at passers-by to notice that the police, security guards and A&E staff are sneaking up on them (yes, I know, they often freak even further when cornered).

"You've got a chart filling a whole wall with interlocking pathways
and reactions to shock and the researcher says "If I can just control
this one molecule/enzyme/compound I'll stop the whole negative
physiologic cascade of post haemorrhagic shock." Yeah, right."

Re:Sale..

[v1]

A group of us were starving and ordered pizza. It was supposed to have cheese filled crust. When the pizza arrived, we dug in right after he left of course. The crust was quite large in diameter (1.25" or so?) and was totally hollow, with a very thin layer of cheese along the inside walls. We cried fraud and called them back, said we didn't get what we ordered. (in the commercials they show the crust being broken open and there's like a 1" bead of cheese inside the crust, and that's what we were expecting)

They said they'd redeliver, but they didn't say anything about the pizza they'd already delivered. So we waited. And waited. An hour later we said screw it, and ate the pizza.

Over an hour later (2.25 hrs total since first delivery) he arrived with the replacement pizza. (guessing redeliveries are bottom of their list to deliver?) He asked us where the old one was.

"duh? we ate it. we were starving over two hours ago."

He wasn't happy about it but I think it was "justifiable consumption".

OT, but the replacement pizza was identical to the first, with next to no cheese in the crust, but we were not in the mood to dispute it again and I doubt they would have made a third attempt to satisfy us. They have not received our business since then.

Re:Sale..

[douglaid]

An auction is like a sale in that the contract is completed when the bid is accepted. The only difference with an eBay auction is that there is a time limit for bids, instead of stopping when there are no bids left.

At an auction, there may be a provision in the rules for the auction that no bidder may withdraw his/her bid. This is a standard condition for auctions of land in Australia. If there is no such provision, a bidder may withdraw a bid in the same way that a purchaser at a sale can.

As for authority in other countries, I am not aware how many eBay sales are big enough to go to Court over. This one plainly was, and monetary compensation would not satisfy the purchaser, so the Judge ordered the seller to carry out his contract. For general merchandise, the Court awards damages only, but a Whirraway aircraft is not the kind of thing that one can pick up anywhere.

Doug (Australian lawyer.)

Re:Sale..

[Infe]

> OT, but the replacement pizza was identical to the first,
> with next to no cheese in the crust, but we were not in the
> mood to dispute it again and I doubt they would have made a
> third attempt to satisfy us. They have not received our
> business since then.

Correction: the replacement pizza was identical to the first,
except for all the free saliva...seriously...I wouldn't
have the guts to send a pizza back like that .. !

Re:Sale..

[Firethorn]

I can understand where you're coming from - as a teenager traveling with my family I've eaten a few meals that were overall unsatisfactory because they were edible, I was hungry and tired and they took too long(to the point that my parents were considering walking out) to deliver. At that point it was just fuel.

As for your pizza deal - when you rejected the first pizza you should of told the place what the problem was. It sounds like you got bit either with false expectations from the advertising sprucing things up too much or the joint was making them wrong. The place that I ate about half the meal because I was so hungry was a spaghetti dish, and they must of spent all the extra time boiling the pasta, as it was basically mush. The sauce was no good either. I explained this in depth to the manager. I got my meal for free.

Re:Sale..

[v1]

oh we did tell them we were unhappy about the lack of cheese in the crust. They didn't specifically say the pizza we got was "defective", and so I got the impression that what we got was "normal" for them, although definitely not equalling their advertisements. Had we asked for a replacement again and GOT it, I doubt it would have been any different.

I'm sure there's a trick to geting the cheese to stay in that crust, and I can only assume they had not quite learned the trick yet.

Binding contract

[halcyon1234]

I'm not sure if there really needs to be a case for it. Ebay makes no qualms about bidders and sellers entering a contract, and contract law is pretty well defined as it is.

Re:Binding contract

[lessermilton]

That's my understanding of it. I don't know about auto auctions, because here in the US you have the lemon law that allows usually three days to return a car if it's a "lemon". That's the risk you run of an auction on eBay - someone gets it for less than you wanted to sell it for. No longer caveat emptor, but the seller too!

Re:Binding contract

[ozmanjusri]

here in the US you have the lemon law that allows usually three days to return a car if it's a "lemon".

That wouldn't be far wrong with a Wirraway. They were a locally built copy of the North American NA-16 Texan trainer, and were fitted with two Vickers machine guns more as an act of desperation than hope.

RAAF guys flying 8 of them took on more than 100 Japanese aircraft during a raid on Rabaul. The results were pretty much what you'd expect.

Re:Binding contract

[morgan_greywolf]

Speaking as someone who has purchased cars in an auto auction, it pretty much goes like this:

1. The seller puts the car on the auction block.
2. When registering the car with the auction, the seller sets a reserve price. This is just like the reserve price on eBay -- it's the lowest price the seller agrees to sell the car for.
3. If the highest bidder does not reach the reserve price, the seller can still agree to sell it to the highest bidder. If the seller does not agree, the car is removed from today's list and goes on the auction block another day
4. If the highest bidder does reach the reserve price, the seller is bound by agreement to sell the car at that price.
5. If either buyer or seller back-out when the reserve is met, there is a potential for lawsuits, has the party has breeched their contract.

In this case, the bidder met the reserve, so the seller has to sell it at that price. The Australian is merely following basic contract law, which is pretty much the same as here in the U.S.

Re:Binding contract

[lessermilton]

Well then, when he returns it, the guy can sell it again ;)

Re:Binding contract

[sirwired]

That's my understanding of it. I don't know about auto auctions, because here in the US you have the lemon law that allows usually three days to return a car if it's a "lemon". That's the risk you run of an auction on eBay - someone gets it for less than you wanted to sell it for. No longer caveat emptor, but the seller too!

Just FYI, for the next time you buy a car, there is no such law in the U.S. The actual "Lemon Law" only covers new car purchases, and has nothing to do with any "3 day rule". Have you ever seen those big stickers on used car lots that say, in inch-high letters, "AS IS"? They aren't kidding.

Sellers are not allowed to actively commit fraud (i.e. say the has a new engine when it doesn't), but otherwise, once you buy it, it's yours, unless you have come to some previous agreement with the seller.

There ARE "cooling off" laws, but they only cover in-home purchases (i.e. door-to-door salesmen) and home refinancing contracts.

SirWired

Re:Binding contract

[Firethorn]

There ARE "cooling off" laws, but they only cover in-home purchases (i.e. door-to-door salesmen) and home refinancing contracts.

Depends on the state. For example, there's a state where anybody over 65 has two weeks to back out of any contract, even a car purchase, as long as the goods can still be returned.

The big 'AS-IS' stickers serve as a warning.

Besides, there's an additional amount of 'buyer beware' at auto auctions. All parties are assumed to be smart enough to know what to look for.

Re:Binding contract

[elBart0]

Depends on the state.

I'm only familiar with Mass, so we may the only state like this, but the lemon law does effect used cars and private part sales.

Mass Gov Website detailing the lemon law.

M.G.L. c. 90 7N:

Notwithstanding any disclaimer of warranty, a motor vehicle contract of sale may be voided by the buyer if the motor vehicle fails to pass, within seven days from the date of such sale, the periodic staggered inspection at an inspection station licensed pursuant to section seven W; provided, that the defects which are the reasons for the failure to issue a certificate of inspection were not caused by the abusive or negligent operation of the motor vehicle or by damage resulting from an accident or collision occurring after the date of the sale; and provided, further, that the cost of repairs necessary to permit the issuance of a certificate of inspection exceeds ten per cent of the purchase price of the motor vehicle.

Re:Binding contract

[mjwx]

In the Wirraway's defence it did take out 2 Japanese Zero's (one confirmed one unconfirmed).

The wirraway like so many other things at that time was an act of extreme desperation on Australia's part. By that time (January 1942) we had already been fighting the Japs for over 2 years, most of our army was in North Africa, almost all of our combat pilots were fighting in Brittan, the Yanks were still reeling from Pearl Harbour and the Japanese continued their advance southwards opposed only by outnumbered and ill-equipped Australian infantry.

The Wirraway was originally a trainer, converted into a fighter bomber and pushed into a fighter role as there were no other aircraft available at the time. The Wirraway was replaced by British Spitfires, US P-40's and the Australian built CAC Boomerangs as soon as they became available.

Re:Binding contract

[julesh]

That's one of the reasons I prefer where I am, the UK. Over here, we have a law that if a *business* sells something to a *consumer*, and that consumer can later prove that the goods were defective at the time of delivery (which they are assumed to be if they can be shown to be defective within 3 months and it cannot be proved the defect is new), then he is entitled to redress.

Consumer protection laws are important, and I can't understand why the US is so far behind us in these terms.

Re:Binding contract

[sirwired]

I stand corrected.

SirWired

Re:Binding contract

[zippthorne]

For most products in the US, we don't need such a law. Businesses and manufacturers who have failed to proved 3 month to 1 year warranties simply don't remain in business for very long. Even used car lots are offering their own warranties, now. And they're always longer than 3 months.

It's spelled "renege"

[Anonymous Coward]

I don't know, but "reneg" needs another "e" on the end.

-ian?

[ObsessiveMathsFreak]

Since preciously few business transactions are conducted within the person of citizens of Australia, I'd say this matter is one of only fairly esoteric academic interest.

Re:-ian?

[somersault]

If that's not satire, then I'll point out that people in China could say the same thing about the US (maybe you are Chinese though and not American, but your statement seems very american to me..).

Re:-ian?

[Onetus]

Of course! Who needs those fancy business transactions - when I can just jump in my kangaroo, bounce down the road and trade a couple of Koalas for some beer.
She'll be right, mate!

Oh - and for your info - You're an absolute Sepo.

And to prove the point:
Watch http://www.youtube.com/watch?v=AfMSKVnzuOs. Note the country being pinned - and then look at a World Atlas.

Us Aussies love America! It's where the rest of the world keeps them.

Re:-ian?

[faloi]

I think you missed the greater swipe at l337 /. editing. "In Australian" can be taken a couple of ways. The way that I took it, that caused me to reread the title several times, was that Australia has its own language called Australian. The way the OP took it was that conducting a sale inside a person from Australian "In [an] Australian..."

Hate to break up your anti-US sentiment though.

Re:-ian?

[Anonymous Coward]

Not only did you miss the point of the joke (which was a rip on the slashdot editors, not on Australians), but then you go on to assume the guy is from the US, which he never claimed to be. Well done, jackass.

Re:-ian?

[Krinsath]

From a technical standpoint, I would say it's a reference to the Australian dialect, which is a subset of the English language (much like American is a similar dialect...same parent language, but divergent).

For those who would question a reference, I'll remind you of the Foster's beer commercial tagline: "Foster's, Australian for beer" which probably helped with the headline a bit.

Re:-ian?

[Anonymous Coward]

You mean Chinese people have tranactions within their person? So, do they have doorways opening to their guts, so the parties involved can just go inside and perform their transactions?

Nifty.

Re:-ian?

[somersault]

:P anti-US sentiment is what makes my life worth living. I like to call it 'rational realistic objectivismification' rather than anti-US sentiment though.

Re:-ian?

[Anonymous Coward]

Jesus Christ, you all are fools. "In Australian" was an obvious play on, "Australian for beer," as in "this is how Australians do things." I'm guessing it is purely an American advertising campaign but who fucking knows. The original post was obviously joking that Australia is a small nation with a small economy, although one can assume that the OP was joking, from the sarcastically florid language.

All you motherfuckers who self-diagnose yourself with Asperger's Syndrome may actually be on to something.

Re:-ian?

[Anonymous Coward]

In English, a sale is a sale. In American, a sale is a sale. In Australian, a sale is a sale. In Upper Butkrakistanian, a sale is shtankasz.

Re:-ian?

[Anonymous Coward]

"All you motherfuckers who self-diagnose yourself with Asperger's Syndrome may actually be on to something."

You mean like how we can't tell someone's intent from their words, either spoken or written?
Or how I can't recognize people even after I have met then several times over a few months, and spent hours fixing their computers?

You are right. That is the basic premise of Asperger's, as opposed to the other autism strains. (As far as I'm concerned, anyway. :^P ) Trust me, if we are watching a movie on TV, I often have to ask my wife who the people are. It could be Halle Berry, Angelina Jolie, Johnny Depp, or that guy from that movie where they did that stuff, ... you know.... Welcome to my world.

Here's a bit of irony, the captcha below is "describe". I couldn't describe most of the people I meet other than to say they were a man or woman, and sometimes not even that. No joke.

Re:-ian?

[Tacticus.v1]

which almost got fosters in trouble :P

"Foster's, the Australian version of a sheeps eyeball"

Re:-ian?

[ozphx]

Actually prostitution has been legalized.

Thank you, I'll be here all night.

What's more relevant...

[craznar]

.. is that it means there is no out for buyers to change their mind either :)

Good news for sellers....

Re:What's more relevant...

[vux984]

I've ended up winning several purchases I no longer wanted for various reasons, and there are a number of partial solutions, which sellers in my experience have been quite agreeable to.

As many of these purchases are very small and shipping is the dominant cost, I just pay the purchase price and advise the seller I have no interest in taking delivery. He can toss it in the trash, or much more likely -

In the case of a larger item that I once won, I negotiated with the 2nd place winner to pay the difference between his bid and mine, and have the shipper send it to him instead.

e.g. if the bids are:

Me: 1000
X: 980
Y: 950

Then the auction will end for me at 985 (or whatever the automatic increase is). So I got in touch with X, and offered it to him at 955+shipping (enough to outbid Y, which is what he'd have gotten it for if I hadn't bid). He agreed, I forwarded the 955+shipping from X + $45 to give the seller their full due, and had him ship directly to X.

Everybody won; X got a decent deal, seller got a decent deal, I got out of a $1000 transaction for $45 bucks (less than the cost of shipping), and while its probably against half a dozen ebay policies they still got their listing fees, and percentage so they got their cut.

And FWIW, to make it strictly within ebay policies isn't even that hard. I just pay the seller off and have him hold off on shipping. Then I re-list the item, get what I can get for it, and have the seller ship to the new winner. I end up paying only the difference between the two auctions; and possibly even make a few bucks.

