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Sold brand new item on Craigslist. Buyer accusing of item not brand new - Small Claim

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aUser

Junior Member
What is the name of your state (only U.S. law)? Virginia

Dear friends:

I request legal guidance in my situation that will be quite helpful:

I had advertised a brand new camera to sell on Craigs list. This I had purchased from an online site and decided to sell it instead of using it. I had not opened it at all. Though its box didn't have any seal as the electronic boxes are coming these days which is kind of not good. I advertised it on Craigs list as a "Brand New" camera and this prospective buyer was interested in it. She mentioned that she had the very same model and that got stollen and she liked it very much. She was coming to pick it up and I assumed that she had agreed on my asking price as she didn't negotiate price prior to coming. When she showed up she mentioned that she though she had the full asking price but found that she had $20 short. I mentioned to her that she could pick up the remaining from an ATM very close to my house on which she asked me if I could just sell it for $20 less. I thought about it and then agreed to sell it. She didn't open the box to inspect it and just paid me and took the camera with her.

When I got up next morning, I saw an email from her that she found a small empty case which she claimed that it seemed to be an empty case for the memory card. I looked at my ad which had listed the contents of the box (which were listed on the back of the camera box) and found that there was an empty battery carrying case included in the box so I mentioned to her that it was supposedly that case (there was no memory included with the camera). However she maintained that she had that case and also an empty memory card case also which prompted her to think that this box was opened and the camery was not Brand new camera. I emailed her, sweared to her that the camera was brand new as I received from the online store and that I had never opened the camera box or used the camera at all. Also, I suggested to her that sometimes the vendor misses putting somthing in the box for which they allow for the customer to call and will send the missing item at no cost. Similarly, they may have mistakenly had this empty memory case as a human error. But she has just got this suspicion that the camera is not brand new and wanted me to take it back and give her money back.

All our correspondence has been via email at this point. I asked her about how she found the camera and whether it was packed as factory packed on which she mentioned that the camera was in its sleeve but it was not sealed in the sleeve and she mentioned that the camera seemed to be opened as well which she mentioned "voilated the terms of my advertisement which stated that the camera was Brand New". But I have seen that electronic items are generally wrapped in a sleeve and many a times they are not sealed but just wrapped. As I had not opened the box, I am sure that the camera was factory wrapped and brand new as I received it from the online site. I mentioned to her that she should have checked the contents of the camera at the time she came to pick it up and also that I don't have a return policy and that if I took the camera back and refunded her the cost money, I will be at a loss as I will not be able to advertise this camera back on Craigs List as "Brand New" and the used price is usually almost half of the new camera's price!

I have maintained that I sold her Now this lady is threatening me that she is going to go to the small claims court (in Virginia) and mentioned that it will be my burden to bear all costs which will be $36 to file a case and $12 to serve me the notice. She also claimed that she knows the law and that I will have to burden to prove that my product was brand new. My main point to her was that she had full rights to inspect the contents of the camera which she decided not to and now, she doesn't trust me on my claim that it was a brand new camera. Similarly I don't trust her that she will bring the same camera to court that I sold her. How can she prove that the camera she brings to the court was the one I sold her?

My question is I am looking for legal advice on my situation and to get an idea whether I have a strong case that may go in my favor or she has upper hand? She hasn't claimed that the camera was used or defective and just stuck with saying that this sale violated my ad that said it was Brand New but because she found an empty memory case, she thinks it is not brand new. I even asked her that it looks like she may have just changed her mind and wants her money back with this lame excuse for which she agreed (in email) that she just wants her money back even though if she checked the camera, she will find that it is in fact Brand New! But she is just looking to get refund which I don't agree to as I can't relist this item again as Brand New and will lose money if I list it as used now!

Please help me make a decision as to what will be my best option to move forward. Should I let her move forward with the small claims case which she said she will file on Tuesday (11/23/2010) if I don't refund her money back. My other option may be to offer her to refund her full money minus 30% as I will lose money not been able to relist this as "Brand New". Please help. Thanks.

What is the name of your state (only U.S. law)? Virginia
 
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justalayman

Senior Member
first, it is just as brand new now as when you had it. As soon as you purchased it from the original retailer, it was no longer considered to be "brand new". At best, it was "never used" but it wasn't brand new.

Second, since you did not look at the actual camera and you admit there was no seal, you have no idea what was in the box.

