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Originally Posted by egbeachley
Nope. There is no written contract here (not a big assumption). This is a "merchant transaction", look it up in the UCC Code you referenced earlier. Therefore risk does not transfer until received by buyer.
Also, common sense tells us that if it was FOB shipping point that there would mail delivery chaos since anyone could pretend to ship an item that gets lost in transit. That would be the easiest scam in existence.
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So you have withdrawn the claim about it being a destination contract, and now want to talk about the merchant provision. OK, let's do that.
I don't think you are reading it right. The merchant provision only applies to cases not within the first two clauses. It says so clearly. And who says there isn't a contract, either via eBay or an exchange of emails? It seems self-evident that there was a contract where Luke authorized the seller to ship the card to him. And who says the seller is a merchant here, could just be a casual collector. If someone became a merchant just by virtue of selling something, the term would have no meaning at all.
As to your second point, the overwhelming majority of people are honest and not looking to screw people over, so it doesn't impress me. Your argument is basically, the law must be what I say it is, otherwise people would act differently. So many assumptions built into that...
PS To be clear, we are just talking about the basic provision of the UCC, which may or may not be the law in any given state. And as Eric said earlier if it was an ebay transaction, eBay's own rules may apply. But still (for me anyhow) a good academic discussion perhaps because it's a problem as to which there is no good answer -- both Luke and the seller did what they were supposed to do here, and the loss isn't either of their faults.