Of course, all this stuff requires a reasonable and decent seller; but I'm pretty good about identifying those before I make bids. Of course, worst case, you can always take possession of the item, and then resell it to recoup your costs, but the biggest winners then are the courier services.

Re:What's more relevant...

[CodeBuster]

That is the way that real auctions work. Do you think that you could just walk into Sotheby's or Christie's, register as a bidder, bid, and then refuse to pay? Just try that in real life and see what happens. If eBay wants to be taken seriously then they need to clean out the trash, otherwise they will always be relegated to bit player type items because nobody in their right mind would trust them to sell big ticket items such as unique real estate, rare automobiles, valuable art, or any other item in excess of say $20,000, especially when the sky is the limit (as it is in the serious real world auction houses). In an auction all sales are final...caveat emptor.

Re:What's more relevant...

[KillerCow]

In the case of a larger item that I once won, I negotiated with the 2nd place winner to pay the difference between his bid and mine, and have the shipper send it to him instead.

e.g. if the bids are:

Me: 1000
X: 980
Y: 950

Then the auction will end for me at 985 (or whatever the automatic increase is). So I got in touch with X, and offered it to him at 955+shipping (enough to outbid Y, which is what he'd have gotten it for if I hadn't bid). He agreed,

Wow, that would sound like a total scam to me. If I had gotten that email, I would have reported you both to the ebay fraud department.

Re:What's more relevant...

[__aabvlw4075]

0110001101100010010000000110001101110010 0110000101111010011011100110000101110010 0010111001100011011011110110

I think you mean:

0110001101100010010000000110001101110010 0110000101111010011011100110000101110010 00101110011000110110111101101101

The 1101 is pretty important...

Re:What's more relevant...

[vux984]

Really? Why exactly? What is the 'scam potential' here?

I agree that ebay has tightened up policies over the last few years, and in particular now warns and even prohibits you from buying something via a direct offer from another ebay user, because "then you aren't covered by ebay's policies and fraud protection' etc (although the real reason its against the rules is because it cuts ebay out of their listing fees).

In the early days it was common for someone to auction an item they had multiples of and then follow up by contacting non-winning bidders with additional offers -- precisely because it makes good business sense. The people who lost an auction for something were interested in buying it from you so if you've got more why not offer to sell them? Of course ebay couldn't stand for that because it cuts them out of the loop on those items, and they make it sound like a 'scam activity' now, but that's total bullshit. (As proof that its just ebay looking out for ebay consider that they recommend you create a limited buy-it-now auction that only the one person can bid on in this situation. They aren't against you conducting one-to-one transactions -- as long as you pay the listing/closing fees.)

And frankly, if you are buying something online from an individual, whether its on ebay, or not, and its up in the several hundreds to thousands of dollars, and you have the slighest bit of doubt then just use a reputable escrow service. I always ask if escrow is available through mutually acceptable company like zzzz and when selling I always advise that escrow transactions are welcome. Escrow mitigates any risk, and I find you can dodge most ebay scams simply by asking whether you can use a reputable escrow company, even if you don't ultimately use it -- if they answer no, that's a red flag.

Re:What's more relevant...

[elgatozorbas]

.. is that it means there is no out for buyers to change their mind either :)

Which is the way it always has been on eBay and the way it always should be. Bidders can only retract their bid if they mistyped or so, and only rather quickly iirc. the auction game is a fairly simple one. If you don't agree with the rules, don't play it.

Makes some sense, but ....

[King_TJ]

I haven't actually heard of anything like this going to court here in the U.S.A.

eBay constantly warns users that bids are legally binding contracts and so forth. But when it comes to a seller deciding not to sell an item, I think MOST shunned buyers would just be a little disappointed and get on with their lives. When you know you've bid really low for an item, and it looks like you're going to win it anyway - you KNOW the seller wasn't planning on giving it away so inexpensively. You consider it a "steal of a deal" if it really goes through, and if not - you know it seemed "too good to be true" anyway.

I have yet to bid on an eBay auction where I got a deal SO good, it was worth going to court over it to make sure the seller really sold it to me afterwards!

Re:Makes some sense, but ....

[AltGrendel]

You consider it a "steal of a deal" if it really goes through, and if not - you know it seemed "too good to be true" anyway.

Thats why some sellers set up shill bidding. That way they won't get stuck with too low a price on the sale.

Re:Makes some sense, but ....

[magarity]

I think MOST shunned buyers would just be a little disappointed and get on with their lives
 
That's true for all the miscellany whatnot that changes hands on eBay. The article in question here is over 6 figures and for a vintage aircraft of which there are only 5 left in the world. Not a knicknack that dozens of sellers are peddling. This is hardly a whiny loser with a frivolous case.

Re:Makes some sense, but ....

[Anonymous Coward]

That's why they have a reserve price. Don't se the reserve to less than you're willing to accept.

Re:Makes some sense, but ....

[1u3hr]

Thats why some sellers set up shill bidding. That way they won't get stuck with too low a price on the sale.

Shill bidding is an attempt to make buyers think they have competition and make them bid more. That's why it's banned by any decent auction house. Just be upfront and set a reserve price.

Re:Makes some sense, but ....

[HexaByte]

It wasn't worth going to court for, but I once had one of the big e-bay sellers, who starts every auction at $0.99, sell me a "lot" of one item for very little money. Low and behold they "LOST" it and couldn't complete the sale. The next week that very same number of the exact same item was for sale separately! Because they are VERY big sellers, e-bay will do nothing about them. However, they have been forced to move their warehouse because the Attorney General of the state they were in was looking at their practices. There's a whole web site devoted to their crooked dealings.

Re:Makes some sense, but ....

[jedidiah]

Well. Most people aren't selling 150K antique fighter airplanes.

This is not your usual Ebay auction.

Re:Makes some sense, but ....

[wombert]

when it comes to a seller deciding not to sell an item, I think MOST shunned buyers would just be a little disappointed and get on with their lives. When you know you've bid really low for an item, and it looks like you're going to win it anyway - you KNOW the seller wasn't planning on giving it away so inexpensively. You consider it a "steal of a deal" if it really goes through, and if not - you know it seemed "too good to be true" anyway.

If that happened with any regularity, I would think Ebay would crack down on it. After all, isn't that one of the main appeals of the online auction? You've got the chance to get a good bargain, if no one else is bidding against you.

Ebay might not actively police this to make sure the item is sent, but the feedback system works in part to shame or shun those sellers who don't follow through. (Plus I think Ebay has a complaints system for this kind of thing, but I've never needed to use it.)

Re:Makes some sense, but ....

[Usekh]

Quick question. How often have you been in the bidding for something so rare there were about 5 in the world and your big was at 150,000?

This is not a used computer game we are talking about here. We are talking about hundreds of thousands of dollars.

Re:Makes some sense, but ....

[HPNpilot]

I have bid on a number of items, won them, and the sellers refused to sell. My view is that if the price reached was too low, too bad. I didn't set up the auction so I didn't set the terms - the seller did!

Did I give negative feedback? No. Why not? Because I didn't feel these deals were worth the retaliatory negative feedback. Ebay's feedback policy artificially boosts their average feedback numbers so they can say that overall satisfaction is higher than it really is.

In a few cases I paid and never received the items and the sellers kept ripping off more people because Ebay's policies require such a long time before they will even look at a deal gone bad.

Low prices are just a way for smart buyers to compensate them for the risk of dealing with Ebay.

Re:Makes some sense, but ....

[Anonymous Coward]

> I have yet to bid on an eBay auction where I got a deal SO good, it was worth going to court over it to make sure the seller really sold it to me afterwards!

I have. Once. The sale price was about 1/3 of market price on a rare item. I even consulted a lawyer in NY (the seller was located in NY, while I'm in Australia). He told me "pull my head in and get on with my life" basically, as I would first have to "mitigate my loss" before claiming damages. He didn't feel that it was worth the risk going for specific performance as the item wasn't so rare that it was impossible to find elsewhere - just a lot more expensive.

So, faced with spending about 6 months tracking down a similar item, paying a lot more and then launching a writ; I decided it wasn't worth it.

In this case, there are apparently only 5 examples in the world - all known - and the others are probably not available any time soon at any price. So specific performance would be worth pursuing, as the buyer doesn't have the option of shrugging his shoulders and moving on.

Ebay Item

[Azaril]

I don't know if anyone let the Australians know... but didn't WW2 end in 1945?

Re:Ebay Item

[magarity]

Models of vehicles that were build during the war years (because they were for the war) are still referred to as being a war model even if they were still in production a year later just due to association. The planes in question were apparently made from 1939 - 1946, which is definitely a war model: http://en.wikipedia.org/wiki/CAC_Wirraway

Auction vs Sale

[Anonymous Coward]

It has already happend a few times here in Poland that people were obligated by court to sell the auctioned stuff (cars) for the bid amount, that was usually waaay lower then market prices (2 or 3 times lower).

On the other hand - whenever there is a super low bid (lets say sum equal to a few dollars) because somebody forgets to set a minimum price, the court usually decides that the auction is a salesman's mistake and voids it.

Re:Auction vs Sale

[AKAImBatman]

whenever there is a super low bid (lets say sum equal to a few dollars) because somebody forgets to set a minimum price, the court usually decides that the auction is a salesman's mistake and voids it.

That's what's known as "consideration". Whenever there is a contract, it should provide some sort of benefit to both parties of the contract. If the contract is heavily lopsided toward one party, the judge may decide that it's unreasonable as no "consideration" is given to the other party.

Since we're talking about a legal topic here, I suppose I should add that this is not legal advice and I am not a lawyer. Insert funny quip about Holiday Inn Express, Play one on TV, etc. here.

Re:Auction vs Sale

[Anonymous Coward]

Same here in Germany. Since a few years it is legal practice that an offer can be accepted by "mouseclicking" closing a valid contract, which includes ebay.

Re:Auction vs Sale

[nacturation]

Since a few years it is legal practice that an offer can be accepted by "mouseclicking" closing a valid contract, which includes ebay. This is totally offtopic, but I've noticed this with Germans who speak English as their second language. When using "since" in this manner it's expected that there is a specific point of reference in the past, such as "Since a few years ago..." or "Since 2005...". Because "a few years" doesn't indicate a specific point in time, you need to add "ago" to make it specific. When the point of reference is the present, you could also say "For the last few years...".

Aside from that little quirk that I see frequently, your English is great and certainly exceeds my ten word German vocabulary. :)

Re:Auction vs Sale

[Anonymous Coward]

It has already happend a few times here in Poland that people were obligated by court to sell the auctioned stuff (cars) for the bid amount, that was usually waaay lower then market prices (2 or 3 times lower).

They sold cars for 2 or 3 times lower than market price? What's that supposed to mean--that they sold them for negative amounts?

Re:Auction vs Sale

[dfn_deux]

It has already happend a few times here in Poland that people were obligated by court to sell the auctioned stuff (cars) for the bid amount, that was usually waaay lower then market prices (2 or 3 times lower). What the hell is that supposed to mean exactly? 2 or 3 times what? 2-3 times less than the market price? You mean people in Poland can bid negative amounts on ebay? And you guys wonder why there are so many polish jokes...

Re:Auction vs Sale

[Guido del Confuso]

You have the right idea, but technically that's not correct. Consideration merely refers to the exchange of something of value in order for the contract to be valid. This is mainly to distinguish a contract from, say, a promise, which is (usually) not legally binding. If you promise to do something you're not obligated to do it, but if you promise to do something and someone hands you something of value in exchange for making that promise you may well have entered into a contract. It doesn't have to be adequate compensation to be consideration. See, for example, the legal concept of the peppercorn.

You're confusing consideration with the doctrine of unconscionability. That is where the court will refuse to uphold a contract because the terms are considered grossly unfair to one side. It is not often that this happens, as the courts don't like to interfere in the ability of people to enter into contracts, even bad ones. However, a court will occasionally feel that a person may not have realized what he was signing when he entered into the contract, and this is an option that is available to the court in order to protect the interests of a party that was supposedly taken advantage of.

Also, for what it's worth, a mistake on the part of the seller is not usually a reason for voiding a contract. Only if the court feels that it would be unconscionable to enforce such a contract would it be voided (for example, if you somehow accidentally wrote $10 instead of $100,000 on the sale of a house). If you simply made a mistake as to the value, or even made an honest mistake on a lower order of magnitude (selling a $10 item for 1 cent, for example) the court would most likely enforce it.

Re:Auction vs Sale

[AKAImBatman]

Thanks for that excellent explanation. I think I got a +1 Legal Knowledge upgrade from that one. ;-)

Re:Auction vs Sale

[dunkelfalke]

the german word "seit" means both "since" as "since 2005" and "for" as in "for some years".
that's the explanation for that quirk you have noticed.

Re:Auction vs Sale

[emoui]

I am not the original poster, but I know one case from newspapers.

In Poland there is, similar to ebay, auctioning service called Allegro. Rules are basically the same, like on ebay. Whoever bids the highest bid that person wins auction. Once, there was a seller who wanted to sell a used car (Jeep Wrangler, as far as I remember). Unfortunately, the seller forgot to set the minimum price and the winner offered much less for the car than its actual value. After the auction ended the seller wanted to withdraw the item from the auction. He lost in court and now is obliged to sell that Jeep for the amount bade by the winner.

I think that the court decision was fair. Although, on the other hand, sellers can make mistakes and all the auctioning services should provide several steps asking for conformation, so as sellers are aware of what they are doing. From what I know prior to initiating an auction allegro asks seller to confirm all the settings (i.e. initial bid, minimum bid, etc.). Presence of all these conformations was a reason why the seller lost the case in court.

By the way, negative bids are rather unusual for auctions. I wonder why dfn_deux found only this solution to the above problem. Hey dfn_deux, do you know any jokes about logical thinking?

Re:Auction vs Sale

[dfn_deux]

I was pointing out that something cannot be 2-3 times less than it's price. There is a key piece of information missing.

Lets try it. Using your example Lets say that the Jeep has a "market price" of 3000USD, and it sells for "waaay lower then market prices (2 or 3 times lower)" due to an ebay auction. Exactly what are we multiplying by 2 or 3 to reduce the price? 2-3 times the market price would be 6-9000USD and if the final price was lower than the expected price by that amount it would be a negative value...