As to anything missing that should have been there: she cannot make a claim with the store you bought it from because she is not the original purchaser. You would have to do that. So, if you claimed it was "brand new" and there is something missing that is supposed to be there, it is on you to replace whatever is missing.

. My other option may be to offer her to refund her full money minus 30% as I will lose money not been able to relist this as "Brand New".
Not a chance of that happening. You have no right to hold back anything. You either rescind the sale or take your chances with her suing you.
 

aUser

Junior Member
Hello,

Thanks for your quick response. I understand your point. However, as I mentioned in my post, there is nothing missing that she is accusing me of. She is saying that there was an emptry memory card case which was not supposed to be in the box as the camera didn't include a memory card in the first place. So she says that the fact that she found this empty case which was not supposed to be there, she is thinking that the camera is not "Brand New". However she has not mentioned that there is anything wrong with the camera as such and my reasoning was that it could be a human error at the time of packaging that this unfortunate empty memory case ended up on that box which I didn't put (swear). Also, I have no way to believe if she is telling the truth that she found this case in the box. She didn't open and checked the contents of the camera box in front of me when she came to pick it up. I suspect that after purchasing this, she may be having a cold feet or found a better deal and just wants to get out of this deal and get her money back by giving this lame excuse! However, if I refund her the total amount, I can't sell it as "Brand New" any more and will lose money if I list it as used/open-box item because its price drops significantly if listed as used/opened! Alternately, do I have an option to offer her to refund her money that she paid MINUS around 30% (Similar to "Restocking fees" some stores charge for open box item returned back to the store). As mentioned, there was not agreed upon return policy that I agreed upon with her and she has not indicated anything wrong with the camera as such. So on what grounds is she threatening to sue me. The camera in that box was never opened or used as I swear and can swear on the bible in the court or on a lie detector test if they administer anything like that. Please advise. Thanks for your time in looking at my issue.
 
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Dave1952

Senior Member
You seem to be saying that the "Brand New" product that you bought had, in fact, been opened and a memory card case was placed inside. Who knows what else happened to this camera? It clearly was not brand new when you bought it and it was not brand new when you sold it.
Don't go to court. Give her back her money. Then decide what to do with this camera.

Good luck
 

justalayman

Senior Member
However, if I refund her the total amount, I can't sell it as "Brand New" any more and will lose money if I list it as used/open-box item because its price drops significantly if listed as used/opened!
So, what would you have done if she did open the box at your place of sale and decided she didn't want it? It would be in the same condition as it is now. As I said; once you bought it, it is not a new product. The first sale has already happened so it is now technically not a new product. It may be unopened or not used but it is not a new product.

Alternately, do I have an option to offer her to refund her money that she paid MINUS around 30%
You can offer it but she has no requirement to accept your offer. 30%? I have never seen any retailer charge such an extreme amount as a restocking fee. Unless you included such terms in your terms of purchase, you do not get to unilaterally impose it now.

The thing is; you have no requirement to rescind the sale under a typical situation. The problem is; she is claiming you misrepresented the product and if supportable, that does give her the right to demand a rescission.

So, you are at a place that you either negotiate a return or tell her to go away. She then has to decide whether to give up or sue you. Who would win in court? You would have to be psychic to know.

I suspect there is a good chance you would win unless the buyer could show the judge some proof of her claim it is not as you represented. With a fairly new object, that could be quite difficult but, who the judge believes could play a huge part in their decision as well.

One thing that would make a lot of difference in all of this which I cannot find in your original post:

who and where did you buy the camera from. I have been under the belief it was from an authorized retailer of the manufacturer. If it wasn't, all of your arguments just got really weak.
 

xylene

Senior Member
Justalayman said:
The problem is; she is claiming you misrepresented the product and if supportable, that does give her the right to demand a rescission.
I disagree with the relevance of this 100% in this case. For several reasons.

"Brand New" what does that mean? First Sale? Never used? :confused:

The sellers claim that an item is new is not an implied warranty or guarantee of fitness.

The camera missing a part does not support the buyers contention the camera was 'not new'. We are talking about a teeny microchip. It could have been dropped when opening the goods.

The buyer has no case.

Although I similarly can't stress enough that there is no basis for an arbitrary 30% restocking fee.
 

aUser

Junior Member
My response to all your responses.

