eBay non-selling seller / libelous feedback

[chloe5358]

What is the name of your state? Ohio (a 'liable per se' state)

What is the name of the seller's state? California (also a 'liable per se' state)

I recently won a video DVD on eBay for $8. I promptly paid for the item through Paypal. I was aware that this title was out of print but still available for prices in the $20-30 range.

A few days after the auction, the seller wrote to say the item was out of stock in his inventory, he would not deliver and offered a refund. I said I wanted the item - not a refund. We exchanged several emails regarding this, during which I proposed twp compromises. First, that I agreed to accept a "used-like-new" item (original item won was new-sealed). Used-like-new DVDs were available for $28. Seller rejected that, saying his only liability was a refund.

Next, I proposed to split the difference between the the auction price and the cost of my purchasing a used-like-new item elsewhere. Seller rejected this. I went on and purchased the item on Amazon for $28 ($31 delivered). I filed a non-receipt claim with Paypal - seller refunded the $8.

Every communication between us was in writing and I was careful of what I said. (I did try to call him on the telephone but he refused to take the call)

I posted a negative feedback simply stating that "Seller refused to ship when price went up - did not honor auction. Buyers beware". Seller responded "Tried to extort money". He must have liked this expression, because he posted it TWICE!

Clearly, I can sue for breach of contract - damages ~$22 or so. FWIW, this is a very large eBay seller who probably does enough business in every state to be subject to long-arm jurisdiction.

Clearly, I can sue for Libel - "Tried to extort money" is not a nice thing to say in public, particularly if it is not true.

Opinions?

 

[Zigner]

Did the terms of the auction state that you were only entitled to a refund?

 

[chloe5358]

The auction did not specify actions or limitations if the item was not available.

I would also add this: all the communications between buyer and seller were civil, if not particularly friendly. There were no threats of any sort, no mention of feedback, no "I'll sue you", nothing remotely like that. The real name and street address of the seller are known. Finally, this seller is not "judgment proof" - a valid judgment against him can probably be collected.

 

[SnowCajun]

The auction did not specify actions or limitations if the item was not available.

I've had that happen once before, and have heard of it happening quite often in fact. Really what are you going to do, sue him for an $8.00 DVD? I mean it's hardly worth your time to type it out here, much less go through all the trouble and stress. He ran out, it was a stupid mistake, but I'm not sure how you can expect him to split the cost of a more expensive one with you?

Even posting negative feedback won't hurt him much longer, as per what the news has been saying eBay is getting rid of the feedback system, there will be no more negative feedbacks before much longer. I think that's a stupid move, but in all honesty people are afraid to post negative feedback anymore due to retaliation in return.

I would also add this: all the communications between buyer and seller were civil, if not particularly friendly. There were no threats of any sort, no mention of feedback, no "I'll sue you", nothing remotely like that.

So is it still friendly after you lambasted him with negative feedback? My advice is this, and maybe it's not what you want to hear, but take your refund and go on with life, omg I'd pay $8.00 to avoid such stress anytime.

Clearly, I can sue for breach of contract - damages ~$22 or so. FWIW, this is a very large eBay seller who probably does enough business in every state to be subject to long-arm jurisdiction.

Clearly, I can sue for Libel - "Tried to extort money" is not a nice thing to say in public, particularly if it is not true.

I always try to make such a big effort at being as nice as I can when respond, but don't you think you're going a bit overboard with this? You bought an item for $8.00 and somehow the guy ran out of stock. Personally I think a good business man selling on eBay should have their stock set aside so this doesn't happen, but unfortunately it did never the less. He's done all he can possibly do in offering to refund your money. You said he's been civil to you so I assume he's apologize as well. I'm not sure how you can expect $22.00 damages from him for an $8.00 DVD. It's not like he's replacing something you had in your possession and was damaged.

Also, why would you post negative feedback on him while trying to work it out, especially after you've already told us how civil he's been with you? This was like throwing gasoline on a fire, you caused this to get out of hand, especially in thinking he should split the cost on something more expensive for you than you'd already bought from him.

I went on and purchased the item on Amazon for $28 ($31 delivered). I filed a non-receipt claim with Paypal - seller refunded the $8.

So after he offered to refund you your money, and after you tried to get him to go in with you to buy something for more money somewhere else, you then went to eBay and filed a "non-receipt claim"???? I've been a member of eBay since January 24, 1997 and really this is too much. Life isn't worth all this stress and mess over an $8.00 I mean seriously, have you never made a mistake yourself?

SnowCajun
No attorney here, but old enough to recognize common sense when I see it!

 

[BoredAtty]

Clearly, I can sue for breach of contract - damages ~$22 or so. FWIW, this is a very large eBay seller who probably does enough business in every state to be subject to long-arm jurisdiction.

Yep.

Clearly, I can sue for Libel - "Tried to extort money" is not a nice thing to say in public, particularly if it is not true.

That's iffy since most would probably take it as the seller's opinion of your negotiating technique rather than an explicit claim that you're a criminal. I can see the other side too, though.

 

[quincy]

You can clearly sue for libel, because anyone can clearly sue anyone else for any reason whatsoever. What is NOT so clear, however, is your winning any libel suit, especially one brought over the use of the word "extort".

Words often have two meanings. Sometimes a word will have a rather innocent meaning and then a not so innocent one. When words have two meanings, and one meaning is defamatory, it is generally up to a judge and/or jury to decide which sense of the word makes the most sense in the context it was used.

Extort is one of those words with two different meanings. It has a rather innocent meaning - to extort can mean "to wring from" (with one definition of "wring" meaning "to gain, especially by ingenuity or compelling argument").

Extort can also mean, and this is a legal definition, "the use, or the express or implicit threat of the use, of violence or other criminal means to cause harm to a person, reputation or property as a means to obtain property from someone else with his consent." In other words, to obtain something through intimidation or coercion.

In addition, "extort" can be used as an hyperbole (an exaggeration which exists when a reader of the word could not possibly understand it to be fact). Also, the statement "tried to extort money" could be considered opinion. Many abusive or derogatory words that arise from an argument or debate are treated as either opinion or rhetorical hyperbole. When "extort" is used as hyperbole or opinion, it is considered legitimate, legal, and protected free speech.

I think you would be hard pressed to find anyone believing you were so upset about not getting an $8 DVD that you were going to use violence or other criminal means to obtain it, a replacement for it, or money for a replacement for it. I think you would be hard pressed to find anyone who believed you actually were criminally trying to "extort" money from an eBay seller. If no one believes it, it does not damage a reputation, and it is not libel.

So, I suggest you save the money you would need to spend on bringing a libel action against this eBay seller (probably a fair estimate of the cost is $100,000) and buy 12,500 eight dollar DVDs.