Re: Help: outbid but still won!


"Peter Parry" <peter@xxxxxxxxxx> wrote in message
news:krmh43phvjlrim1su8cd8krgnr2ctnt0to@xxxxxxxxxx
On Mon, 14 May 2007 21:30:41 +0100, "michael adams"
<mjadams25@xxxxxxxxxxxxx> wrote:


"Peter Parry" <peter@xxxxxxxxxx> wrote

Most companies didn't exist when the Sale of Goods Act was drafted.
It doesn't mean they have a choice in whether or not to adhere to it.

You are extraordinarily repetitious but I hope you won't mind if I
only answer this next point once.

That's besides the point. The question here is whether eBay in its
present form, and some or all of its members are indeed subject
to every provision of SOGA and the DSR.

Of course they are; as is every trader and every private seller in
every venue. It requires no court case for that.

....

You don't really seem understand much about the Court system do you ?

One function of the Courts is to test legislation. Defendants barristers
try and find any loopholes and exceptions which were overlooked when the
legislation was drafted by the Crown barristers. Which if they are
sufficiently serious, will require the legislation to be re-drafted.

....


Claims as to whether they are or not made by posters on Usenet have no
force or status in Law.
And as far AIAA are yet to be tested in Court.

The only thing to test, in some cases, is how the various obligations
are to be met. In most it is so straightforward that no
interpretation is required.

....

a) In other words they havn't been tested.

A straight "yes" or "no" will suffice.

....


Nobody is under any obligation to use any shop - it doesn't remove
from all shops the need to comply with the law.

That's besides the point.

It is exactly the point and one you seem determined to avoid.


....

See a) above.

....

No one said anyone has a right to membership. If however eBay tried
to remove an existing membership simply because someone successfully
enforced their legal rights then that is a different kettle of fish.

A different kettle of fish in what way ? Who exactly is going to
initiate an action, against whom,

If eBay, as a matter of policy, tried to remove from their membership
all those who decided to enforce their legal rights against traders
not complying with the law how long do you think it would be before
the OFT and TS became involved?

See below.


and on what grounds ?

Statutory Instrument 1999 No. 2083

The Unfair Terms in Consumer Contracts Regulations 1999

An unfair term is one that creates a significant imbalance in the
parties' rights under the contract, to the detriment of the consumer,
contrary to the requirement of good faith.

A term is most likely to cause an imbalance if it has the effect of
reducing the consumer's rights under the ordinary rules of contract
or the general law. For example they either stop consumers from
making certain sorts of legal claim against the business which they
could otherwise have made, or give the business rights against the
consumer that it would not otherwise have had.

Er how can anyone stop anyone else from pursuing legal claims
against any other business ?

Nobody is being threatened here.

Cancelling somebody's memebership, merely has the effect of
preventing them from enaging in any further business on eBay
and thus giving them no futher opportunties to make yet further
vexatious claims against eBay members.

The point you seem to have totally overlooked in this is the
eBay has no incentive to bargain with, or placate any of these
complainants. As its not in eBay's interests that they
should continue as members in any case.

....



More especially the membership of those who are given to causing alarm
and distress to its members by threatening them with - in eBay's opinion
having maybe sought the opinion of Learned Counsel on the matter -
mischievous and vexatious threats of civil actions and prosecutions which
are
bound to fail, and similar annoyances

How about actions which are bound to succeed?

....

I refer to your not aswering of question a) above

None of these provisions has yet been tested in Court.

....


So if you ordered and paid £500 for a new and working gizmo and were
delivered a used and non-function gizmo you would just smile and say
"Ah well, I'm stuffed, the seller was just getting on with it and not
worrying two hoots about any laws"?

I'm talking about someone bidding for a perfect Gizmo on eBay for £500,
and then buying another one before the auctions ends, winning the first
one, and then trying to wriggle out of paying for it. By any means
possible.

If a sale on eBay was an auction (which it isn't) a higher bid
eliminates an earlier one. Cancellation of the higher bid does not
re-instate the earlier one. If it is an agreement to sell the
condition (of being the highest offer) fails when a higher offer
appears and cannot be re-instated without a counter offer. There is
nothing to wriggle out of.

As it is the trader selling the goods has (almost certainly) failed
to supply the necessary information on right of return so the seller
can, for no stated reason, repudiate the contract and recover all
their costs and require the seller to recover the goods at their own
expense. It is pretty simple really.

....

It's only simple if eBay falls under either of the two categories
which you've just outlined.

That question has yet to be tested in Court I belive.

....

"Ignorance of the law excuses no man: Not that all men know the law,
but because 'tis an excuse every man will plead, and no man can tell
how to refute him" John Selden (1584 - 1654). That was a bit before
EBays time as well.

That isn't intended to offer carte blanche for opportunistic prosecution
of the unwary.

Nor for ignorant sellers to try to pretend the law doesn't apply to
them.

....

There is no "pretend" about it.

It is for the complainant to first prove their case in Court. Once a
precedent has been established by such a test case then sellers
will then indeed be in a position of ignorance if they choose to ignore
such precedents.

The "Ignorance of the Law" in this case would apply to any buyer who
was persuaded to engage on a speculative Court Case on the advice of a
Usenet "Expert" which there was no guarentee of their winning,
in the hope of trying to save themselves just a few quid. When all
they need do is resell the item.


michael adams

....



--
Peter Parry.
http://www.wpp.ltd.uk/


.

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