Hello,

Thanks for all your prompt responses. I agree that 30% is extreme to charge but my only concern is if I agree to take it back, I have not idea if she is returning me the one I sold her (forgot to note its serial number). She mentioned when she came that she had the same model which got stolen and she liked it very much so she wanted to get this same one.

Also, just to clarify, a memory card was not supposed to be included in this sale as it was not mentioned on the camera box regarding what all items are included in the sale. So she is claiming that the fact that she found an empty memory card case which shouldn't have been there, this indicates to her that it is not brand new! I even asked if she found any issue with the camera, to which she didn't say that she found something but just mentioned that the camera was losely wrapped in its sleeve and seemed to be opened! But that doesn't indicate that it doesn't work or that it was not new or ever used.

Now, if I run my imagination wild, may be she planned this all to turn out just as it has. May be her own camera broke and she is just playing with me by asking me for refund and in turn return her defective camera instead of the one I sold her which was brand new.

My question is when she picked it up, she didn't open and inspect the box and it was clearly visible that the box didn't have any seal (as it came from the vendor - US Appliances web site from where I purchased it as a new camera). So the fact that she walked with the camera without inspecting it in front of me, and then just created this story herself that she found an empty memory case which I can't verify now that she already walked with it without checking in front of me. Also, you mentioned that if she had opened and checked in front of me, at least that item was in front of me and I could have witnessed it myself and may be that deal didn't take place due to this fact that there was an empty memory case in the box. But that would have been better because I know that it was my camera that remained with me. But now if I agree to refund, I am not sure if she will return my camera or any other camera or may be her defective one that she wanted to replace by playing this game! Who knows!

So if she takes me to small claims court and tells her story, who is the Judge to believe? Also, how can it be proved that the camera that she takes to court as evidence is in fact the one I sold her. She could just bring any camera as specimen and I have no way of proving it is not mine but can I raise this to the judge that she needs to prove that this is the camera I sold her?

I feel that the fact that she walked with the camera without inspecting it when she paid for it, indicates that she was fine with it so how can she then raise this issue when there is no witness that she found that empty memory case in it which shouldn't be there? So now the question is whose story will the judge believe? Mine or her? Any comments? Thanks for your responses so far.

Also can I just say that I don't have a return policy by default if not specifically put on my ad? If it was not agreed upon between the two parties, how are the craigslist transactions bound with any liability for returning an item. Also, here the case is not that the item is found to be defective. It is only that she is questioning my ad regarding the "Brand New" clause that she feels was voilated by the presence of that stupid empty memory case which was not supposed to be in the box. My reasoning to her on that was that I had not opened the box myself and it could be a human error while packing the camera & its accessories but that doesn't make the camera "not brand new" if it was not opened and used. What say? Thanks.
 
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justalayman

Senior Member
I disagree with the relevance of this 100% in this case. For several reasons.

"Brand New" what does that mean? First Sale? Never used? :confused:

The sellers claim that an item is new is not an implied warranty or guarantee of fitness.
e.
this has nothing to do with implied warranties of merchantability. It is completely predicated on misrepresentation of the item.


and btw: new means new. I used to sell real estate and was warned to never advertise a roof as new because the day after it was installed, it is no longer new. It was then 1 day old. There were lawsuits won over that simple definition. A new water heater, new carpet, new paint, all the same even if never actually used.

water heater- new in 2009, carpet- newly installed after owner moved out, recently painted

He could advertise it as "like new", "never used" "factory unopened packaging"

but once it goes to the first sale, it is no longer "new". The first owner is the only one that buys a "new" product. After that, it is like new.


but I will agree that that is a limited argument as the buyer accepted the term in the manner the OP intended if the camera was simply never actually used.
-------------------------------------------------------

May be her own camera broke and she is just playing with me by asking me for refund and in turn return her defective camera instead of the one I sold her which was brand new.
yet you expect her to accept your word.

.
So she is claiming that the fact that she found an empty memory card case which shouldn't have been there, this indicates to her that it is not brand new!
actually, I am on her side with this. Not sure what you are referring to as a memory card case but if it wasn't supposed to come with the camera, finding it there is very odd. Your suggestion of it falling into the box while being packed is simply your imagination. You have no idea if it is even possible let alone likely.

My question is when she picked it up, she didn't open and inspect the box
nor did you when you got it from us appliances. Maybe they screwed you. Since you didn't inspect the camera, you surely cannot deny the possibility.

