Sue Ebay non selling seller in small claims court

[rdr78]

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.

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.

Point 1 and 2, the cost of the payphones may be the same, but the values of the locations just went down because the cost to purchase the payphones was higher than what would have been if the contract was honored, the difference being the damaged amount??

Point 3, comparing a RR to a Kia is very extreme, but if you compare the depreciated percentage cost of a Kia to a Caddy or Benz, after 5 years you will find the percentages to be very similar, if you purchased a Pontiac Aztek you're screwed.

I am under the impression comparing similar assets sold in the same type of market is a standard way to value assets, please let me you don't think that valuation technique applies here.

 

[rdr78]

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?

Are there any searchable case law databases or websites that pubic can access for free?

 

[Mr. Fusion]

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?

"Whether in any individual instance a newspaper advertisement is an offer rather than an invitation to make an offer depends on the legal intention of the parties and the surrounding circumstances. We are of the view on the facts before us that the offer by the defendant of the sale of the Lapin fur was clear, definite, and explicit, and left nothing open for negotiation."

Lefkowitz v Great Minneapolis Surplus Stores

Lefkowitz is the denial of a sale to a specific person while selling to others. Lefkowitz was induced to the store by an advertisement offering a specific item(s) for a specific price with the condition of First Come First Served. Lefkowitz met the condition set out in the advertisement. There was no negotiation or competition for the item(s). But he was denied the sale.

An auction is only an invitation to provide the seller with a buyer's best bids. An "invitation to make an offer". If the seller believes the highest bid is deficient in price, conditions, etc he is still under no obligation to sell. Of course exceptions to this would be if the Auctioneer advertised that there would be no reserve bids, etc signifying the Auctioneer has control of the item. EBay does not, nor did it ever have, control of the item. Often eBay items will have a "Buy Now" price. That is a concrete offer and may be binding.

Many times the highest bid doesn't win. Currently there is a huge legal battle over the sale of the Phoenix Coyotes hockey team. The highest bid of $220M is being challenged by a counter offer of $175M. Go figure.

 

[rdr78]

"Whether in any individual instance a newspaper advertisement is an offer rather than an invitation to make an offer depends on the legal intention of the parties and the surrounding circumstances. We are of the view on the facts before us that the offer by the defendant of the sale of the Lapin fur was clear, definite, and explicit, and left nothing open for negotiation."

Lefkowitz v Great Minneapolis Surplus Stores

Lefkowitz is the denial of a sale to a specific person while selling to others. Lefkowitz was induced to the store by an advertisement offering a specific item(s) for a specific price with the condition of First Come First Served. Lefkowitz met the condition set out in the advertisement. There was no negotiation or competition for the item(s). But he was denied the sale.

An auction is only an invitation to provide the seller with a buyer's best bids. An "invitation to make an offer". If the seller believes the highest bid is deficient in price, conditions, etc he is still under no obligation to sell. Of course exceptions to this would be if the Auctioneer advertised that there would be no reserve bids, etc signifying the Auctioneer has control of the item. EBay does not, nor did it ever have, control of the item. Often eBay items will have a "Buy Now" price. That is a concrete offer and may be binding.

The buyer had the option to set a true reserve price through the ebay system or set the insertion price at or above the minimum price he was willing to accept. By not using these tools, the buyer is indicating he is willing to accept $4,000 or more for this equipment. Again, I will point to tranquility's post regarding the formation of a contract.

 

[Mr. Fusion]

Again, I will point to tranquility's post regarding the formation of a contract.

That is fine. Go for it.

The seller's defense will be "we never had an agreement." It will be up to you, as the Plaintiff to prove a valid agreement between you and the seller was in place. Just saying so will not cut it. You will have to PROVE it.

I'll try to keep this simple. You will need to prove there was a relationship based upon a contract. A contract requires there be an agreement between two parties. If the two parties can not come to an agreement there is no contract. The case, as you described it, does not have an agreement between the seller and buyer.