My initial response was then a joke with regards to that. I'm all ears if you have some sort of alternate answer for what we are supposed to multiply by 2-3 times....

Re:Auction vs Sale

[emoui]

dfn_deux I am not sure if I understand what's the problem. Suppose, there is a car worth 3000$ (according to some average price on the market), someone wants to sell that car and initiates auction setting starting price to 1$. Not many people are interested and the highest bid is 1000$. Unfortunately, poor seller forgot to specify minimal bid (e.g aforementioned 3000$) and instead of withdrawing the car from the auction needs to sell it for 1/3 of its market price.

As far as negative bids, there are such auctions. Instead of buying goods people buy services. The best example is rentacoder.com, but I've heard of an internet auctioning web page where one can "sell" e.g. bathtub replacement. Companies and individual plumbers bid offering smaller costs. This can be considered as negative bids.

dfn_deux I thought that your initial post is a joke because according to some theories in economy goods are worth what other people are willing to pay for them. Therefore, any winning bid on an auction is what should be considered as a market price. You didn't specify that this was your intention.

Re:Auction vs Sale

[dfn_deux]

1/3 of something is not the same thing as saying 2-3 times less than something.

Re:Auction vs Sale

[Anonymous Coward]

There is a similar German quirk with "until". When I was working in Aachen, my boss would say he wanted something done "until friday" when he really meant "by friday".

The "until" version tends to imply working on it continuously up to the specified time, then stopping whether the job is done or not, perhaps leaving it half finished.

In Germany it was the other way around

[Anonymous Coward]

A car dealer made a promotion with a starting price of 1. The car sold at an unreasonably low price and the dealer tried to negate the sale. The court decided that there was a binding contract and the bidder got the car for the low ebay price.

Re:In Germany it was the other way around

[sholden]

That's exactly the same way round.

Re:In Germany it was the other way around

[_Shad0w_]

...that's the same way round.

Re:In Germany it was the other way around

[echnaton192]

As mentioned before, it's the same way around. And for the same reason: A contract is an agreement between two people/group/whatever do do A if the other one does B. In most cases there is no bound in German law for any form this agreement was reached.

If they agreed via telephone, fax, drums, morse code or whatever does not matter. If two sailors use flags to agree to the contract it|s still valid.

Of course there are some examples were zou could get out of a contract. For example, if zou accidentally wrote 10 Euros for mz car when zou meant 10.000 Euros then you get out of it. But you will need to tell the other person as soon as you found out your mistake.

Just because you could have get more is no reason. You as a seller will lose the case in question here in Germany too. Period. I do not know about the U.S. but if a deal at ebeay is too good to be true then it would be very stupid for you to not sue the guy if he tries to chicken out. As long as you have reasons to believe that guy is not completely broke.

...but on the internet.

[Climate Shill]

Judge rules that written agreement to sell constitutes contract, but on the internet.

News for nerds indeed.

Re:...but on the internet.

[White Yeti]

Heh. I guess that since "but on the internet" is the basis for a whole class of patents, it could also be the basis for a whole class of law.

Does there have to be more precedent?

[Angst Badger]

The legal status of auctions considerably pre-dates electricity, much less the web. I have a feeling that if you tried to argue that there was some difference between a web auction and a traditional auction in a US court, you'd get pretty much the same result this guy did.

Re:Does there have to be more precedent?

[Jeff DeMaagd]

I think that's the way it should be. Particularly when eBay says that a bid is a contract in many localities. There's two sidees to the contract then, if the bidder is held to the demand that they must pay the said price for said item, then that demand doesn't make sense unless the item has to go for the bid price if it meets the reserve.

Re:Does there have to be more precedent?

[Dhalka226]

An online auction and a real, physical auction should probably be considered the same thing.

However, I could understand the argument if somebody wanted to make a distinction. While I suppose it's possible that you put up a webpage about your auction item in advance or something and just happen to get a phone call as the auctioneer is talking, it's not very likely.

In a real auction, your item is up on a table for a few minutes. (Well, it may sit on a table for a few days in advance but the auction itself lasts only a few minutes, and I think if you wanted to pull it off the table prior to the actual auction you'd be allowed to do so.) If there's a sale (above the reserve), it's over; they hand your item to the bidder. If not you walk away with your item. By contrast with eBay, the auction can last days and the physical item remains with you. This gives rise to situations like the article describes. Or more reasonably, it would give rise to a shop owner putting some merchandise up on ebay but ending up selling it from his shop first.

It's not FAIR, but I'm not sure it rises to the level of being a civil tort that the courts should intervene in.

Re:Does there have to be more precedent?

[Matt Perry]

I have a feeling that if you tried to argue that there was some difference between a web auction and a traditional auction in a US court, you'd get pretty much the same result this guy did.

I don't know about that. In the US you can take a many-decades-old process and then patent it just because you are now doing it "online". Some court might decide that an online sale is different because it happened via a web browser.

Re:Does there have to be more precedent?

[mysidia]

eBay doesn't consider the transactions auctions.

If you read the eBay User Agreement, you will find, that before you can bid on the site, you agree that eBay is not an auctioneer, eBay is "not involved" in the actual transaction, and there is no guarantee a buyer or seller will actually complete the transaction. (This is different from a "real" auction where an auctioneer takes possession and ownership is transferred to the highest bidder, by the auctioneer, and the bidder had to make a security deposit in advance, to guarantee they would not attempt to back out on their bid, and run away.)

We do not transfer legal ownership of items from the seller to the buyer, and nothing in this agreement shall modify the governing provisions of California Commercial Code 2401(2) and Uniform Commercial Code 2-401(2), under which legal ownership of an item is transferred upon physical delivery of the item to the buyer by the seller. Unless the buyer and the seller agree otherwise, the buyer will become the item's lawful owner upon physical receipt of the item from the seller, in accordance with California Commercial Code 2401(2) and Uniform Commercial Code 2-401(2).

They call sale of items to the highest bidder "Auction-style listing". Because it's a way of negotiating the price for the sale that works like a real auction would, provided everyone follows the rules.

In Australian, An Ebay Sale is a Sale

[geeber]

How about that, the word for 'sale' is the same in English and Australian!

Re: In Australian, An Ebay Sale is a Sale

[Anonymous Coward]

Meh, at least when it's Zonk you know it's a rare slip and that he'll take it personally and strive to improve as an editor as a result. Such commitment to quality is what keeps me coming back to Slashdot day after day.

Re: In Australian, An Ebay Sale is a Sale

[Anonymous Coward]

I think it is more of an issue that "sale" == "auction" in Australia. From other posts, that doesn't seem to be the case elsewhere.

You're missing the point

[paladinwannabe2]

The title says 'In Australian an eBay sale is a Sale', one of many delightful typos we can expect from our 'editors'. He is pointing out this typo in a subtle, yet humorous manner, apparently too subtle for you.

Re:You're missing the point

[fbjon]

You and the GP forget that the language can also be referred to as Australian. Hence the grammatically correct "In Australian.." rather than "In an Australian.."

Re:You're missing the point

[somersault]

I agree with the person who replied to you.. I noticed the typo but thought of it as the language. Hmm..

In Soviet Russian, an eBay Sale is a Sale

Just doesn't really work.

Re:You're missing the point

[1u3hr]

The title says 'In Australian an eBay sale is a Sale', one of many delightful typos...

That's a joke -- as a definition in Australian (the language, aka Strine).

However, as Crocodile Dundee might say: That's not a typo, "a man tried to reneg" is a typo.

Re:You're missing the point

[Anonymous Coward]

no, no, no!
In Soviet Russian, ebay sells you!

Re:You're missing the point

[donscarletti]

In Australia we generally speak English. There is somewhat of an Australian dialect but I assure you that no judge speaks it.

Re:You're missing the point

[1u3hr]

Hilarious. Now they've "corrected" "Australian" in the heading, which wasn't wrong, but still haven't fixed "reneg".

Re:You're missing the point

[ozbird]

Unlike the USA, in Australia we generally speak English. There, I fixed it for you.

Re:You're missing the point

[volpe]

My understanding is that Australian is its own language. I have it on good authority (a television commercial in the U.S.) that "Foster's" is the Australian word for "beer". That's about all the Australian I know.

Re:You're missing the point

[G-funk]

No no no, Fosters is Australian for "ship this swill to the yanks, coz it's better than budweiser so they'll actually drink the stuff".

The right way to do this

[Rob T Firefly]

Many sellers of high-value items on eBay throw in a line like "the seller reserves the right to cancel this auction for any reason," which I imagine would leave the seller the option to go with some sort of last-minute offer like the one in this case. However, said high offer would be outside eBay, and therefore not subject to any of the protections against fraud or simply chinging one's mind in the eBay system.

I'm not much of a fan of how things are done on eBay, but I do know there are proper ways for sellers to tailor eBay's system a bit more toward to what they want to do.

But there are right ways to use the buying process as well. If Mr. $250,000 was all that into buying the plane, why didn't he simply bid on the auction? He might have even beat the high bidder with a lower price.

Re:The right way to do this

[Anonymous Coward]

It wasn't a last minute offer. It was an offer after the auction closed. And the seller cannot cancel the auction after the auction has closed. That disclaimer only works up until the end of the auction.

Re:The right way to do this

[DerekLyons]

Many sellers of high-value items on eBay throw in a line like "the seller reserves the right to cancel this auction for any reason," which I imagine would leave the seller the option to go with some sort of last-minute offer like the one in this case.

The key is that under the law you cannot simply cancel a completed auction - when the hammer falls, a binding contract between the bidder and seller is created. Barring unusual extenuating circumstances, like the item not being the sellers to sell in the first place, or substantial misrepresentation by one of the parties involved, no party to the auction can unilaterally back out of the contract.
 
And that's the crux of this case - the seller changed his mind after the auction was completed and refused to comply with the terms of the contract regarding the sale of the aircraft already in existence. The law in this case if crystal clear - you simply cannot do that.

Auto sales too?

[Sparr0]

I haven't read EBay's policies lately, but I think I recall that they say that auctions for cars are NOT binding contracts... I would probably expect the same to apply to airplanes, if that is still the case. Too busy to look it up now, maybe I will later or a friendly karma whore will reply :)

Re:Auto sales too?

[AKAImBatman]

You know, I remember eBay motors working that way as well. The idea was that the auctions would be used to set a sale price prior to the finalization of the contract, subject to an agreeable price and inspection of the vehicle. However, eBay must have changed things because I can't find any references to the eBay car auctions being non-binding.

I imagine that eBay decided it was better to offer VIN lookup services rather than deal with the hassle of bids that don't go through.

Re:Auto sales too?

[debrain]

I haven't read EBay's policies lately, but I think I recall that they say that auctions for cars are NOT binding contracts... I would probably expect the same to apply to airplanes, if that is still the case. Too busy to look it up now, maybe I will later or a friendly karma whore will reply :)


Cars are typically subject to a regulatory regime and so they are often outside the laws of chattels, goods and services. Cars are also not unique, rather they are really the opposite: fungible. As a fungible entity, if a buyer breaks a deal then the seller can find another buyer fairly readily (within reason, and subject to the lost profit for that car and interest). Similarly if a seller of a car breaks a deal, the buyer can find another seller (subject to foreseeable costs of having to wait to find the another seller).

The Court's opinion of the sale of this WWII airplane gave rise to the extraordinary remedy of 'specific enforcement' because it is a unique chattel. In other words, whereas the Court is generally inclined to award damages (fines) in lieu of the sale, in this case the seller is being subject to the government's monopoly on force in order to transfer ownership of the airplane to the buyer in exchange for the payment they had agreed upon.

Re:Auto sales too?

[ben there...]

...in this case the seller is being subject to the government's monopoly on force in order to transfer ownership of the [WWII] airplane to the buyer in exchange for the payment they had agreed upon. I'd love to see what that would look like.

Re:Auto sales too?

[alxbtk]

Fact : "All bids on eBay are binding so you should make sure you know how much you can afford first."

Source : http://pages.motors.ebay.com/help/buyerguide/buy_v ehicles.html

Early cancellation

[phorm]

What I wonder about is when a bidder cancels the auction just before close. In one case, I had a really good price on an item, and just before ending the seller closed the auction with the reason "item was found to be lost/broken"

I watched the seller for awhile to see if he re-listed and tried to sell the same item, as I think he just didn't get the high bids he had hoped for, but after a while said to heck with it. What would the obligations of a seller be in this case?

Re:Early cancellation

[Lumpy]

A seller can only cancel an auction. Bidders cant.

and as a bidder you are at the whims of the seller until the closing price and bid has been accepted then it's a legal and binding contract.

As a seller I can screw with you all I want cancel and relist auctions every time I see you as winning bidder. I have to pay for every relisting though, so it's not free.

Only the idiots that do not know how to use ebay do that crap. But then I also feel that only the dummies that do not know what an auction is use the stupid "reserve" system. I will not bid on any item that has a reserve, if you dont have the balls to put an item out for the price you want for it then dont list it.

Re:Early cancellation

[JavaManJim]

Ouch, you are sitting quite firmly on the horns of a dilemma! That hypothetical but most painful beast.

Pointy Horn One. You were denied getting the item at a good price. Ouch.

Pointy Horn Two. Then it won't work if you insist on getting the item anyhow. His excuse was it was broken. So out comes his hammer to pulverize your purchase. Ouch again.

Just to fill out the story. What was the item description? Still findable on eBay (the item number)? Approximately what was your bid?

Thanks,
Jim

Re:Early cancellation

[MobyDisk]

I will not bid on any item that has a reserve So if someone puts an item out there that you are willing to pay $100 for, and they put a reserve at $10, you won't buy the item on principle? That's pretty lame.

Re:Early cancellation

[log0n]

Just a heads up (got bit by this recently - nothing sinister)... you can't cancel an auction within the last 12 or 24 hours regardless if it has bids (Ie: cancel all bids and close it - doesn't work). Once it hits that 12/24 hour point of now return, you gotta ride it.

Used to not be like this.

I got bit trying to sell something locally on Craigslist (obscure gear and the local market would most likely latch - but ebay was my backup), had a local buyer, but couldn't end the auction.

