Sue Ebay non selling seller in small claims court

[tranquility]

I am uncertain why we go through this each time there is an e-bay issue.

Is there a contract? By my understanding, yes. Does anyone have a different opinion?

What are the damages? Well, since this was for the sale of goods, let's go to the UCC. Does anyone have a different opinion? While other remedies may apply, I like:

§ 2-713. Buyer's Damages for Non-delivery or Repudiation.
(1) Subject to the provisions of this Article with respect to proof of market price (Section 2-723), the measure of damages for non-delivery or repudiation by the seller is the difference between the market price at the time when the buyer learned of the breach and the contract price together with any incidental and consequential damages provided in this Article (Section 2-715), but less expenses saved in consequence of the seller's breach.

(2) Market price is to be determined as of the place for tender or, in cases of rejection after arrival or revocation of acceptance, as of the place of arrival.

As to if the buyer needs to pay before there is a breach by the seller. Look to:

§ 2-610. Anticipatory Repudiation.
When either party repudiates the contract with respect to a performance not yet due the loss of which will substantially impair the value of the contract to the other, the aggrieved party may

•(a) for a commercially reasonable time await performance by the repudiating party; or
•(b) resort to any remedy for breach (Section 2-703 or Section 2-711), even though he has notified the repudiating party that he would await the latter's performance and has urged retraction; and
•(c) in either case suspend his own performance or proceed in accordance with the provisions of this Article on the seller's right to identify goods to the contract notwithstanding breach or to salvage unfinished goods (Section 2-704).

Although e-bay auction will have it's terms in the offering, clearly there is not tender here. There has been a repudiation in fact and not just in anticipation. If the OP really wanted to protect himself he could make a written demand for the item. That would dot the i for the breach.

For a more complete discussion, see:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=899795

 

[Mass_Shyster]

Thanks for replying, that is a great answer. In regards to the market price, I would argue this seller did not market his item properly and has limited feedback, therefore the item sold for a below market price. Its also a large piece of equipment that could be damaged easily in shipping, so only bidders with close geographic proximity might bid. The machine also sells for $19k brand new, a price point I can establish using manufacture's sales literature. This piece of equipment also generates cash flow, I could establish value using a reasonable discounted cash flow argument. Please let me know if you think a judge would agree with my arguments.

The asking price of an item is not necessarily determinative of its value. The best way to determine market value is recent sales of like items. If ACME regularly sells them for $9K, that is good evidence, but still not absolute proof.

The $19K price tag on a new unit has little bearing on the value of a used one. Some items (like computers) depreciate particularly fast. I threw a $50K server in a dumpster five years later because I couldn't sell it for scrap.

If you can show that the 'almost identical' unit sells for $19K when new, and the one you didn't get unit also sells for $19K when new, that may be evidence of the value, but again, not absolute proof.

Your argument that the seller didn't market it properly could be construed as you trying to take advantage of him.

There's no way to determine what a judge would decide based only on a small part of one side of the story.

Even if the judge sees it your way, it is still within his/her power to put both parties in pre-contract position.

 

[Mass_Shyster]

the seller wont reply to the request or release their address.

Without the seller's address, you cannot sue.

 

[Mr. Fusion]

The answer is NO; you have no claim either monetary or to the item.

Your contract is with eBay, not the seller. Read the Terms and you will see eBay declines any responsibility. If eBay wants to punish the seller, that is up to them.

Since there has been no money changing hands, there has been no agreement between you and the seller and thus, no damages for you to claim. You can't get something for nothing, there must be a trade or exchange of similar, agreed value.

Sorry, but the best you can do is call the seller a few choice words under your breathe and report him to eBay.

 

[Mass_Shyster]

Your contract is with eBay, not the seller.

According to the terms of serivce: "We are not involved in the actual transaction between buyers and sellers. "

So there are three contracts in place. One between buyer and Ebay, one between seller and Ebay, and one between buyer and seller.

 

[rdr78]

Without the seller's address, you cannot sue.

I have the full name (f,m+l) of both the husbund and wife, their phone numbers and the city they live in. I can track them down with this information.