Stevef brought up the instance of a firm, advertised offer. That doesn't apply in this case. This was only an invitation to <I>make</I> an offer. Until the offer and the conditions are accepted by both parties there is no agreement.

Yes, there are ways around that and special circumstances. I just don't see any in your case.

You are not out of pocket anything. You can't claim on a "well I would have made so much profit". So therefore, you can't ask the court to reimburse you.

Try again and see if someone else isn't selling a similar item.

 

[Mass_Shyster]

This was only an invitation to <I>make</I> an offer. Until the offer and the conditions are accepted by both parties there is no agreement.

Went right over your head, didn't it?

Maybe you should google unilateral contract.

 

[rdr78]

That is fine. Go for it.

The seller's defense will be "we never had an agreement." It will be up to you, as the Plaintiff to prove a valid agreement between you and the seller was in place. Just saying so will not cut it. You will have to PROVE it.

I'll try to keep this simple. You will need to prove there was a relationship based upon a contract. A contract requires there be an agreement between two parties. If the two parties can not come to an agreement there is no contract. The case, as you described it, does not have an agreement between the seller and buyer.

Stevef brought up the instance of a firm, advertised offer. That doesn't apply in this case. This was only an invitation to <I>make</I> an offer. Until the offer and the conditions are accepted by both parties there is no agreement.

Yes, there are ways around that and special circumstances. I just don't see any in your case.

You are not out of pocket anything. You can't claim on a "well I would have made so much profit". So therefore, you can't ask the court to reimburse you.

Try again and see if someone else isn't selling a similar item.

Ok, thanks again for taking the time to detail your thoughts on this dispute, I appreciate it.

 

[tranquility]

Note "or in other customary manner" in point 2 and that once bids are called for, if the auction was "without reserve" it cannot be withdrawn in point 3.

§ 2-328. Sale by Auction.
(1) In a sale by auction if goods are put up in lots each lot is the subject of a separate sale.

(2) A sale by auction is complete when the auctioneer so announces by the fall of the hammer or in other customary manner. Where a bid is made while the hammer is falling in acceptance of a prior bid the auctioneer may in his discretion reopen the bidding or declare the goods sold under the bid on which the hammer was falling.

(3) Such a sale is with reserve unless the goods are in explicit terms put up without reserve. In an auction with reserve the auctioneer may withdraw the goods at any time until he announces completion of the sale. In an auction without reserve, after the auctioneer calls for bids on an article or lot, that article or lot cannot be withdrawn unless no bid is made within a reasonable time. In either case a bidder may retract his bid until the auctioneer's announcement of completion of the sale, but a bidder's retraction does not revive any previous bid.

(4) If the auctioneer knowingly receives a bid on the seller's behalf or the seller makes or procures such a bid, and notice has not been given that liberty for such bidding is reserved, the buyer may at his option avoid the sale or take the goods at the price of the last good faith bid prior to the completion of the sale. This subsection shall not apply to any bid at a forced sale.

From the OP,

I did receive an ebay notification that I won the item, unfortunately, this means nothing to the seller.

What is the "customary manner" an ebay auction completes?

 

[rdr78]

Note "or in other customary manner" in point 2 and that once bids are called for, if the auction was "without reserve" it cannot be withdrawn in point 3.



From the OP,


What is the "customary manner" an ebay auction completes?

Thanks tranquility. Email notification from ebay is the "customary manner" in which buyers are notified they have won the auction, or through the My Ebay link if the buyer does not have access to their email.

 

[JakeB]

That is fine. Go for it.

The seller's defense will be "we never had an agreement." It will be up to you, as the Plaintiff to prove a valid agreement between you and the seller was in place. Just saying so will not cut it. You will have to PROVE it.

I'll try to keep this simple. You will need to prove there was a relationship based upon a contract. A contract requires there be an agreement between two parties. If the two parties can not come to an agreement there is no contract. The case, as you described it, does not have an agreement between the seller and buyer.