Re:Early cancellation

[Anonymous Coward]

you do not seem to understand reserve on ebay.

it's exactly like this...

you:"Ohh how much is that?"
Seller:"I wont tell you, start throwing money at me and I'll set you know when you go over it."

it encourages "fishing" and no auction I have ever seen that uses reserve even fits your fantasy land example. they all are usually set incredibly high and the guy is simply fishing for a price instead of having the balls to post the auction at the starting bid of what he is willing to take.

It does not matter anyways, the amateurs list items at any price higher than $0.99US. Those auctions generate bidding frenzies every time.

Re:Early cancellation

[tlhIngan]

What I wonder about is when a bidder cancels the auction just before close. In one case, I had a really good price on an item, and just before ending the seller closed the auction with the reason "item was found to be lost/broken"

I watched the seller for awhile to see if he re-listed and tried to sell the same item, as I think he just didn't get the high bids he had hoped for, but after a while said to heck with it. What would the obligations of a seller be in this case?

It's perfectly legal to do that, as the "sale" hasn't officially happened yet. It's a bit tricky with auctions, since the official sale happens when the auction ends, while in regular retail sales, it happens when money is exchanged. Perhaps the closest analogy happens for say, e-commerce. You buy an item, but the seller decides he doesn't want to sell it to you and cancels your order - it's still legal, as the sale hasn't happened yet. He may even have taken your money, but if said product hasn't left his door, he's under no obligation to complete the sale (of course, he will have to give you a refund or it becomes fraud).

Like the recent Dell case - Dell didn't ship anyone their goods, so they had the power to cancel all their orders (the case was about what remedies could be had in the case - forced arbitration). The older Amazon case, where officially Amazon undercharged people and shipped them product, is something where the consumer's in the right, since the sale has occurred, and a seller has no recourse to recoup the losses from consumers who actually received the inadvertently discounted product.

So your eBay seller decided the auction wasn't going to end the way he wanted, and removed the product from sale before the sale was compelte. In the case of the article, though, the seller didn't cancel the auction, and thus the sale was made.

It's also like that state department trying to get rid of surplus, and putting stuff on eBay to sell. It didn't sell well, but they never cancelled their auction, leading them to have to sell the equipment at cut-rate prices (or face legal ramifications).

Re:Early cancellation

[Anonymous Coward]

I would have informed ebay by email the item is not in my posession and the auction is cancelled.

Re:Early cancellation

[Firethorn]

I think that it's more that he'd rather go find an item where as long as he's the winning bid he gets the item. He's probably been burned by the reserve idea(hidden minimum) too many times to like it. I think that the 'reserve' idea is to get bidding going and have people lose their heads and overbid, thus earning the seller more money while ensuring the item is not sold for less than he's willing to part with it.

But I agree with his point. If you're not going to sell the item for less than $100, then put the item out with a minimum starting bid of $100. Don't waste the buyer's time.

Re:Early cancellation

[Destoo]

Sure you can.

Have someone you trust bid 10,000 on your auction.

Re:Early cancellation

[Anonymous Coward]

and pay a crapload in listing fees? are you mad?

Re:Early cancellation

[Registered Coward v2]

A seller can only cancel an auction. Bidders cant.

and as a bidder you are at the whims of the seller until the closing price and bid has been accepted then it's a legal and binding contract.

As a seller I can screw with you all I want cancel and relist auctions every time I see you as winning bidder. I have to pay for every relisting though, so it's not free.

True, but buyers can retract bids; unethical ones can create a second account and put in an absurdly high bid then simply never pay to cancel out their bid.

There is the second chance offer - something I refuse to accept on principal. I've gotten one immediately after an auction closed because the buyer backed out; but the bidding was in numerous $5 increments by the same unknown bidder until my high bid was beaten. The seller then offered a me a second chance buy immediately after the auction closed. That smelled too much like shill bidding (although I can't prove it)to find my final price and try to sell it at that price; another had a "second item" that they would sell for my high bid.

My rule is I'll only consider ones where the buyer offers it at my highest price before the first non-wining bidder bid; not my final highest bid. Sure I was willing to buy it at that price but do not feel any obligation to help a (possibly) unethical seller get a higher price than then they would from a legitimate auction.

I've only had a couple of those type experiences on eBay; otherwise I've been quite happy as a buyer and seller.

Re:Early cancellation

[chimpo13]

eBay has been getting worse. It drives me up a wall that they don't list bidders identities. Bidder 1, Bidder 2. Screw that. I'm looking at old motorcycles and cars, and I know people shill. Why the hell did eBay make it easier?

Before they did that, you could spot the shillers.

Re:Early cancellation

[Reziac]

That's exactly what they're hoping for, tho -- auction fever. Same reason lots of stuff starts at "1 cent, no reserve". That will get tons more bids than the same item started at a fair price, and the final price will usually be higher, too.

Of course, having been bit a few times by minimum bids, most sellers now set shipping/handling at what they REALLY wanted to get for the item, to ensure that they get "paid" regardless.

Personally, I don't look at "reserve not met" auctions, since as you say I want to have SOME clue what the seller really thinks it is worth, and not have to piddlefuck around hunting for the reserve price (which in my observation, usually proves to be higher than the actual value of the item).

That's why I like Buy It Now. Tells me what the seller expects to get, and if I like the price, great; if not, I don't need to waste my time.

(Actually, I hate auctions.. I want the price to be the price, not have to guess at it nor have what I pay partly determined by other people's guessing at the price... which is what bidding really is: *guessing* what someone will pay in the end.)

Re:Early cancellation

[brindafella]

You said, "Perhaps the closest analogy happens for say, e-commerce. You buy an item, but the seller decides he doesn't want to sell it to you and cancels your order - it's still legal, as the sale hasn't happened yet. He may even have taken your money, but if said product hasn't left his door, he's under no obligation to complete the sale (of course, he will have to give you a refund or it becomes fraud)."

Well, no.

In most cases the transaction is considered complete when there is a transfer of 'consideration'. That quaint legal concept may be money, but a court may also take it to mean be the promise of money. Say I have made arrangements to pay you, and you know this (because there has to be a means to do this by the legal and procedural processes of the auction system. [Does this sound familiar?]) If I win the auction then you have a fair expectation that the payment scheme will kick in, and you will be paid. On the other hand, I have a fair expectation that you will deliver the item. Promises have been underpinning the auction, and there is an implied exchange of 'consideration' (expected payment versus expected delivery) at the close of the auction.

A related concept is 'estopel', meaning the right of Party #2 to 'estop' (i.e. stop) Party #1 from unfairly taking advantage of a situation based on promises that Party #1 made that were relied upon by Party #2 to their detriment. Say I expect to fly the plane you are selling and on the fall of the hammer ring my friend and offer to fly him from his distant home to mine where I and he can enjoy the experience of flying the plane. I go online and pay for his fare. I'm already out-of-pocket not only for what was your plane but now also his fare. Then, you renege. I relied on your promise to my detriment, and I can ask a court to 'estop' you from taking advantage of the situation by releasing to me what I won in the auction. All the more so would I win the case if you sold the plane after the auction. In that case, the court might well void the later sale (contract) and order restitution. [By the way, ours was a hypothetical sale of a flying model of a Wirraway.]

IANAL (I am not a lawyer) but I have studies contract law as part of post graduate business studies.

Re:Early cancellation

[Anonymous Coward]

Oblig. Family Guy quote:

Meg: Hey, um, do you want to, I don't know, go out sometime?

Craig: huh, that's about as unlikely as me playing by someone else's rules besides my own, which I would never do. I play by my own rules, nobody else's. Not even my own.

Re:Early cancellation

[Mister Whirly]

Whooosh!

Re:Early cancellation

[Lumpy]

Of course, having been bit a few times by minimum bids, most sellers now set shipping/handling at what they REALLY wanted to get for the item, to ensure that they get "paid" regardless.

report the auction to ebay, it get's pulled and they have to pay the listing price. Ebay does not allow shipping padding as it's ebay fees circumvention. I report listings selling stuff for $0.99 with insane shipping all the time, they usually get taken down in 4-6 hours.

Ebay users are the only defense at these guys making up the difference in shipping.

Re:Early cancellation

[mr_matticus]

In most cases the transaction is considered complete when there is a transfer of 'consideration'. No. A *contract* is considered complete when there is an exchange of consideration. A *transaction* is complete when money has been received or guaranteed (by a credit agreement, for example) and the good or service has been conveyed (if the transaction is simply a contract (i.e. a license), then what you say is more or less correct). The promise of money and the offer of a good/service is enough to form a contract, but in most cases it is not absolutely binding. If the product turns out to be out of stock, the money is returned and that's the end. If there has been some sort of error in the agreement on price, the agreement may be void as well.

Estoppel, or more specifically reliance estoppel as applicable here, requires unconscionable behavior on the part of the seller. If a separate buyer was achieved but the seller was unable to cancel the auction prior to completion, there's a strong chance that it doesn't meet the standard for unconscionability. On the other hand, the seller should have contacted bidders or so forth, so it's a muddy case.

As always, this is neither legal advice nor a solicitation for such advice.

Re:Early cancellation

[devilspgd]

Two words: "Closing fees"

Re:Early cancellation

[dmpyron]

However, eBay considers the close of the auction to signify a contractual obligation has occurred. As a seller and a buyer, you agree to this condition when you sign up. You read your T's & C's, right?

Re:Early cancellation

[drawfour]

There is the second chance offer - something I refuse to accept on principal. I've gotten one immediately after an auction closed because the buyer backed out; but the bidding was in numerous $5 increments by the same unknown bidder until my high bid was beaten. The seller then offered a me a second chance buy immediately after the auction closed. That smelled too much like shill bidding (although I can't prove it)to find my final price and try to sell it at that price; another had a "second item" that they would sell for my high bid.

My rule is I'll only consider ones where the buyer offers it at my highest price before the first non-wining bidder bid; not my final highest bid. Sure I was willing to buy it at that price but do not feel any obligation to help a (possibly) unethical seller get a higher price than then they would from a legitimate auction.

I had a similar experience when bidding on a motorcycle on E-bay. I put in my max bid of $3500, and had to leave to complete my motorcycle safety training. At the time my bid went in, it was $3200. Just a few minutes before I left, I got an outbid notification. Oh well, I'll find something else. Then a minute later, I got an email (through ebay) from the person who outbid me saying "You can't outbid me, buddy. Let's keep this thing rolling." So some ass-hat was goading me into trying to bid more. I just walked away.

A day or so later, I got a second-chance auction, to buy it for the $3500, which was my "last bid". I wrote to the seller, explained to him that between my $3200 and $3500 bid, the only bids were from someone who apparently was only trying to ruin the auction, and thus I felt that my $3200 bid is what he should sell it to me for.

He agreed, which surprised me. I thought for sure he would decline, and if he had, I would have reported him and his "buddy" to ebay, using the email I received as some form of evidence, even if not absolute. I picked up the bike that weekend, and I noticed that the seller had given the bidder negative feedback, and the bidder had given negative feedback to the seller. I thought that showed everything was legit -- they wouldn't have dinged each other if they were working w/ each other to try to extract more money.

Re:Early cancellation

[Buran]

Shill bidding is forbidden on eBay and in just about any other auction house. I imagine you'd find the shill's bid invalidated and you'd get a black mark for failing to sell to the real winning bidder. Just use a reserve if you have a solid offer but want to see if you can get more.

Re:Early cancellation

[mr_matticus]

There's no "however" there. Reread the original comment. A contract is in place at the end of the auction. The issue is whether outside circumstances void said contract--for example, a product being unavailable, destroyed, damaged, or the like would release the seller from his obligation, provided s/he refunds the money and assuming the seller did not act in bad faith by listing the item. The completion of an outside transaction could be one of those circumstances if it happened before the end of the auction. Normally, the seller would de-list the item and avoid any issue. However, eBay policies in place prevent de-listing of items in a way that disadvantages both potential buyers and sellers. It was designed to prevent sellers from deleting auctions at the last minute, but the buffer zone is too wide and it has negative consequences. This case is one potential example.

Because eBay now prohibits the cancellation of auctions by sellers at certain points, the seller has lost the primary means of remedying a problem with the listing that occurs AFTER it is put up for auction. One cannot ensure that there will be no extenuating circumstances in the future--no one knows the future, which is partly why bidding is speculative. If I'm auctioning a boat and that boat sinks, and the auction list provides no means to de-list the item, it's not an enforceable contract. Even if you've wired money to me, as long as I return that money, it's over.

Normally, if you win an auction, you have a reasonable expectation to receive that item. However, if the auction should never have been permitted to end with a winning bid and the cause of that erroneous completion is outside the seller's control, that expectation may not be the controlling issue.

Re:Early cancellation

[RexRhino]

So if someone puts an item out there that you are willing to pay $100 for, and they put a reserve at $10, you won't buy the item on principle? That's pretty lame. They are not going to put a $10 reserve on it. That would defeat the point of having a reserve. They are going to put a reserve near the market price.

Re:Early cancellation

[petermgreen]

sure shill bidding may be against policy but if you are carefull about it (e.g. don't use the same account for it too many times and don't bid insanely high) how would anyone know? Ebay has no way of knowing if buyer and seller ever completed the transaction or not unless one of them complains.

Re:Early cancellation

[petermgreen]

they wouldn't have dinged each other if they were working w/ each other to try to extract more money.
Unless they left the negative feedback because they thought it would help cover up the shill status

Re:Early cancellation

[drawfour]

Doubtful. The seller had a perfect rating. I'm not sure why he would screw it up, when he'd made the sale anyway.

Re:Early cancellation

[petermgreen]

sorry /. stripped out my <conspiracy> and </conspiracy>

Re:Early cancellation

[grahammm]

As eBay rules do not allow the seller to cancel an auction during the last hours of the auction, does this not also place an obligation on the seller to not sell the item outside of eBay during that period? In any case, if the seller does sell outside eBay but does not, or is unable to, cancel the auction, then the inability to complete the transaction with the winning bidder is not outside the seller's control.

Re:Early cancellation

[timrichardson]

The law on this is a bit complex in Australia, because the rules are determined by precedent (case law or common law).
An auction with a reserve price is treated differently in English & Australian common law than an auction without a reserve price.
A reserve price indicates a definite intention to sell. If there is a definite intention to sell and a definite intention to buy, you basically have a contract.

Re:Early cancellation

[Anonymous Coward]

Ebay DOES support postage padding. I have a response saying they are not in a position to determine postage. I believe Ebay in China and HK is lower as a percentage, and there are plenty of $1 items with $6 postage.

