Opinions on a transaction issue

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Posted By: Kyle

Hey Everyone,

Question for you about something I've going through.

In August 2005 I bought an item from eBay, but made an agreement with the seller to sell it offline. The item never arrived and was assumed lost in the mail. The seller refunded my money saying he never received the item back from the Post Office.

Recently, the seller has relisted the exact same item.

Do I legally have anything in my favor to get it?

-Kyle-

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Posted By: Andrew Parks

I don't think so.

I'm no lawyer, but since you first tried to illegally get it, I would think you have no leg to stand on.

Ebay rules prohibit transactions off-line.

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Posted By: DJ

Have you contacted the seller again and what did he say if so?

DJ

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Posted By: Kyle

So far, no response. I'm sure he will ignore me.

Whats really annoying is that two weeks ago I emailed him again asking him to be honest and tell me if he ever sent it period, and he again said he did, blah blah blah.

-Kyle-

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Posted By: Cobby33

Unless you've suffered some financial loss, there's not much you can do about it, unfortunately. You must prove some sort of actual damages in order to sustain a cause of action against someone.

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Posted By: robert a

Kyle,
One time a seller sent me a t206 that became lost in the usps web. So he filled out the insurance stuff and refunded my money. To make a short story shorter, I was in the post office several months later and there it was.

Maybe it was lost, but was returned to him. He might've figured since he refunded your $ that we would just list it again?

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Posted By: davidcycleback

A small claims judge would probably say, "You got your money refunded, so you got your money refunded."

It's possible the item was really lost and the PO returned it after the refund. I once had a lost 1953 Topps returned several monthes later by the PO with an official note saying the package had been damaged in the sorting machine. It can happen.

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Posted By: Kyle

The problem is is that I've always been persistent in emailing him here and there asking if it had ever arrived, as I was so anxious to get it. While contacting the post office to see what I could do about a lost package, they pretty much assured me that he had never sent the package... and on his end, he could not provide me with receipts as he "accidentally" threw them out, just like he forgot to insure the package before sending.

Some have said he probably realized he sold too low and wanted to make more money.

Its frustrating, but looks like I might have to win them out right if I want them.

-Kyle-

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Posted By: cmoking

I thought:

ebay rules are not the law. just because two people break ebay rules does NOT make it an illegal transaction.

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Posted By: Bob

I'm amazed at the stories of lost cards showing up months later. Every card I have ever purchased which was lost in the mail or lost by UPS stayed that way. If one of mine ever showed up later, I'd be shocked. Suprisingly, all the cards which were lost which I was waiting on had delivery confirmations or were insured and still never made it!

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Posted By: robert a

Hi Bob,
It does seem strange, but don't many lost cards have to show up sometime?
Unless they go into the garbage by accident, they might be in someone's house right now. That person will eventually try to sell them and they'll end up on the open market. It would seem that the difficult part would be getting them back if you saw them on ebay or somewhere else.

I guess that's why it's good that you and others have documented your losses here on this forum. I still remember when you lost that Old Put (i believe clarke) and a bunch of other e98s with ups on there way to GAI.
Maybe they'll turn up someday.

Robert

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Posted By: t206King

if u sent the money through mail go on 411.com or yellowpages.com. type in his address and give him a call. if he still refuses i guess its a lose

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Posted By: Misunderestimated (BKH)

Kyle-
the unstated premise is that this card that never arrived was either a great bargain, a very rare specimen or both.... When you buy off ebay you have no meaningful recourse as long as you got your money back. I guess that you could have asked for some proof of mailing receipt that showed it was sent (an insurance form or delivery confirmation number). Seeing this documentation would not provide you with recourse, but it would lessen your suspicion that the seller simply backed out and told you the item was in USPS limbo.


Personally I was always quite fortunate with the USPS -- until the end of 2005. Since the later part of Nov. '05, I have had 2 checks I sent regular mail lost -- one arrived weeks later after I sent a replacement, the other never arrived. More significantly, a 1914 PSA CJ 3-Finger Brown I sent Priority/Insured never arrived. I got an empty box back from the USPS and now need to pursue them for the $ which I refunded to the buyer). My policy is that if (by some flue of the universe) the Brown card is ever returned to me I will offer it first to the buyer/ebay winner.

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Posted By: Kyle

Part of me is just really disappointed someone would flat out lie like this. But thats reality and it is what it is. And yeah I did get a good deal, obviously too good for the seller to be true to his words.

-Kyle-

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Posted By: Judge Dred (Fred)

Kyle,

I'm curious about something - what was it that the seller sold to you? Was your offer a "reasonable" offer? The reason I ask is because it is entirely possible that someone emailed the seller and told him that he sold it too cheaply to you and the seller had sellers remorse. At least the seller was honest enough to refund your money.

1) What was the item in question?
2) How much did you pay for that item?

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Posted By: DJ

I wonder the above as well. Care to out this guy especially since he won't answer you.

Back in 2001, I bought a lot of e cards that sold below the radar (and worth a fortune now) from a seller who sent me back my payment and cancelled our transaction because he said half the cards were lost. I knew he was lying and he didn't get the price he wanted. I won it for $480. A week later, back on eBay with a "Buy It Now" for $650.