But now if I agree to refund, I am not sure if she will return my camera or any other camera or may be her defective one that she wanted to replace by playing this game!
and how does she know you didn't scam her? You make a lot of insinuation for a person that has absolutely nothing to suggest the other party ever considered such an action. It seems only when your honesty is questioned, you start throwing out unsupported suggestions of why she might do this or that. Every thing you say about her can just as easily be suggested of you. Barring any evidence from either side, all it is is innuendo.

I feel that the fact that she walked with the camera without inspecting it when she paid for it, indicates that she was fine with it so how can she then raise this issue when there is no witness that she found that empty memory case in it which shouldn't be there?
So, if you went down to best buy and bought a $3000 television, you would open it before ever leaving the store? Do you do that with every single item you buy? If not, your argument is ridiculous. You would be arguing she should have taken safeguards that you yourself do not take.

Also can I just say that I don't have a return policy by default if not specifically put on my ad?
yes but misrepresentation cannot be defended by your return policy.


If it was not agreed upon between the two parties, how are the craigslist transactions bound with any liability for returning an item.
each one would have to be considered individually but regardless, misrepresentation would still override just about any return policy.

It is only that she is questioning my ad regarding the "Brand New" clause that she feels was voilated by the presence of that stupid empty memory case which was not supposed to be in the box
and I agree. There is no reason for anything not intended to be in the box from the manufacturer to be in the box. I would suggest that this is a used camera. Whether it was by you or some other customer that might have returned to to US appliances or even somebody at US appliances itself, the only reason I can see such an item would be in the box would be because somebody had in fact used the camera and when returned or sold failed to remove the empty packaging of an item that is required when using the camera.

My reasoning to her on that was that I had not opened the box myself and it could be a human error while packing the camera & its accessories but that doesn't make the camera "not brand new
If you want to use that argument, I suggest you get some information from the camera manufacturer to see if that is even possible. Unless you have that, all you have is a suggestion without any evidence to support it is even possible.

and I seriously doubt it is actually possible anyway. Unless that specific brand and model of card is available in that camera package at some time, it is unrealistic to believe they might even be in the same factory let alone where it might fall into a box as it was being packed.


if it was not opened and used
but you admit there was no factory seal and since you did not inspect the camera, there is no way you can honestly claim it hasn't been opened or used.
 

aUser

Junior Member
Thanks Justalayman for your honest responses. I agree with your side of view point. So what do you suggest I should do that will be in the best of my interest?

I have only one comment regarding one of your arguments:

<Quote>
So, if you went down to best buy and bought a $3000 television, you would open it before ever leaving the store? Do you do that with every single item you buy? If not, your argument is ridiculous. You would be arguing she should have taken safeguards that you yourself do not take.
<Quote>

Well I normally don't have to open and inspect an item fully when purchased from a store because they have advertised return policies which I didnot have or advertised in my advertisement. Secondly, when you buy from a store, you pay the premium price for the product so you expect that kind of service for returns, etc. However, on the other hand when you buy from Craigs list, the cost of the same "brand new" (or I should correctly say "factory unopened packaging") is almost 50% to 60% of the price that one will pay in the store. So whoever purchases items on Craigs list is aware of this risk that the item may not turn out to be what he/she expects and that risk is rewarded with discounted price. In most cases it works out well so it is a win-win situation. So your mention that we should do the same in store is not account for but if I will go to buy a piece of electronics through an ad in craigslist, I will surely turn it on and use it and try to make sure that it seems to work fine. Similarly, many times, I have had to open my item that I was selling as new to a buyer after he/she has paid for it to turn it on for his/her satisfaction. And I fully understand that and make sure that the customer is fully satisfied when he/she leaves my drive way. So that way, I give the customer fair chance to be fully satisfied. However, in this case, she never asked to inspect the product and was visually aware that the product was not sealed. So I don't understand how she later claims that she is having issues and that is not with the product but the condition which I had advertised it to be. In fact, I hate that the electronic vendors these days are not selling their products factory sealed. My Panasonic Lumix camera that I sold in this sale came without seal. A Vizio TV I purchased from Walmart and another one on Amazon.com both came without any seal. I don't understand how the vendor/manufacturer could not seal their product! Where are the days when each electronic product used to have a manufacturer specific "original" seal which if broken, you were not supposed to buy the product! If it was sealed, then this situation would not have arisen in the first place!