As for the broken contract, you can go for the lot, and richly pad legal fees - everything that applies to a dishonored cheque applies to things like ebay sales, AND possibly FRAUD.

Re:Early cancellation

[mr_matticus]

That's pretty near the crux of the issue. Any other auction can be pulled or delisted until it is sold. eBay's prohibition may exceed a given standard for what is fair and appropriate. There is no evidence that the item was sold in that period. The offer to sell may have occurred first and the seller, upon returning to eBay to cancel bidding, was prevented. That would be wholly out of the seller's ability to complete the auction--s/he is no longer in possession of the item.

You are not bound in other instances--you may accept higher outside bids or higher offers at any time. People lose houses all the time due to this. It remains the seller's property and the decision to sell to someone else or not to sell is customarily theirs to make at any time prior to auction close. eBay is interfering with the seller's right to control his property in the interest of making eBay work better. However, a prohibition in the last hour would be more than sufficient to cover the problem and equally effective at solving it. Personally, I feel eBay should have to live with pulled auctions entirely, but I'm willing to concede a one hour window--not 5 or 12 or 24 or 48. It's the seller equivalent to last-minute bid sniping, which they accept as part of the reality of auctions.

As eBay's terms also state, as I recall, that eBay is a purchasing site for entertainment only, it would be difficult to present an argument that someone was harmed by the failure of such an auction. It's like buying something and having it not be in stock or be purchased just minutes before you and the computer hasn't updated to reflect that. You think you're getting it, the computer thinks it's available, but it's not.

Re:Early cancellation

[riggarob]

"Only the idiots that do not know how to use ebay do that crap. But then I also feel that only the dummies that do not know what an auction is use the stupid "reserve" system. I will not bid on any item that has a reserve, if you dont have the balls to put an item out for the price you want for it then dont list it." I disagree. What if you have a watch worth 5K, and you start the bidding at a buck. It swells to the overwhelming sum of $800.00 for the winning bid. No reserve, no balls. Nay, nay. No reserve, no money !

Is the sale binding?

[bigrigdriver]

A few minutes spent with Google search reveals that sale negitiations are not binding UNTIL the seller accepts an offer from a potential byer. Then it becomes a contract to sell. Makes no difference if the negotiation is face to face or over the internet.

At least, that's the opinion of US and UK law.

Re:Is the sale binding?

[AKAImBatman]

You need to look up laws for auctions. In an auction, the seller agrees to accept the highest bid given when he puts the item up for sale. The only protection the seller has is that he can set a reserve price. As long as the bids are below the reserve, the seller reserves the right not to sell the item.

In the case of the item in the article, the reserve price was met. Therefore the bidder was going into the sale with the understanding that the seller already agreed to sell for the high bid. Reneging after the auction is complete is a breach of contract.

See: Invitation to Treat

Re:Is the sale binding?

[casra888]

If someone says, I want to sell something, give me an offer. Sure, they can decide if they like the amount. In an auction, unless there is a reserve bid, if someone bids one dollar for the Hope diamond, no reserve, and no one else bids? They get it. By law. Contract is in place. If you have a party store, sell coca cola, have a price tag on a 2 liter of 99 cents. I grab one, take it to the counter and plunk a dollar down. You cannot say, "No, I don't accept your offer. Give me a better offer." You offered to sell at a price you picked, I accepted it to buy. Contract in place. Ok, IANAL, but, the judge explained it to me during my law suit as this. A contract, in it's most simplistic form, is an offer to sell and an acceptance to buy. To wit, you offer to sell me on ebay with an auction, a snoopy nightlight. I agree to buy it. You back out of the deal. I can sue. As soon as the buyer says "I'll take it", a contract is in existence. Best Buy offered a 52 inch tv on thier website for 675$. I printed the ad and went to the store and said "Wrap one up, I'll take it." They said there was a price mistake. "That tv is 1700$" I had it in print. Not my problem. I sued. They claimed to the judge that they "reserve the right to change the price at any time". Judge replied, "Nice try, but your policy doesn't trump consumer protection or contract law" They were at fault, and I recieved the difference in price 1025$ I got my money too! Plus court costs. :)

Re:Is the sale binding?

[DerekLyons]

That I believe is the key - the completion of an auction (I.E. the hammer, virtual or physical, falls) constitutes acceptance by the seller of the buyers offer. This is relevant here because the hammer had indeed fallen, ending the auction and thus explicitly terminating negitiations and creating a binding contract.
 
eBay even warns you that you are making such a commitment to sell (or buy) when you place an auction (or a bid).

Re:Is the sale binding?

[pimpin apollo]

You're absolutely wrong. Your quick search on google has revealed merely the typical offer and acceptance (invitation to treat in the UK). Auctions are a unique kind of offer, similar to a unilateral offer. The replies before me are mostly correct. For the precise wording, see the Restatement of Contracts 28. I've provided the relevant text here:

  28 Auctions
(1) At an auction, unless a contrary intention is manifested,
(a) the auctioneer invites offers from successive bidders which he may accept or reject;
(b) when goods are put up without reserve, the auctioneer makes an offer to sell at any price bid by the highest bidder, and after the auctioneer calls for bids the goods cannot be withdrawn unless no bid is made within a reasonable time;
(c) whether or not the auction is without reserve, a bidder may withdraw his bid until the auctioneer's announcement of completion of the sale, but a bidder's retraction does not revive any previous bid.
(2) Unless a contrary intention is manifested, bids at an auction embody terms made known by advertisement, posting or other publication of which bidders are or should be aware, as modified by any announcement made by the auctioneer when the goods are put up.

Additionally, it should be noted that eBay is not really the final arbiter here. While eBay's policies may well be incorporated as terms of the contract, they only have effect insofar as they are incorporated as terms. If parties have a contrary understanding, that understanding may well govern.

Contract law is not some ethereal mystery. Contracts pretty much mean what they say. As much as slashdot likes to talk about legal issues, courses in contracts, copyright, and administrative law are in order.

Re:Is the sale binding?

[julesh]

A few minutes spent with Google search reveals that sale negitiations are not binding UNTIL the seller accepts an offer from a potential byer. Then it becomes a contract to sell. Makes no difference if the negotiation is face to face or over the internet.

At least, that's the opinion of US and UK law.

At least in the UK, auctions are somewhat different. When you place an item under auction, it is considered an implicit contract to accept the highest offer made during the auction.

In Australia, "reneg" is spelled "renege"

[1u3hr]

In Australia, "reneg" is spelled "renege". Or is this some Variety-journalese for "renegotiate"?

Just kidding. Another stupid typo that a spellcheck would have fixed if the editors could be bothered.

Similar case was won in Poland

[Anonymous Coward]

Polish district court has taken the side of buyer in an Internet auction (in Allegro.pl auctioning service) when he has buyed a car.
As it turned out, the seller didn't actually own this car, and his auction was posted as a market scouting tool.
As a result the court decided that seller has violated a commercial agreement and directed him to pay damages to buyer.
The court considered finished auction to be binding to both sides.
This sentence has been appealed and the decision of appeals court is not yet known.

"Sort-of" Selling Online - Guns and Other Stuff

[BenEnglishAtHome]

I find this interesting. If you advertise something for sale, shouldn't you have to sell it? Not everywhere, apparently.

Nearly all the firearms-specific versions of EBay, like gunbroker.com, are filled with offerings of used guns that basically say "Subject to prior sale. I'm putting up this web page but if someone comes in my shop and gives me money, you're out of luck. If I decide I don't like you, you're out of luck." This strikes me as quite unfair and unprofessional.

Even some professional-looking web sites that sell things don't really offer them for sale. If you go to Charles Double Reed looking for a new bassoon to purchase, you can't just put it in your shopping cart and send them money. Oh, no. The disclaimer ("Clicking the add to my cart button below does not guarantee that this instrument will be available to you.") makes it clear that they get to decide if you're the kind of person they want to do business with.

Yeah, yeah, yeah, I've seen those "No shoes, no shirt, no service" signs. I realize sellers have a right to decide who they want to do business with. But this whole business of offering things for sale and then jerking them back at the last second, seemingly at random, just strikes me as symbolic of a "I don't have to follow any nominal rules of social interaction; I make my own" mindset that seems more and more common these days.

Are people just getting ruder, stupider, and prouder of it?

Re:"Sort-of" Selling Online - Guns and Other Stuff

[Anonymous Coward]

You also have to look at it from the other side. Which is better for the shop owner? Someone at their store waving money in their face, or someone on "the internet" who clicks a button to put it in their cart who may or may not purchase it? If someone is sitting in your store with something, and has been there for an while doing nothing, you can ask them to buy it or leave so someone else can buy it, that isn't always the case online. I know dell does this with their refurb/post-leased stuff where the shopping cart empties after a certain amoutn of time. And what happens if you get something that has been cached and is no longer valid, should they still be legally obligated to sell you something? I know this is off topic as far as auctions go, but it is a concern.

Re:"Sort-of" Selling Online - Guns and Other Stuff

[Anonymous Coward]

Based on the article summary, what you see on gunbroker is not in conflict with this ruling.

It sounds like the judge said, "if you agree to a sale, you cannot renege upon the agreement". The judge didn't say, "if you offer something for sale, you cannot renege the offer before it's agreed".

For a brick-and-mortar example (sorry, no car analogy). Imagine that Store XYZ offers Product Q for sale, in a flier. Store XYZ sells out of Product Q before you get in to purchase. The store is not required to sell you Product Q, just because they offered it, and because you accepted the offer. The store doesn't have the product any more, and cannot accept your acceptance of the offer.

Vaguely like a TCP handshake.

Oh, and as far as, "I decide if I don't like you and don't want to do business with you". Every seller has that right. I am under no obligation to sell anything to any particular individual. If I have a legal reason (i.e. non-discriminatory) to refuse to sell you either a product or service, then I should not be forced to sell it to you.

For example, imagine a person who, when they come into the store, bounces checks. It's reasonable for the store to refuse to take checks from them. If they cancel credit card payments, too, then it's reasonable for the store to refuse to do business with them. If they're rude to employees, or if they drive off other customers, it's still acceptable for the store to refuse them service.

This is correct, appropriate, and The Way It's Always Been.

Re:"Sort-of" Selling Online - Guns and Other Stuff

[Anonymous Coward]

With the gunbroker.com type sites, I'd say that it's perfectly reasonable for them to have that disclaimer. After all, selling someone a gun (legally) isn't like selling a barbecue to your friend. There are a number of laws governing such things that depend on circumstances that may not be able to be satisfactorily determined over the internet. What if you buy the gun in one state, but are doing so a week before you move to a state where that gun would be illegal? Or what if you're hiding a disqualifying conviction or diagnosis, etc.? This seems reasonable to protect themselves from the hassle of potentially dealing with an illegal contract.

As for the kind of person they want to do business with, I'm reminded of the Simpsons where Homer buys an Action Comics #1 from Comic Book Guy, then eats it. It's not so that they can jerk people around, it's so that they have an out if something egregious comes up. The bassoon people might not want to sell a twenty thousand dollar musical instrument to some Jackass show where they drink beer out of it, and the best way to do that is to have that disclaimer. Of course, if they are just using it as an excuse for blatant dickery, that would be an issue, but I see no inherent problem with them giving themselves an out like that.

Re:"Sort-of" Selling Online - Guns and Other Stuff

[Angst Badger]

Are people just getting ruder, stupider, and prouder of it?

Well, yes, but I wouldn't worry too much about it in this context. I'm not a big fan of the notion that free markets can solve all kinds of problems, but one problem they can definitely solve is shitty service. Vendors who annoy their customers have a tendency to go out of business and be replaced by vendors who don't.

That said, if I guy came into my store and wanted to buy a gun and a bassoon, I'd be wary of him, too.

Re:"Sort-of" Selling Online - Guns and Other Stuff

[Anonymous Coward]

jerking them back at the last second, seemingly at random

It's an auction. The eBay winner got outbid by $100,000 from some guy outside of eBay, and the judge's position was that the eBay TOS banning that was binding on the seller.

Re:"Sort-of" Selling Online - Guns and Other Stuff

[mcmonkey]

But this whole business of offering things for sale and then jerking them back at the last second, seemingly at random, just strikes me as symbolic of a "I don't have to follow any nominal rules of social interaction; I make my own" mindset that seems more and more common these days.

Sounds like you're taking these policies a bit too personally. Most likely it has nothing to do with which "kind of person they want to do business with." Rather, one of two situations exist.

One, the web site advertises the same stock as is offered for sale in the meat-space store, and inventory control is not automated. That is, you put in a purchase request for the glock 357 with the night scope and Hello Kitty mother of pearl handle. That same day, someone walks into the store and buys the glock 357 with the night scope and Hello Kitty mother of pearl handle. At the end of the day, the seller checks his email for orders from the web site and updates the site for any sales made that day. You don't get the glock 357 with the night scope and Hello Kitty mother of pearl handle, not because of some imagined grudge the seller holds against you, but because someone else bought it before you did.

Or two, the web site is advertising items the shop might sell but not necessarily what they have in inventory at the moment. You linked to a $20,000 hand made instrument--not exactly the same as ordering the latest Harry Potter book. I grant it would be probably be better if that site did not have a shopping cart at all, but rather just a phone number you could call to check if your desired item was in stock. In other words, I'm betting the disclaimer should be read, "just because we have a picture of a bassoon on our web site does not mean we have an actual bassoon in stock," and not, "just because we have a picture of a bassoon on our web site does not mean we like you enough you sell it to you."

Are people just getting ruder, stupider, and prouder of it?

No, only you. Is there some traumatic shopping incident in your past that causes you to interpret every store policy as specifically targeted to granting the owner the right not to sell to you?

BTW, since the web sites have clearly posted policies, both your examples seem to be the exact opposite of "jerking them back at the last second."

Re:"Sort-of" Selling Online - Guns and Other Stuff

[CrimsonAvenger]

Nearly all the firearms-specific versions of EBay, like gunbroker.com, are filled with offerings of used guns that basically say "Subject to prior sale. I'm putting up this web page but if someone comes in my shop and gives me money, you're out of luck. If I decide I don't like you, you're out of luck." This strikes me as quite unfair and unprofessional.