 

[rdr78]

The answer is NO; you have no claim either monetary or to the item.

Your contract is with eBay, not the seller. Read the Terms and you will see eBay declines any responsibility. If eBay wants to punish the seller, that is up to them.

Since there has been no money changing hands, there has been no agreement between you and the seller and thus, no damages for you to claim. You can't get something for nothing, there must be a trade or exchange of similar, agreed value.

Sorry, but the best you can do is call the seller a few choice words under your breathe and report him to eBay.

I'm reading tranquility's cited post differently, how to you interpret the UCC?

 

[rdr78]

The asking price of an item is not necessarily determinative of its value. The best way to determine market value is recent sales of like items. If ACME regularly sells them for $9K, that is good evidence, but still not absolute proof.

The $19K price tag on a new unit has little bearing on the value of a used one. Some items (like computers) depreciate particularly fast. I threw a $50K server in a dumpster five years later because I couldn't sell it for scrap.

If you can show that the 'almost identical' unit sells for $19K when new, and the one you didn't get unit also sells for $19K when new, that may be evidence of the value, but again, not absolute proof.

Your argument that the seller didn't market it properly could be construed as you trying to take advantage of him.

There's no way to determine what a judge would decide based only on a small part of one side of the story.

Even if the judge sees it your way, it is still within his/her power to put both parties in pre-contract position.

Yes, the new machine and this machine are the same make/model, they have the same exact specs.

 

[Mass_Shyster]

Yes, the new machine and this machine are the same make/model, they have the same exact specs.

How about the $9K machine?

Will the seller claim it is worth much more because <insert reason here>?

 

[rdr78]

How about the $9K machine?

Will the seller claim it is worth much more because <insert reason here>?

Prices above 9k-10k do not make sense financially (DCF) unless you have a prime location. Most of the prime locations are taken, so the seller could argue its worth more, but without a contracted prime location, justifying a higher price would be difficult.

 

[Mass_Shyster]

Prices above 9k-10k do not make sense financially (DCF) unless you have a prime location. Most of the prime locations are taken, so the seller could argue its worth more, but without a contracted prime location, justifying a higher price would be difficult.

You said the $9K machine is almost identical to the one you tried to buy for $4.5K. My question is "What reason with the seller offer as to why the $9K machine is worth $9K, and his machine is only worth $4.5K"

The bottom line is this:

In order to prevail, you must show (more likely than not) that you have a loss that the seller is liable for, and show (more likely than not) the amount of that loss.

I agree that the UCC covers this transaction. Others do not.

I agree that (if things are as you say) you are entitled to the difference between the fair market value of the machine, and the $4500 that it would have cost you, had the seller not breached.

So you've sold me on the liability. Now you need to sell me on the fair marked value.

Because this unit remained unsold at $6K, I am skeptical of any values over that amount. In fact, I would place the fair market value on the highest bid ever made on this item. Did the two previous auctions have high starting bids, or were they reserve auctions. If reserve auctions, what was the highest bid on each?

I am not a judge, nor am I any kind of arbitrator, so my opinion carries no weight.

Each argument has two sides. I haven't even heard the other side yet, but I'd already limit your recovery to $1500. When the defendant tells me that your $4500 bid was the highest ever received on that item, I would put both parties in pre-contract position.

 

[rdr78]

You said the $9K machine is almost identical to the one you tried to buy for $4.5K. My question is "What reason with the seller offer as to why the $9K machine is worth $9K, and his machine is only worth $4.5K"

The bottom line is this:

In order to prevail, you must show (more likely than not) that you have a loss that the seller is liable for, and show (more likely than not) the amount of that loss.

I agree that the UCC covers this transaction. Others do not.

I agree that (if things are as you say) you are entitled to the difference between the fair market value of the machine, and the $4500 that it would have cost you, had the seller not breached.

So you've sold me on the liability. Now you need to sell me on the fair marked value.

Because this unit remained unsold at $6K, I am skeptical of any values over that amount. In fact, I would place the fair market value on the highest bid ever made on this item. Did the two previous auctions have high starting bids, or were they reserve auctions. If reserve auctions, what was the highest bid on each?