Thanks for your input. Please advise what I should do in the light of all this information. She had mentioned that she will file for small claims case tomorrow afternoon (11/23/2010). Please suggest. Thanks. Have a nice evening.
 
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justalayman

Senior Member
Well I normally don't have to open and inspect an item fully when purchased from a store because they have advertised return policies which I didnot have or advertised in my advertisement. Secondly, when you buy from a store, you pay the premium price for the product so you expect that kind of service for returns, etc.
price is irrelevant. to the other point; what would happen if you ended up with a returned item that got resold to you and the guy that returned it scammed best buy buy putting an old unit in the box.

Now you would be in the same situation as your buyer. Why would best buy believe you? I can point you to another forum this exact thing happened with a guy buying a $300 faucet for his sink and now Home Depot is (so far) refusing to accept the return or exchange the used item. They are saying: how do we know you didn't just swap the new faucet with one of your old faucets and claim it was like this when you bought it.

Unless you could prove that is what happened, you lose.

So whoever purchases items on Craigs list is aware of this risk that the item may not turn out to be what he/she expects and that risk is rewarded with discounted price
no. there is no assumption of risk just because a person isn't paying 100% of retail. Price has nothing to do with it. If you represent an item in a specific manner, unless that is accurate, you have misrepresented the item and you have to accept the return of the item with a full refund.

.
I don't understand how the vendor/manufacturer could not seal their product!
Maybe it was originally sealed and somebody along the line used the camera and returned it or somebody in the store used it and simply repacked it. The lack of a seal hurts your defense because you did not inspect the camera to ensure you got what you paid for and you sold what you though you sold.

Please advise what I should do in the light of all this information. She had mentioned that she will file for small claims case tomorrow afternoon
that's really up to you. Honestly I don't know who would win if this went to court. It could go either way from what I see. As such, the most you are going to have to give the buyer is rescind the sale and the court costs. At most, you win. If you are willing to risk whatever court fees are, there is little reason not to go to court. Effectively, the most you will be out are the court fees.
 

aUser

Junior Member
Thanks Justalayman for all your time and honest input. I will see how this turns out today whether she contacts me to notify that she is filing the claim in small claims court or just decides otherwise. I have just one last question:

This sale was advertised for $150. When she contacted me, she never negotiated the price but when she showed up, she said that she thought she had full money but just found that she is $20 short (as I explained in my original posting) on which I mentioned to her that a bank atm was right about the corner on the next signal and she could bring the difference from there. But she was not willing to do that and wanted to buy for $130. I had to decide quickly and I did and agreed for the sale. Now if this case goes to court and if I lose what if she says that the item was advertised for $150 and thats what she paid me and wants back from me. How do I prove that she paid me only $130?

This thing could just get so hairy!! I never expected. Please provide your opinion on this situation if this arises which I won't be surprised if she goes to that extent!

Also, regarding sealed items, as I mentioned earlier, I bought a Vizio TV brand new from Walmart and it was not sealed at all. Similarly I had purchased another TV on Amazon.com and to my surprise, it was shipped in similar state (without any seal!). It could very well be opened in transit and I won't know! I don't know what has happened with the manufacturers for not putting the damn cheap seal which could atleast deter someone from opening it! Just a thought. Thanks.

<Quote>
price is irrelevant. to the other point; what would happen if you ended up with a returned item that got resold to you and the guy that returned it scammed best buy buy putting an old unit in the box.

Now you would be in the same situation as your buyer. Why would best buy believe you? I can point you to another forum this exact thing happened with a guy buying a $300 faucet for his sink and now Home Depot is (so far) refusing to accept the return or exchange the used item. They are saying: how do we know you didn't just swap the new faucet with one of your old faucets and claim it was like this when you bought it.
<Quote>

If you could provide the link to your above mentioned case on another forum, that will be helpful. Please provide that link. Thanks.
 
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Dave1952

Senior Member
If this is "hairy" it's because you are making it hairy. Rescind this sale, check the camera (now opened) carefully, re-advertise, and sell it. Make clear in your ad that you are selling "as is" and with no warranty.

Good luck
 

justalayman

Senior Member
How do I prove that she paid me only $130?
well, hopefully you wrote a receipt and maybe even made a copy for yourself. If she sues for the $150, you explain what happened and let the judge decide if there are no receipts.
 

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