Considering the legalities wrapped around a firearms sale in the USA, this is not terribly surprising. Keep in mind that a sale directly to you from a seller in another State is unlawful - the actual sale has to be between two people with FFL's (Federal Firearms License), i.e. the seller and a firearms retailer near to the "buyer". Then the actual buyer purchases the firearm from the FFL holder who actually bought the gun.

In addition, of course, "straw man" purchases are unlawful, which places an obligation on the seller to evaluate the buyer prior to sale, to cover his own ass, if nothing else.

Re:"Sort-of" Selling Online - Guns and Other Stuff

[Anonymous Coward]

Vendors who annoy their customers have a tendency to go out of business and be replaced by vendors who don't.

How does that explain AT&T, Comcast, Verizon etc.?

Re:"Sort-of" Selling Online - Guns and Other Stuff

[MindStalker]

the local and federal governments granted these companies legal monopolies and gave them huge subsidies and land to build their networks. Thats how. The barrier to entry in nationwide data networks is huge.

Re:"Sort-of" Selling Online - Guns and Other Stuff

[ChrisA90278]

There is a difference if the sale is an auction. eBay sells out the rules and each party agrees to them. Many people would call this a contract. If I make my own web site and offer items for sale can make my own rules and you can agree to them or not. There is no contract untill both parties agree. The details of how contracts work and what is a contract depends on where in the world you are so we can't argu fine point here. I'm in California and I'm sure the law is differnt in mexico or even Nevada. But I'm sure everywhere an auction is differnt then puttin up a web site where you just have some items and prices listed

Re:"Sort-of" Selling Online - Guns and Other Stuff

[BlueNoteMKVI]

My business sells items on eBay, in an online store and in a physical storefront. Many times we have a very unique item - for example, a vintage musical instrument - that's available for sale in all three places at once. We put similar disclaimers in every auction we post and on our site.

Normally if we put it up for auction on eBay it will sell for far less than if we were to sell it to someone in the store (or even on our own website) so it does not make good business sense for us to take it off the sales floor or down from the website until it's sold. The salesmen in the store don't have access to our eBay system and not all of them can access the website back end. If they sell the item, they notify the web people who take it down, but that process may take a few hours (or days, on the weekend). This can also happen with commodity items also, if someone comes in and buys the last box of reeds. We're working on a solution that will integrate our in-store sales with the website database but that still won't cover eBay auctions. I won't even get into the issues of synchronizing the database with real life - we take inventory on a regular basis and always have to adjust something in the computer.

The disclaimer about "may be sold in the store" also encourages people to come into the store. More traffic in the store means more money coming in, whether they buy that specific item or something else. When we list auctions like that we get many phone calls asking what the in-store price is, and some of those end up in sales. eBay's "but it now" feature disappears when the first bid is made, so the "may be sold in store" feature acts as another backup "buy it now." That also saves on eBay fees (which can be ridiculous) if we can get more than one sale out of one auction or sell the item in the store (if we cancel the auction, eBay doesn't charge a final value fee). We are VERY careful to make sure the auctions are canceled before they end if we sell the item elsewhere.

There's nothing random about it. I'll sell a saxophone to anyone with the money to pay for it, whether it's online or in the store. We've told a few people not to come back because they have a history of being poor customers (bounced checks, rude to salespeople, break things then return them) but that happens rarely and only after a long history of the same garbage. We don't arbitrarily decide that this guy looks black/white/jewish/muslim/shifty-eyed/scuzzy so we won't sell to him. I see nothing un-fair about it either - you have just as much opportunity as the next guy to come in the store if you're local or order over the phone if you're not.

Rude, stupid? Not really. I think it would be more rude to let you bid on the auction or buy online without letting you know that the item might have already sold. It comes down to having multiple simultaneous sales channels (which is just good business) for the same item without a centralized database. If you REALLY want the item, buy it now or risk losing it. That's life.

Re:"Sort-of" Selling Online - Guns and Other Stuff

[DerekLyons]

Nearly all the firearms-specific versions of EBay, like gunbroker.com, are filled with offerings of used guns that basically say "Subject to prior sale. I'm putting up this web page but if someone comes in my shop and gives me money, you're out of luck. If I decide I don't like you, you're out of luck." This strikes me as quite unfair and unprofessional.

For decades (centuries?) it has been accepted practice that unique or low quantity goods, when offered for sale remotely (I.E. by post, or the newspaper for example), comes the implied condition that such an offering was conditional on availability and prior sales. Look at the ads in the classified section of your local fishwrap for example - do you honestly believe that all the goods listed are currently unsold and available for your purchase? Or (like 99% of people) when you call the seller, is your first question "is ______ still available"? Why on earth would you expect offerings on the internet to be any different?
 
I should also point out the bit about "deciding whether or not to do business with you" is an assumption on your part...
 

But this whole business of offering things for sale and then jerking them back at the last second, seemingly at random, just strikes me as symbolic of a "I don't have to follow any nominal rules of social interaction; I make my own" mindset that seems more and more common these days.

How such things are done (by the sellers) hasn't changed one bit by the shift to internet sales. What has changed is an increasing number of people who demand instant and complete gratification in every transaction. Internet sellers have had to explicitly add disclaimers because so many customers on the internet are asshats who don't realize they aren't the only person in the universe and that nobody keeps their internet offerings up-to-date 24/7. (Or that such a thing is impossible.)
 
 

Are people just getting ruder, stupider, and prouder of it?

Yes, people are getting ruder, stupider, and proud of it - but it's the face in the mirror getting so, not the phantom on the other side of the computer screen.

Re:"Sort-of" Selling Online - Guns and Other Stuff

[Angst Badger]

They're monopolies or semi-monopolies. If you don't have a free market, you don't get the benefits of competition.

Re:"Sort-of" Selling Online - Guns and Other Stuff

[mdielmann]

...nobody keeps their internet offerings up-to-date 24/7. (Or that such a thing is impossible.) Not only is it possible, I work with a system that does so (in-house and online systems feed off the same database). That said, there are a lot of businesses where having such a thing isn't cost-effective. But there are large businesses that do it, and some smaller ones. I also doubt any of them integrate with auction sites well, if at all.

Re:"Sort-of" Selling Online - Guns and Other Stuff

[BenEnglishAtHome]

It's not so much that I take these things personally. I've never actually had a problem with either of the sales venues I cited.

But to further explain, on gunbroker it's terribly common for you to bid on an item, win the bid, and then be told "Oh, a few days before (or even right after) the auction ended, somebody came in the store and bought it." Why didn't the seller remove it from the site? I guess because they're just sloppy but what bothers me is the attitude of "I'm in possession. I don't have to even try to be competent. Screw you."

As for the bassoon, another poster has said that a seller might not want to deliver a fine instrument into the hands of some Jackass-style TV show where they're gonna drink beer out of the thing. Well, why not? If you advertise something for sale, why should you care what the purchaser does with it? It doesn't seem like that's any of the seller's business.

As for their disclaimer, if you've followed their site for years like I have, you know that the disclaimer actually means "The better the instrument, the more control we want to have over who gets it." If you try to buy a rare and special instrument from them, they want you to audition it so they can hear if you're worthy to own it. If they deem you not worthy, they won't sell it to you. An incredibly rich person who wants to buy his preteen a starter instrument will simply be turned away when he tries to buy a USD$30K+ instrument. I sort of understand it but I also feel it's a sort of controlling attitude that I find distasteful.

(An example aside - Have you ever boarded a larger boat where the first thing you saw was one of those cutesy signs that said something about how the captains rules are the only rules? There's a reasonableness to that; in case of an emergency at sea, there's an overriding need for everyone to shut up and unquestioningly, instantly obey the orders of the captain. Lives can be at stake. But lots of recreational boat owners expand that attitude willy-nilly and revel in ordering people around. If you're on their boat, you have to do what they say, even if they're being stupid and making everybody miserable. It seems to me many sellers are falling into the same trap of exercising control under the color reasonableness merely for the sake of being in control and without any solid justification. Surely you chafe when placed under the authority of such people?)

Supposedly, public sales should be fair. I know when I did extensive business on EBay a number of years ago, any item on the auction site was reserved for that sales venue until that auction ended. If someone called and asked me if I had a Barbie airplane in stock (I was helping my sister sell collectible Barbie dolls and accessories) the answer would be "It's up on EBay at the moment so I can't even talk to you about a direct sale. Call me after the auction ends and if it didn't sell, we can negotiate a price." It would never have occurred to me to offer a unique item both online and via direct phone sales at the same time. That would be screwing over one set of customers or the other.

I don't think I'm alone in this attitude. There's a basic notion that sales should be fair. Yes, if someone gives you a valid reason to not do business with them, even a flimsy one, I can accept that. But sellers should be honorable enough to actually honor the offers they make to the public absent a compelling reason.

There was a time when it was perfectly reasonable to say to someone "Yes, my house is for sale but I'm not going to sell it to you because you're black and we don't want your kind around here." Eventually, we as a society realized that shutting someone out of a nominally open commercial opportunity for stupid reasons was a violation of the basic social contract that allows us to cooperatively build a better society. Thus, the Fair Housing laws came into existence.

It's a matter of degree, of course, but if someone says "This is for sale but not to you," I think they are too often being a dick and just taking a little power trip. I find it a tad irritating.

Re:"Sort-of" Selling Online - Guns and Other Stuff

[lysse]

No, actually. At least under English law, it goes along with the doctrine that the contract of sale is formed only at the point at which an offer to purchase is accepted - so for example, in a supermarket, when the buyer presents an item to the cashier they are actually making an offer to purchase that item, and the cashier can either accept or reject that offer. "Offering" an item for sale in a shop is merely making an invitation to treat. The principle has been relied on a number of times over the last century or so; some notable cases are Pharmaceutical Society of Great Britain v Boots Cash Chemists [1953] 1 QB 401, Partridge v Crittenden [1968] 1 WLR 1204, and Fisher v Bell [1961] 1 QB 394. Of course, as a seller you can't act deceptively (eg. bait & switch), and once you've accepted an offer to purchase at a specific price you're bound by it, but up until the formation of a contract both parties have the right to walk away.

(IANAL, this isn't advice, To Serve Man is a cookbook... you know the drill)

Re:"Sort-of" Selling Online - Guns and Other Stuff

[TheoMurpse]

I'm not a big fan of the notion that free markets can solve all kinds of problems, but one problem they can definitely solve is shitty service. Vendors who annoy their customers have a tendency to go out of business and be replaced by vendors who don't.

Walmart responds: HAHAHAHAHAHAHAHA!

Re:"Sort-of" Selling Online - Guns and Other Stuff

[mcmonkey]

It's a matter of degree, of course, but if someone says "This is for sale but not to you," I think they are too often being a dick and just taking a little power trip. I find it a tad irritating.

Fair enough.

Re:"Sort-of" Selling Online - Guns and Other Stuff

[DerekLyons]

While you are completely correct - I was speaking towards the smaller retailer of the type described by the grandparent. It's not impossible, or even unusual, for them to not have a POS system at all. Postings on forums and whatnot are done manually.

Re:"Sort-of" Selling Online - Guns and Other Stuff

[GunBroker.com_MGT]

The GunBroker.com user agreement is very clear that listings the item for sale is a contract which must be honored with the winning bidder. Listings which state terms contrary to the user agreement have no basis in the law. We attempt to remove any verbiage which is in blatant conflict with the user agreement but that is of course a tough job. Be assured that any seller refusing to complete the transaction will be removed from the system. They might make a few bucks on the transaction but will lose out in the long run.

Common Sense?

[bepolite]

I had a similar situation occur (on a much smaller scale) while in high school. Isn't this pretty well established law? Once you agree sell something you can't back out because you get a higher offer.

Re:Common Sense?

[Aladrin]

On the other hand, it IS possible for the buyer to back out on EBay. They'll get a visible strike on their record (oh noes!) and that's it. They are not forced to conclude the sale. Why should the seller be any different?

At this point, the dumbest thing the seller did was tell the truth. He should have claimed the aircraft failed an inspection, then realized his 'mistake' and continued the sale with the second buyer. He'd have been free and clear.

In a perfect world, neither side would ever back down from an agreement. This isn't a perfect world.

Side note: I'm not an advocate of lying, but if you're going to do 1 nasty thing (break the agreement) don't try to make yourself feel better by doing something proper (telling the truth about why.) It's just plain dumb.

Re:Common Sense?

[nasch]

I don't think it would have mattered. The plaintiff's case was not based on the fact that the seller got a better offer, but that a contract had been entered, and the seller breached it. Lying about it wouldn't have improved anything, and at worst would have gotten him perjury or contempt of court of whatever charge applies in Australia if the judge found out about it and was in a bad mood. And if I were a judge and a defendant lied to me, I would probably be in a bad mood.

Re:Common Sense?

[Aladrin]

I never said to lie to the judge. I said to lie to the buyer. If the buyer doesn't know there's anything wrong, he won't sue. If you said 'It didn't pass inspection and I can't legally sell it now' he's not likely to argue at all.

Ultimately, this will be a mistake

[tkrotchko]

"Thus the money doesn't have to change hands before the contract goes into effect."

This is probably a mistake in the long run, because now we'll start fiddling around with when a contract is in effect. For example, if an auction can only be paid for via PayPal, and the person bids, wins, and then doesn't pay for a few days, is there a sale or not?

If you leave it at "once money changes hands, it's a contract", then it's simple to remember and enforce. It's better for everyone, because it encourages the buyer to get the money to the seller as quickly as possible. And the buyer knows as soon as he pays for it, it's his, even if not in his possession.

Re:Ultimately, this will be a mistake

[AKAImBatman]

Dude, try reading the next paragraph. You know, "the difference between eBay and a bar"?

Re:Ultimately, this will be a mistake

[Control Group]

No, it's not a mistake; it's the foundation of almost all contract law. The whole point of a contract is to guarantee future performance, be it delivery of goods, money, or service. If the contract isn't in effect until the delivery has happened, what good is the contract? As a somewhat degenerate case, if the contract isn't in effect until the money has changed hands, it would be impossible to perform a credit card transaction for more than $25 (look at the bottom of the document you sign). It would, in fact, be impossible to have a credit card, since you would claim that you didn't owe Visa any money; your contract was void until money changed hands.