Stevef brought up the instance of a firm, advertised offer. That doesn't apply in this case. This was only an invitation to <I>make</I> an offer. Until the offer and the conditions are accepted by both parties there is no agreement.

Yes, there are ways around that and special circumstances. I just don't see any in your case.

You are not out of pocket anything. You can't claim on a "well I would have made so much profit". So therefore, you can't ask the court to reimburse you.

Try again and see if someone else isn't selling a similar item.

Many courts have ruled that ebay auctions create contracts. I have yet to see a judge come to the same conclusion as you. Can you point to any case in any jurisdiction that supports you?

 

[Mr. Fusion]

Many courts have ruled that ebay auctions create contracts. I have yet to see a judge come to the same conclusion as you. Can you point to any case in any jurisdiction that supports you?

I am only giving my advice. The same as you. I notice you claim several courts have said there is a contract. Why not posting some of those cases instead of asking me to back up my opinion (which I have done) with cases. You are asking me to prove a negative.

 

[Mass_Shyster]

I am only giving my advice. The same as you. I notice you claim several courts have said there is a contract. Why not posting some of those cases instead of asking me to back up my opinion (which I have done) with cases. You are asking me to prove a negative.

Mind posting that again? I missed it.

 

[tranquility]

I missed the posting as well.

 

[Mass_Shyster]

I missed the posting as well.

The only case I found on point is from Australia. Ever other case I've found was a dispute after the money had changed hands.

There was some guy who bid on a new BMW for $60K and the dealer refused to honor the price, but they settled.

 

[JakeB]

I am only giving my advice. The same as you. I notice you claim several courts have said there is a contract. Why not posting some of those cases instead of asking me to back up my opinion (which I have done) with cases. You are asking me to prove a negative.

Here are some cases where judges have disagreed with you:

Sayeedi v. Walser, 2007 NY Slip Op 27081 (N.Y. Civ. Ct., 2007):

There is little question as to whether a contract was formed.

In the eBay terms and conditions members agree to abide by eBay policies which state clearly "when a seller lists an item on eBay, and the buyer bids for and wins that item, the seller and buyer have entered into a contract. Both members are expected to honor that contract.

Smith v. Marquross, 276 S.W.3d 926 (Tenn. App., 2008):

Plaintiff brought this action arising out of his purchase of an aircraft which defendant had offered through an auction on Ebay. Plaintiff alleged that defendant was liable for fraudulent inducement to contract and breach of contract, and negligent misrepresentation, plus violation of the Tennessee Consumer Protection Act. Plaintiff asked for damages, rescission of the contract, and attorney's fees and costs.

The Trial Court, in a Memorandum Opinion, found the parties had a contract, as there was an offer and an acceptance, and that the transaction was governed by the Uniform Commercial Code, which contained provisions regarding implied warranties that would apply to the contract.

As the Trial Court ruled, this transaction is governed by the UCC pursuant to Haverlah v. Memphis Aviation, Inc., 674 S.W.2d 297 (Tenn.Ct.App.1984), wherein this Court held that the sale of an aircraft was a "transaction in goods", and the Trial Court correctly held that the airplane was subject to the right of inspection set forth in Tenn.Code Ann. § 47-2-513 ....

Crummey v. Morgan, 965 So.2d 497 (La. App., 2007):

The defendants entered into a contract to sell a vehicle — alleged to be defective — to a Louisiana resident utilizing the website, eBay, which greatly expanded their market.

Robey v. Hinners, No. 2008-CA-000989-MR (Ky. App., 2009):

Given this unique sale style, even though a contract may be formed, the location of delivery is not likely in the seller's realm of contemplation. In the typical on-line auction sale the ultimate destination of any item is completely determined by the potential buyers through the bidding process.

In addition, there are countless cases echoing the UCC, which states that auctions in general create contracts. There's really no question that eBay auctions create contracts. As the one case mentioned, eBay's terms and conditions even state it. But, if you have any case law to support your opinion, I'd love to read it. Please share.