I am not a judge, nor am I any kind of arbitrator, so my opinion carries no weight.

Each argument has two sides. I haven't even heard the other side yet, but I'd already limit your recovery to $1500. When the defendant tells me that your $4500 bid was the highest ever received on that item, I would put both parties in pre-contract position.

Thanks again for adding your thoughts to this discussion, I appreciate your input.

Fair market value vs the auction price. I would cite that the full retail cost of this exact same machine brand new (the machine I purchased was one year old and the seller claims it was in perfect condition, his words were "just like the day I took it out of the box"), is 19k less an allowance for depreciation, a reasonable discounted cash flow value (there are not many variables to argue, the revenue number is almost 100% correlated with foot traffic and the remainder of the expenses are fixed) and similar machines (approx 1 year old, different mfr company, same exact function) that HAVE SOLD at e-bay auctions at 47% of the retail price, extrapolating this pricing to the machine I purchased puts the value at $8,900.

 

[Mass_Shyster]

Thanks again for adding your thoughts to this discussion, I appreciate your input.

Fair market value vs the auction price. I would cite the full retail cost of this exact same machine brand new (the machine I purchased was one year old and the seller claims it was in perfect condition, his words were "just like the day I took it out of the box"), is 19k less an allowance for depreciation, a reasonable discounted cash flow value (there are not many variables to argue, the revenue number is almost 100% correlated with foot traffic and the remainder of the expenses are fixed) and similar machines (approx 1 year old, different mfr company, same exact function) that HAVE SOLD at e-bay auctions at 47% of the retail price, extrapolating this pricing to the machine I purchased puts the value at $8,900.

Expected revenues do not come into the equation. You are buying a piece of equipment. What you do with that piece of equipment is your business/problem.

If you install a pay phone (remember those?) inside Grand Central Station, you can expect it to make much more money that if it were installed outside the Podunk Drugstore. It is still the same piece of equipment, and has the same marker value.

Also, other manufacturers are not pertinent. How much an item holds its value requires a complex analysis. The percent of the original value of a Rolls Royce has very little to do with the percent of original value of a Kia, yet they both perform the exact same function.

 

[Mr. Fusion]

I'm reading tranquility's cited post differently, how to you interpret the UCC?

There must be an agreement before there is a contract. A "meeting of the minds". The seller has one contract with eBay. The buyer has another with eBay. The seller does not have one with buyer because the seller declined to enter into one with the buyer.

Anyone may sue. Winning is another matter. In order to win, the Plaintiff must show they are damaged in some way. They are requesting the court to "make them whole".

In this case, the buyer did not lose anything, is not out any money, and thus, has no claim. If the buyer sues eBay, he will lose because he agreed that ebay is not responsible when he agreed to their terms. If he sues the seller, he will lose because the seller did not agree to sell to HIM. If eBay sues the seller, that is something else.

An auction is under no obligation to sell to the highest bidder. If I'm selling a $10,000,000 van Gogh and I know your intent is to use the painting as toilet paper, I don't have to enter into an agreement with you. Or if your bid is to pay a higher amount but part now and part later, again, I don't have to accept. It is the refusal to accept the terms (in this case the final price) that barred there being an agreement for a contract. An auction is only the decider in who will pay the most for a specific object.

A few years ago the TV show Sienfeld had a great example of this. The Soup **** refused to sell them his soup. Why he refused is irrelevant, only that he could.

A contract is never automatic. It must be mutually agreeable AND it must confer equal benefits to both parties. The only time a seller is required to complete a transaction against his will is if there is a civil rights violation in his refusal.

NOTE, if the buyer does file a frivolous claim it will be dismissed at his cost.

 

[Mass_Shyster]

There must be an agreement before there is a contract. A "meeting of the minds". The seller has one contract with eBay. The buyer has another with eBay. The seller does not have one with buyer because the seller declined to enter into one with the buyer.

In the case of ebay, the seller has made a specific offer to sell the item to the highest bidder. The highest bidder has accepted that offer.

How is this any different than Lefkowitz v Great Minneapolis Surplus Stores?