The point of purchase transaction is a special case of contract; the exchange of goods for money itself serves as the contract, as opposed to a written agreement specifying the terms of the contract.

In the case of eBay - according, at least, to the rules promulgated by eBay, and dependent upon a US court upholding them as valid - the contract is in effect upon bid. That's what the bidder agreed to when submitting the bid, and the seller agreed to when offering the item for auction (subject to reserve price). It is no less well-defined than an exchange of money; there's no reason to think it's somehow more ambiguous.

The point is, you can't make contracts only effective upon exchange of money, since the very idea of a contract depends upon its authority over future performance.

Re:Ultimately, this will be a mistake

[Registered Coward v2]

"Thus the money doesn't have to change hands before the contract goes into effect."

This is probably a mistake in the long run, because now we'll start fiddling around with when a contract is in effect. For example, if an auction can only be paid for via PayPal, and the person bids, wins, and then doesn't pay for a few days, is there a sale or not?

In US law (an probably others) a contract is formed by offer and acceptance. Since a winning bid is acceptance and the seller made the offer (via the eBay listing), the conditions for a valid contract were met. The seller is obligated to deliver the goods and the buyer to pay.

In addition - there has been consideration; legal intent and I assume the person is old enough to legally enter into a contract.

An interesting question could a 10 year old (or someone who is not capable of entering into a legally binding contract) be held by eBay's rules?

If you leave it at "once money changes hands, it's a contract", then it's simple to remember and enforce. It's better for everyone, because it encourages the buyer to get the money to the seller as quickly as possible. And the buyer knows as soon as he pays for it, it's his, even if not in his possession.

Actually, that would mean either party could back out prior to payment - the buyer by not paying and the seller by refusing payment; creating a lot of uncertainty for the seller and the buyer and making contracts essentially unenforceable. That would not be a good situation and make much of today's commerce much more difficult.

Re:Ultimately, this will be a mistake

[KDR_11k]

An interesting question could a 10 year old (or someone who is not capable of entering into a legally binding contract) be held by eBay's rules?

EBay requires the user to be at least 18 years old unless they changed that since I signed up.

Re:Ultimately, this will be a mistake

[MCZapf]

In US law (an probably others) a contract is formed by offer and acceptance.

In a traditional, in-person auction, the bidders make the offers and the seller accepts or rejects them. The auctioneer is not the seller. He only solicits offers to find the highest one. That's why they use phrases like, "who will give me $10 for this lamp?" Even when the auctioneer bangs the gavel and says, "SOLD," it means nothing. At least that's what I heard from a lawyer once. I suppose the seller must still accept the winning bid for a contract to be formed.

Ebay's terms of service seem to differ from this practice. A listing is supposedly an offer. However, I note from the article that real-estate bids are indeed considered offers, or, as the article says, "expressions of interest."

Re:Ultimately, this will be a mistake

[Registered Coward v2]

Ebay's terms of service seem to differ from this practice. A listing is supposedly an offer. However, I note from the article that real-estate bids are indeed considered offers, or, as the article says, "expressions of interest."

Real Estate is probably different given the large body of law that covers the sale of real estate; eBay sales probably don't conform to the law so it is not a binding offer on real estate.

Gazumping

[Godwin O'Hitler]

The "deal is a deal" approach seems only fair to me. But apparently reneging is fair practice. It was quite common in the UK, maybe 25 years ago when there was a seller's market, for people buying houses to find their agreed upon price suddenly outbid. There was even a special word invented for the phenomenon: gazumping.

Personally I don't see why anyone should get away with reneging on an auction sale. If you put an item up for auction "just to test the water" you should get what's coming to you. If you weren't prepared to sell at the reserve price then you shouldn't have put it up for auction in the first place.

1946 World War II ?

[jolyonr]

Well, I know that Australia are ahead of us because of the time difference, but this is ridiculous!

Jolyon

Similar things in Europe

[gweihir]

The perhaps most famous case was in Gemany, were some car dealer aucioned off a new a car, but it got a pretty low price, about 25% of its worth. The seller tried to renege on the contract, but a court decided that a binding offer had been made and the car had to be sold to the highest bidder at the auction end-price. As far as I remeber no appeal was allowed because the case was obvious. So in Germany an eBay auction offer is a legally binding offer and if the highest bid is low, you have to sell for that price nonetheless.

Re:Similar things in Europe

[3247]

As far as I remeber no appeal was allowed because the case was obvious.

Actually, there was an appeal... and another appeal on top of that.

The first instance court, the Landgericht Münster (~ District Court of Münster) said that the "auction" was not a binding contract whereas the court of appeal, the Oberlandesgericht Hamm (~ Higher District Court of Hamm) judged that it was. This appeal decision was then confirmed by the Bundesgerichtshof (~ Federal Supreme Court).

The bottom line(s):

• It's not that obvious.
• There were appeals.
• The ruling is confirmed by the supreme court of Germany.

Re:Similar things in Europe

[gweihir]

Actually, there was an appeal... and another appeal on top of that.

The first instance court, the Landgericht Münster (~ District Court of Münster) said that the "auction" was not a binding contract whereas the court of appeal, the Oberlandesgericht Hamm (~ Higher District Court of Hamm) judged that it was. This appeal decision was then confirmed by the Bundesgerichtshof (~ Federal Supreme Court).

Hmm. Must have confused it with some other thing. Thanks for the info!

Side note: Germany has a highest regular court (Bundesgerichtshof) and a constitutional court (Bundesverfassungsgericht). The first one also serves as court of final appeal, while the second one if for things regarding the german constitution. The two are physically very close to each other and if you ever stroll trhough the big park in Karlsruhe and suddenly there are armed guys in the bushed, then you are close ;-)

Corporate fraud

[Anonymous Coward]

A "sale" is only a "sale" in the US when a corporation wants it to be a sale.

My cable company offers a "value tier" of internet for $26.99/mo, and a preferred tier that has a promotional rate of $41.99/mo for 3 mos, then $59.99/mo after that. I called and asked for the value tier, but my first bill was for the $41.99 preferred service. When I called to complain, the operator explained that they had done me the favor of upgrading me to the preferred service because it was such a value! I had to call and ask five times to be changed to the service I had originally ordered. I won't mention a company name - but I'd like to tell them to sux my c@x if you catch my drift...

But then again, my $14.99 DSL service is costing me $39.99 a mo, and my $69.99 family cell phone plan is costing $109/mo - so fraud is pretty much the new standard for American companies...

The latest gambit is the flier in our bills illegally and unilaterally informing us that we have given up our right to sue the cable company... the states attorney general is "considering his options" in response....

When will this republican reign of terror end?

Confused on the Timeline

[Wingmanjd01]

Wait a minute...Wasn't the war over in 1945? Why is there a 1946 WWII airplane, or am I missing something?

Re:Confused on the Timeline

[swaq]

Redundant and already answered above.
http://yro.slashdot.org/comments.pl?sid=260283&cid =20102389

Re:Confused on the Timeline

[Anonymous Coward]

It's most likely similar to model "years" for modern cars, such as the fact that back in July we were already seeing ads for the Chevrofordyota ($curyear + 1) Genericar, or the Madzaimler-GM ($curyear + 1) Biggercar. The "1946" model was probably out sometime in May of 1945.

Coulda . . .

[Dausha]

What the seller could have done is offered the original buyer a portion of the difference between the original price and the higher price. That is, the original price was 150K and the new price was 250K, so offer the original buyer 10K. The seller makes $90K more than he had before, and the seller is compensated for the loss of the purchase. Heck, even if the buyer got $50K, the the seller would still have netted $50K more than with the original sale.

Re:Coulda . . .

[innocent_white_lamb]

If the original buyer wants to do business like that, why not just hold the seller to the original price, then re-sell it to the new bidder and pocket the whole $100,000? That's a quick profit.

Re:Coulda . . .

[Dausha]

"...then re-sell it to the new bidder and pocket the whole $100,000? That's a quick profit..."

The headache of forcing the original sale. Remember, the seller breached, which would require the first buyer to go to court. FWIW, the sort of deal I described is one of the remedies courts have in situations like this. It's not like I came up with this on my own, I learned about it in law school.

Where is the fraud alert..

[Technician]

Nobody thought the offer was too good to be true? I think the court may have saved this guy from a fraudulent buyer. Who offers 100,000 over the sales price without being in the bidding? That alone is a red flag. How many times are sellers items up for bid send offers outside the auction channel offering more money but avoiding pay-pal and etc. Here is an extra $5,000 for the item. Please forward 2,000 to my shipping agent by Western Union and keep the extra 3,000 for yourself.

Just what were the terms of the offer outside the auction channel?

The court decision may have saved the seller a bundle of money.

Why sell outside eBay?

[orkysoft]

Why didn't the person who wanted to pay so much more money for the plane enter the eBay auction with his high bid? Then he'd have won, and there wouldn't have been a problem!

So why try to sell it outside of eBay, when you have the eBay auction running? That's just asking for trouble...

Bid is same as a sale

[SuperKendall]

Read the eBay TOS - a bid is considering a binding contract between you and the seller that you agree to pay that price for an item if your bid is the highest.

There's a perfectly valid explanation for this

[Optic7]

Unlike Ebay, where it seems most sellers sell online only, the situations you describe sound like sellers that sell both online and at a retail store. As such, it's much more difficult to control two possible avenues for sale of the same product, especially if they're not monitoring all their online sales in real-time. You can imagine how difficult this would be. Say someone walks into their store and wants to buy an item 30 minutes before the auction of the same item ends online. Do they a) sell the item to the customer who is in the store with cash in hand or b) tell the person with cash in hand that they can't sell the item that is right in front of them with a for sale sign, and then have to deal with a possible dead-beat on the online auction?

Snipers

[skinfitz]

See this is why you should never respond to emails asking you what the reserve price is as they are from snipers waiting to bid that exact amount in the last 10 seconds.

Re:Snipers

[wombert]

Or perhaps he place a maximum bid over the reserve, but wasn't charged any more than the reserve because there was no other bid.

Starting bid: $1.00, with $150,000.00 reserve
Buyer enters maximum bid: $200,000.00
Ebay automatically enters current bid as: $150,000.00, reserve met

Until there is another bidder, the upper limit of the first bid isn't tested.

Re:Snipers

[wombert]

...Of course, placing the bid at the last minute makes it slightly less likely that you'll encounter competing bids. (But only slightly, given the prevalence of snipers.)

In Canada...

[th3_ev1l_m0nk3y]

Once the auction ends, a binding sales agreement has ben formed, under contract law. Once bidding starts, the auction cannot be stopped and the item must be sold to the highest bidder, unless a reserve has been specified before the auction begins. Bids may be retracted before the sale is complete, but once the auctioneer announces that the item has been sold, the highest un-retracted bid is binding.

Seller Can Do What They Want

[Anonymous Coward]

You know, I have bought and sold a few homes in California. One of the rules of the Real Estate market is that a Seller can put his/her house on the market at any time and they can take it off the market at any time, for any reason. If I wanted to change the price of my offering, I can do so. That doesn't mean that people will pay for it but as the seller, if I decided I didn't want to sell, it is is perfectly legitimate for me to do so. I don't understand why the same cannot be said for an auction. Maybe I want to keep my plane after all. Maybe I don't trust the buyer. Maybe someone offered me more. Whatever the case, I have the right not to sell. I also have the right not to purchase if I choose not to. I can sign any contracts I want but if I decide that I have had a change of heart, unless money has changed hands, I'm within my right to waive the whole deal.

Since the money hasn't changed hands yet, in my opinion, this is not a case worthy of going to court.

Re:oblig. Russian Reversal on title

[LordEd]

At least do it right. The obligatory doesn't start with "while in Russian". The general form is "In Soviet Russia you ". Multiple exclamation marks are not necessary. Five exclamation marks is a sure sign of insanity.

In Soviet Russia, sale sells you!

In Poland we had...

[Vo1t]

... a similar situation. It was a Kia SUV as far as I remember. After the end of the auction the seller told the highest bidder that he must be crazy if he thinks he will really sell the car for such sum (something like 1000USD or something, 10x less than its worth). The buyer got pissed off and took him to court. He won. I don't know where the case is at the moment, whether the buyer got the car or something else. All I know, that the amount of people looking for such "bargains" (some of them are created by accident - pressed ENTER too quickly, or the seller sucks at computer skills) increased. If such a seeker finds such a bargain he threatens him to take the case to court. On the other hand, the amount of cheaters, like the seller in the story, decreased.
I think that in general, such precedence is a good thing. Just to give a lesson that you can get punished for cheating on the Internet.

Why so much debate about contract law?

[Anonymous Coward]

Why the debate? Can't common sense rule here? The seller tried to weasel out of the deal he set the terms for, because he later got a better offer. Thats clearly against the spirit of the rules and the laws.

Do we really need find ways to twist and bend this ruling around to apply to all contract law? Isn't this exactly why we hate lawyers in the first place?

Why try and introduce complexity to what is really a simple situation?

Foster's

[Anonymous Coward]

eBay... Australian for screwed.

Thats a good price on a Harvard/Texan

[random coward]

If it is in flying shape its an excellent price on a Harvard/Texan.

Bust a deal

[Anonymous Coward]

Face the wheel.

Re:Bust a deal

[Durzel]

I don't really understand how eBay can claim that auctions are legally binding before money has changed hands. Surely that's the point at which the contract becomes binding?

If I set up a website and put a button on it saying "Click here to own my TV" that wouldn't make it a contract.

This incident is interesting on many levels - could the seller refuse to sell the plane altogether? Surely since no money has (presumably) yet changed hands then the title of the plane is still with the seller, and the judge cannot surely force it to be sold to another party? Could the seller just do what a lot of people tend to do on eBay when they don't want to set a reserve price (as it increases the listing fee) but are unhappy with the winning bid: cancel the auction at the last minute with "item no longer available for sale" and relist it again a few days later ("had a change of plans", etc)..?

Re:Bust a deal

[Anonymous Coward]

Money changing hands is part of the performance of the contract. The contract itself (which is to say, a binding agreement) is formed when there is an offer and an acceptance of that offer.

Your "Click here to own my TV" button would probably be considered an invitation to bargain rather than an offer itself, but there are some limited circumstances where an advertisement to the general public will constitute a legal offer.