I clicked the "Buy It Now" and asked him "WHAT THE HELL?" and he made up a string of lies, left me negative feedback and relisted the items blocking me. He then put it up again and I won it with a friend's account for $675 and you guessed it? He would get his payment back with nice digital prints of the damaged package that came back to him. Some people simply suck.

DJ

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Posted By: t206King

yeah i have had that. i bought a lot of 4 cards t206's and e96 tinker with them. i bought it for a whopping 16 bucks. still havent recieved them and the seller told me he sent them out. i beleive him 100%, its just mail isnt reliable like it used to be it seems........ it doesnt matter how much u spend, it matters if u get them!!!!

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Posted By: Josh K.

Ok, and now a lawyer's initial thought - w/o doing any research on the relevant legal issues:

1. A valid contract was entered into - An offer to buy a card for a specified price was accepted by the seller. For you non-lawyers, a contract requires only offer, acceptance and consideration (ie the item being exchanged in this case). In case anyone is wondering, with few exceptions, contracts do not have to be in writing (though it sure helps prove things when problems arise).

2. Its not illegal to offer someone money to end an auction and sell you an item off line (though as noted above, it is against ebay rules, and could get you kicked off ebay). Thus, the contract is not void.

3. The seller breached the contract by not selling the item as agreed.

4. If it were me, and it was a rare enough item, I would consider suing for specific performance (i.e. forcing the seller to go through with the sale) (I would also consider seeking an injunction to stop the current ebay sale). Contrary to the opinions above that there are no damages, no recourse, or that a small claims judge would simply say "you got a refund", I think if you could prove that it was not reasonably possible to obtain the card by other means, there are damages and that you could force the sale. Of course, this all would require a lot of money which ultimately might make the whole idea of suing cost prohibitive.

So the question is, how important is it to you. Is it worth spending thousands of dollars in legal fees? If so, you very well may have some recourse available to you.

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Posted By: Kyle

I'd love to sue, but for now I am going to wait to see if the seller says anything. If he doesn't, I'll out him soon.

I did get a great deal, but at the time of purchasing, I was not 100% sure on the identity of the cards, only to later discover it. We'll see what happens. I'm trying to remain positive and hopeful he will come through for me finally.

Thanks,
Kyle

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Posted By: Cobby33

Josh:
With all due respect, no cause of action would lie without proof of damages, at least in California. Yes, legally a contract was breached (there was an offer, acceptance and consideration). But, if you cannot show damage, you don't get past summary judgment and definitely don't prevail in small claims, unless the judge doesn't understand simple Contract law. Injuctiive relief is hardly an option, as a buyer would be hard-pressed to show irreparable harm. By analogy, suing for specific performance would also be futile.

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Posted By: Josh K.

Cobby,

Damages do not have to be monetary. If the card was rare and otherwise unattainable, that is your damage. Same goes for irreparable harm. I am, of course, assuming facts not in evidence - rarity. The assumption is based simply on the fact that kyle didnt go out and just find a replacement when the card wasnt sold. Of course, there could be other reasons for not doing so. The point is, you cant simply conclude that he has no cause of action or damages b/c he got his money back.

I would also add that if it cost him more to replace the card, he would be damaged in the extra amount it cost him to obtain the card by other means. Of course, under that scenerio, there would be no irrep. harm.

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Posted By: Cobby33

Josh:
That really is an interesting argument. It would be interesting if it ever came up. I'm not sure there's been law on that issue in CA. But if this were my potential client, I don't think I would recommend pursuing it...

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Posted By: Josh K.

I doubt that there are too many baseball card cases floating around in the courts and I agree, that unless the card were a 4 base hits kelly, balt. news ruth, or some other extremely rare and VERY valuable card, I would not recommend suing either. My initial post was really made simply to note that under the right circumstances, there might be recourse despite getting your money back.

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Posted By: Cobby33

True, true.

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Posted By: Josh K.

one final note, I do concede that irreparable harm (and specific performance) would be extremely difficult to show - both, I believe, require a showing that the damage could not be cured by monetary means. Hence the need for the card to be fairly rare.

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Posted By: Dan Koteles

first is that he may have decided to keep it and/or
thought that what he did wasnt right .In doing so, he
may have relisted it to be fair to all. He seemingly
would have that right.

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Posted By: Josh K.

I disagree. Once you enter a contract, oral or written, and you decide not to go through with the deal, you've breached the contract. The fact that its a baseball card and others may have wanted a shot at it, is irrelevent.

Its no diffent than signing a contract to buy a house and then the seller decides not to go through with the deal b/c someone else offered more after the contract was signed or he/she simply decided not to move - the seller would be liable for whatever damages he/she caused by the breach (ie the failure to sell to you). Disclaimer - Im assuming (since Im not a real estate lawyer) that sellers in a real estate transaction, unlike buyers in many states, have no statutory revocation period that might apply.

