The cheapest Streamer Stage II I've ever seen!

[gareth]

[quote name='warwickhunt' post='1337876' date='Aug 12 2011, 04:44 PM']When you place something for sale through the ebay auction medium you are by definition entering into a contract with the buyer as per ebay's T&C. Failure to complete the sale is breaking that contract (which by the act of signing up to ebay you have agreed to); it is then a contract as per any contract that you either agree to in writing or verbally and there is a civil case for the breaking of that contract.[/quote]

You are absolutely right

BUT if the seller refuses to sell, enforcement of the contract will be costly in terms of legal expenses or illegal if you attempt some other forms of enforcement such as the ones to which have been suggested

[Maverick]

[quote name='warwickhunt' post='1337876' date='Aug 12 2011, 04:44 PM']When you place something for sale through the ebay auction medium you are by definition entering into a contract with the buyer as per ebay's T&C. Failure to complete the sale is breaking that contract (which by the act of signing up to ebay you have agreed to); it is then a contract as per any contract that you either agree to in writing or verbally and there is a civil case for the breaking of that contract. However, the onus is on the buyer to initiate any proceedings as ebay will not act. Do you know otherwise?[/quote]

Yes, I think so, although it's over a year since I did contract law so I may be a bit rusty. It's not exactly a clear area though.

For starters, eBay's user agreement doesn't expressly state precisely when a contract is formed. Even if it did, the UA is part of a contract between you and eBay and isn't necessarily enforceable by a third party (it is possible, but I don't think that it would be here), only by eBay themselves, which is what eBay's complaints procedure is there for, it doesn't necessarily reflect the actual legal position.

The general position of the law on both auctions and goods offered online is that they're invitations to treat, and that the buyer makes the offer by bidding/clicking the buy button. In an auction, the auctioneer has the authority to accept the offer, and so a contract may be formed as the hammer falls. Online, the contract isn't actually formed until the seller accepts it, either expressly (note that an email confirmation that your order has been received probably isn't enough) or by their actions in undertaking to provide the goods or services advertised, otherwise they may reject the offer and return your payment. Now, there are exceptions to both of these general positions, but they usually require that the seller make it clear that their listing is intended as a legal offer (not necessarily with those words, but on a reasonable reading), so it's possible that if you worded an eBay listing carefully you could make it an offer but I wouldn't be entirely certain of this. In theory then, it is for the seller to accept the offer made by the buyer and then a contract will be formed.

It is a bit of a grey area and I don't think there's any authoritative case law dealing directly with eBay (although I haven't studied cyberlaw, I can't find any in my contract casebooks or on westlaw), and with a quick search I can only find a few forum posts about eBay small claims cases, none of which have any real details to them. Personally, I'd question whether the ebay listing (in the case of an auction at least) itself has anything to do with the formation of the contract, rather I'd say it's more about the dealings afterwards. If a buyer proffers payment and the seller accepts it, then you clearly have a contract formed which in the case of a failure to supply the goods would then be enforceable, and possibly a criminal matter also. Short of that, it'd depend on the communication between the two parties and would likely be difficult to prove that a contract has been formed. I may be wrong with this, but in practice it's certainly the only point you can be absolutely certain that a contract exists.

However, even if it is a contract, there's another sting in the tail and that is in the remedies available for breach of contract. Usually (supposedly), courts are quite reticent to enforce a contract through specific performance where one party is unwilling, except in special circumstances -ie, if the item is a total one off. More usual would be damages, which would be intended to be sufficient for you to obtain a like for like replacement, which would essentially be a refund (if the buyer has refused to return your money) and possibly the increased cost in securing a like for like replacement. Now, given the costs (although they may be covered if you're successful) and hassle involved, if you've got your money back then it's unlikely to be worth it.

Edited August 13, 2011 by Maverick

[warwickhunt]

Couldn't argue with anything you have stated Maverick, not that I intended doing so, as ebay is a bit of a joke anyway, but I love the fact that in ebay's T&C it has a statement to the effect that if you have a dispute with a buyer/seller it automatically exonerates ebay from any blame (see below)!

[b]Release

If you have a dispute with one or more users, you release us (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.[/b]