This decision doesn't seem all that special, unless you consider eBay auctions as something of a novelty (which I don't, personally).

Re:Bust a deal

[Anonymous Coward]

This is the common misconception of contracts that a poster above discussed. Contracts are valid when both sides present what is called "consideration" in exchange for the other party's consideration. Consideration can include: cash, goods, performance (services), promise of future performance. They become legally binding and enforceable upon a "meeting of the minds" (as courts always call it), which is just another way of saying that all the essential terms of the contract, including *consideration*, have been offered and accepted.

Examples:

You offer your lawn-mowing services in services for a paltry sum of $5. I say, "Sounds great, go ahead." You comply. I pay you $5.
Contract is formed upon me accepting your offer to mow my lawn at $5. My consideration is promise of future performance (I *will* pay you $5) and your consideration is also promise of future performance (you *will* mow my lawn).

Sheriff puts up a poster in town, advertising a $1000 bounty for one John A. Criminal, dead or alive. You apprehend the criminal, and the sheriff pays you. Contract was formed upon your apprehension of the criminal. Your consideration is performance (You never promised you would actually apprehend him) and the sheriff's consideration is promise of future performance (he promised to pay you IF you apprehended the criminal).

Ebay seller puts up an auction. This is what is normally considered an "invitation for offers." Essentially, the seller is saying that the item is for sale, and he would like potential buyers to make him offers. Depending on the terms of the auction, he may stipulate that he WILL sell to the highest bidder. However, the existence of a higher bid means that obligation does not attach. This is called a condition precedent to the contract. This is just like the case of the sheriff offering a bounty.

Seller's consideration: promise of future performance, subject to the condition precedent that you are the winning bidder. Buyer's consideration: promise of future performance (payment of money).

Disclaimer: Nothing in this post constitutes legal advice. I am not a lawyer. I am merely a law student. If you have contract questions, you should not rely on this post -- you need to contact your own attorney who can advise you on your specific legal matter.

WW2 - the dates

[brindafella]

While I'm at it, let me settle this once and for all.

Australians know that World War 2:

a. STARTED on 3 September 1939 with the declaration by Britain, Australia and New Zealand of war on Germany following the latter's refusal to cease hostilities on and withdraw from Poland which had been invaded on 1 September;

b. STARTED on mainland Australia on 19 February 1942 with the bombing of Darwin, the first and the largest airborne attack by Japan against the mainland Australia.

c. ENDED in Europe on 8 May 1945;

d. ENDED in the Pacific Ocean when the Japanese surrendered on 15 August 1945, or V-J day, although it was on 2 September they signed the Japanese Instrument of Surrender which was counter-signed for Australia by General Sir Thomas Blamey (later Field Marshall).

The CA16 Wirraway was manufactured in Australia by the Commonwealth Aircraft Corporation following the pattern of the North American Aviation, Inc. (that was a manufacturer's name) NA-16 trainer aircraft, using locally manufactured versions of the Pratt & Whitney R-1340 engine. First flight was on 27 March 1939, and its later incarnation as the CA16 brought total production to just over 750 aircraft. While it was normally used as a trainer, various armed versions were used in air-to-air fighter combat, generally against slow and lightly defended bombers and patrol aircraft. The Wirraway became the pattern for the heavier CAC Boomerang fighter for which design was started on 21 December 1941 using the Pratt & Whitney R-1830 Twin Wasp engine; the prototype flew on 29 May 1942.

FYI Australia has no reserve price

[Anonymous Coward]

Just to chime in

Australia has no reserve prices EXCEPT automobiles.

The issue at hand is that eBay's policy states that it is not a binding contract since real estate law is different all over australia and the world, so Just because you win, doesn't mean you now legally own it. The person selling it is compelled to sell it, but if their local law says that people that there has to be a 15% tax paid before they can legally get the pink slip, that tax was not disclosed or known before selling it, and the buyer would have the right to back out. This is why eBay doesn't allow surcharges, because anything added after the sale is beyond the buyers control.

Australia, FYI also includes all taxes in advertised prices, by law. So you can't surcharge or makeup taxes or nothing on ebay australia. Australia also has flat rate shipping of 9$ for nearly everything under 3KG, so don't be a dumbass and pay more than 9$ shipping for anything located inside australia. You'd be amazed at how many sellers, let alone buyers don't know this.

Well why not just sell it?

[DelitaTheFridge]

Like, this is a stupid internet auction. If I was the guy, I would have just sold the aircraft to the guy for the higher amount, and said fuck you to the other guy. Like, I guess he loses his ebay feedback, and some street cred, but what are they going to do? Take the aircraft from the other guy?

Re:Well why not just sell it?

[baggins2001]

Yes

Not so simple

[crazybasenji]

Obviously, I'll start with two caveats: 1. contract law is pretty much dependent on the jurisdiction (state) in which residing. 2. eBay is a not a party to the auction or sale. As such, the terms of the contract/auction are dependent upon those contained in listing, seller's SOP, and generally recognized industry customs among others. Therefore, if the listing states very conspicuously that the listing is subject to anything (e.g. availability, reasonable shipping costs, etc), then most courts would honor that restriction. Obviously, the danger occurs when the listing is silent, hence the copious amounts of fine print.

What is a contract....

[Jinjuku]

In 2005 we had a hospital send us a purchase order for software. The IT staff had been using poledit.exe instead of group policies for starters and had trouble getting our software to run under the user account in their all Windows 2003 Domain with XP workstations. You people that know what you are doing will realize what I am saying in the second sentence. Our software will run under the Windows 2000/3 AD user restrictions. So first things first. We offer a 30 day try BEFORE you buy. This is even better than a 30 day money back guarantee since MBG's require you to front money. Needless to say, they have issues getting the product working. We suggest a few ways (including not using poledit, or putting the machines in their own workgroup, to running the product from an encrypted script that elevate privs if they insist on using poledit) which they all said was not acceptable. They don't pay, so to court we go. The basic jist is this: There was a contract to purchase. If you are selling something, and we come to terms, all parties say "YES". DONE DEAL bottom line. Courts will uphold this till the cows come home. We have went to court 5 times now where someone thought they didn't have to pay. We have come out with our money every time.

Re:What is a contract....

[innocent_white_lamb]

I have read your post three times and I still don't quite understand what you're saying here.
 
You offer a 30-day try-before-you-buy, the customer can't get it running to his satisfaction in the first 30 days, and you don't allow him to return in under your 30-day policy?
 
I must be missing something here. What have I not understood?

Re:What is a contract....

[Jinjuku]

You must have not read the part where the sent us a purchase order. My point about the 30 day try before you buy eval is that they obviously DIDN'T. It is TRY B4 YOU BUY. If you bought, you bought.

What about houses?

[Anonymous Coward]

Interesting. We sell a lot of our houses here in Australia at auction. Generally speaking, Australians understand that standing on the street and putting your hand up is a legally binding contract.

However, any auctioner will tell you that a certain number of winning bidders take the "idiot's option" and walk away when the real estate agent walks over with the paperwork and asks them for their deposit cheque.

And the agents don't bother doing anything about it, they just go to the number 2 bidder and start negotiating.

Might be Contrary to US Law . . .

[crimguy]

From an American legal perspective, the the person presenting money to the seller is making an offer, subject to acceptance by the seller. Any advertisement would constitute an invitation to make an offer. Relating this to the case of an ebay auction, a bid might constitute an offer, subject to the seller's acceptance. It gets muddied when the auction ended and the bidder gets a "congratulations" from ebay stating he's the winner. That, in and of itself, might constitute an acceptance by the seller (via proxy).

I have not read any caselaw regarding auctions, online or otherwise. I expect the caselaw surrounding live auctions to be controlling though.

This rationale, while the norm in the United States, does not necessarily follow in other nations - there are clearly two perspective that have a certain amount of validity to them.

http://law.gmu.edu/academics/syllabus/Fall00/LRWA_ Blanton_Fall2000.pdf is the case all the 1st year law students get to read here in the states.

Re:no Reserve

[Dare nMc]

That's exactly what they're hoping for, tho -- auction fever.

I agree reserve sucks, but I do think their are plenty of other reasons for a reserve.

1) judge demand for a custom product, I may need $500 to build one, but I could mass produce at $200 each, if I get interest lower...
2) local sell, friend is willing to buy my car, set a reserve of $5000 sell it to him for the highest bid if the gain isn't enough to risk ebay fraud.
3) re-listing costs money, if I later decide I would part with it for $4500, but my highest bid was $2000, don't bother.

It does piss me off when they have a reserve set at a value over 95% of a "buy it now" price. That is clearly to judge demand at a lower price, but what a waste for the buyer.

simple solution

[BlueParrot]

Sellers: Set a public minimum price and make sure it is high enough that you will be ok selling for that price.
Buyers: Bid the maximum you would pay for an item.

Provided the site is one of the sane ones. i.e the winning bidder pays either the minimum price or the 2nd highest bid ( whichever is higher ) that should be all there is to it. No need to bid in the last minute ( because you DID put your maximum bid, right ? ) and no need to cancel the auction ( because you DID ask for enough money in your minimum price, right? ). If you think you are better of doing it some other way you're fooling yourself.

Re:simple solution

[tomhath]

You're assuming rational behavior by the other bidders, which is not a good assumption.

Many bidders will try to get an item by bidding in small increments until they're the high bidder; that makes no sense to me, but it happens all the time. The only way to defeat it is to wait until the last second before making your (maximum) bid.

Contract with...?

[phorm]

But then, but my understanding of this, any breach of the contract would be an issue between ebay and the buyer/sell, but not between the buyer/seller themselves until the point where the bid becomes a cash transaction?

That being said, ebay could sue or punish a non-paying buyer for breach of contract, or due the same to a sell that doesn't provide the actual item, but I'm not sure the seller could do so to the buyer or vise-versa until the cash transaction is finalized and/or the goods shipped. At any rate, you'd probably need more info from ebay or paypal to go after the seller/buyer regardless.

However, it appears that at least in Australia they've defined that the closing bid seems to mark the "ink on paper" of the contract implied by the ebay system.

I Smell a Meme...

[KevlarTheSleepinator]

In Australia, an eBay ____ is a ____!

Mad Aussies

[N1ck0]

Oh come on, its the law of the land: Bust a deal, Face the wheel!

The eAuctioneer says...

[RealGrouchy]

"Going..."

...

"Going..."

...

"kthxbye!"

- RG>

Wish it were true in the US...

[wirelessbuzzers]

I was trying to buy an out-of-print board game, and prices for the whole game were unreasonable. So I tried to buy two incomplete sets (one missing a few pieces, and one missing half), which should have been cheaper. I won the very incomplete one for almost nothing. The seller didn't ship it for a few weeks, and when I asked what was going on, she gave no reason and refunded my money. I complained to eBay, which did nothing, so I'm now stuck with an incomplete copy.

Re:Wish it were true in the US...

[kiwimade]

A court remedy in the WWII case was a good idea due to the sum of money involved. You could have been in the right, but it just isn't worth bothering with, due to court fees, etc.

Re:no Reserve

[Firethorn]

How does any of those call for a reserve as versus a minimum starting bid?

Unless you're using the auction to perform a market study in disguise, I don't see how just making the minimum bid at your selling point is much different from having a hidden reserve. For example, the friend case would effectively be the starting bid.

Not a new thing?

[joefish_only_one]

I didn't realise that this was a new thing for Australia. The same rules apply here in New Zealand. This has to do with contract law (I studied this for a while).

Technically, this also means (in NZ at least) that a seller must sell you an item if you won the auction, and cannot pull out of the sale. This is hard to follow up however. One time I won a laptop for a rediculously cheap price, but the seller refused to complete the sale. One can complain to the trading site, but because they cannot give personal details out without a court order (and I didn't want to go through the hassle), there is not a whole lot that can be done.

Make a Sale, mate

[who's got my nicknam]

I was under the impression that Down Under slang for vomiting is also "make a sale". As in chunderin'.

...And contracts can be broken

[Anonymous Coward]

The real question is, if one person sues for breach of contract, what kind of damages are they entitled to? Well, ebay doesn't cover that, there is no stipulation for penalties if one party refuses or is unable to follow through in the contract. So if the seller simply said "no sale", the buyer would now have to prove exactly what damages he suffered -- and beyond petty court costs, the buyer would have to claim something like emotional suffering to make the $100k that the seller stands to profit from by selling to the third party look any less appealing.

Forcing the seller to sell that item to this buyer is tantamount to state seizure of the property (or funds from the breaching sale), and I don't think the court actually has the authority to do that in civil cases. The most that the court can do is award damages, and those are practically voluntary to pay (as shown by the OJ Simpson case) if the defendant has little else to his name.

Re:...And contracts can be broken

[nosferatu1001]

In this case it was considered that the item was so unique (1 of 5 in the world) that the only true compensation was the actual item - and yes, the government can (and does) sieze property!

In this case the damage in not having the item was higher than the usual resort of a financial penalty.

Used Airplane Salesman?

[bogidu]

TFA makes it seem as if the guy already had it sold but didn't end the auction (perhaps in hopes of fetching a higher price?). If he did not cancel the auction then he was setting himself up for this exact situation . . . . you don't sell the same item to two people, that's just not polite. If you have it up for auction, then you are stating that the item is still available to be bought.

Another poster had this comment "We are VERY careful to make sure the auctions are canceled before they end if we sell the item elsewhere." Seems to be the difference between an ethical seller and an ubergreedy one.

Duh?!

[bandmassa]

We stick it up lawyers, but really it's the stupid people who try to pull fast tricks, despite the contract that are the problem, really. Would you pay this guy a thousand bucks for a 60 year old warbird? Let alone 150k or 250k! I wouldn't trust him with my garbage, simply because he tried to go outside the clearly explained eBay terms.

I'm not selling it

[ghostbar38]

You can always say I'm not selling it or say I don't want to sell this to you, there's nothing that forces you to sell the item to that person...

BS - No Lemon Law in US

[unassimilatible]

There is no "lemon law" in the US. Contract law in the US is predominantly state-based and there are 50 states. Some states have them, some don't. California, for example, does not.

There are some federal warranty laws and there is the UCC (adopted by all states but warranties can be expressly rejected by seller). But no lemon law on the fed level. YMMV depending on what state you are in...