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Posted By: DJ

Ebay is built on the principle that people are naturally good but it also opens up a tremendous amount of fraud and puts people who know nothing about retail into the selling market. I have had maybe a hand full of lost parcels in my lifetime out of literally ten's of thousand's of transactions. With any parcel of any importance, there is a way to track it.

Hey, what's to say that this person (or any person) sold you the item at XXX amount and then found an offer that was more to his liking and a tale is created.

I take it that you won't point us in the direction of this sale.

DJ

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Posted By: Judge Dred (Fred)

Kyle,

Why don't you let us know what it was that is at issue. If you're pretty certain that the person isn't going to sell it to you or answer your emails then why not indicate what it was that you don't have and how much you offered the person for it. That information might just make it easier to provide an accurate opinion on the transaction issue. Without this information all people can do is comment on how lousy it was for the person to not send it to you. You do have your money back so that's actually not too bad in the spectrum of things that could have happened.

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Posted By: fkw

Im curious too. After reading all this. If you werent 100% sure what the identity of the item was, then the auction/item was mostlikely mislabeled or misidentified. A rare uncataloged "type" card?? What was it??

To me it sounds like the seller did find out what he had and had sellers remorse. I wouldnt have a problem with the seller changing his mind, its just the lies that would bother me. It would have been a whole different case if the item went the full auction time and sold in a normal fashion.

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Posted By: warshawlaw

Fraudulently telling the buyer that the card was lost, which is really what everyone is assuming and arguing as the basis for reopening the deal, is impossible to prove in this case. You're never going to be able to prove the negative, i.e., that he did not mail it. No one from the P.O. will testify for you, so his testimony that he did mail it is the only testimony that will be admitted on the issue. Everything else is hearsay or speculation. Once he establishes that he mailed the card, he will prove that he and the buyer entered into a mutual agreement to cancel the sale based on the card's loss. You also will never be able to prove that he did not get it back subsequent to the sale being cancelled, since only he would know that fact.

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Posted By: Jason

What was the item?

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Posted By: Dan Koteles

but,I had a similar situation with a board member and
not to familiar with the person.....it was done on the
B/S/T and he didnt sell. I got over it. But the fact
already paid for it and then there was a problem ,I can see your ire.

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Posted By: Joann

Wow. What a great thread! A few legal questions.

About whether there were damages, regarding the ability to go get another card and/or whether kyle did: If these cards - now on ebay - sell for, say, 2X what kyle had offered, couldn't that be evidence of damage? The difference between what he paid and the fair market value of procuring replacement? Isn't this even in UCC somewhere for failure to deliver? So even if he didn't get the cards, wouldn't the seller be liable for the cash value of the difference? (This assumes that replacements are even reasonably available and future purchase by kyle is an option - back to the Four Base Hits hypo.)

Regarding mutual cancellation of the contract after 'lost in mail': Wouldn't kyle be able to show via his many emails requesting performance that this contract was unilaterally cancelled by the seller? His acceptance of a refund doesn't necessarily mean that he has agreed to forego the benefit of the bargain, right?

And WHO SAYS YOU DON'T LEARN HERE???? lolol I'm on the slow boat through law school right now - taking night classes, working full time and then some, and old besides . I just this term hit 2L.

I think this has been a great thread.

Joann

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Posted By: Peter_Spaeth

"I did get a great deal, but at the time of purchasing, I was not 100% sure on the identity of the cards, only to later discover it."

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Posted By: Kyle

What I was saying there was that the lot has a superstar in it, but I was unsure what set the card was from as I had never seen them before. In my opinion, they are not easily replaceable and are worth over $3000. I will identify after today, I am just giving the seller another day to make good.

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Posted By: dennis

if the seller ends an aucton early to accept an offer.he can also return your $ and cancel the transaction.there is no documentation of a sale. he probably feels you took advantage of him, as most who make offers to end auctions early do.

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Posted By: Peter_Spaeth

You agreed to buy cards not knowing what set they were from, and the seller didn't advertise what set they were from in his ebay auction either?

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Posted By: Josh K.

Dennis - With all due respect, you are wrong. Sure, he can change his mind, but in so doing, he breaches an oral agreement. Contracts do not have to be in writing. I would also guess that there was plenty of email correspondence to support the deal ("I will give you X for the cards" followed by "ok, send payment to me at . . ."). This would actually make it a written contract and would provide all the documentation necessary to "prove" a deal was made. The fact that one party may get the better of the deal is completely irrelevent absent some sort of fraud or coercion.

Adam - while I certainly see your point and recognize the difficulty in proving such a case, I disagree with your conclusion. This would be one person's word (the buyer) against another's (the seller). A jury would have to judge each person's credibility and the likelihood that they are being truthful. I dont believe that it is too far-fetched to believe that a jury could conclude that the seller is lying. This isnt a criminal prosecution, so there is no need to prove anything beyond a reasonable doubt. The jury need only believe the buyer's story slightly more than the seller's explaination for it to render a verdict in favor of the buyer.

I should also point out again that despite the position I am taking on the merits of a case, it does not mean that I believe it to be an attractive or worthwhile case to pursue (unless the card at issue was extremely valuable).

Joann - good luck with law school. Its difficult enough going full time when there are no real distractions (other than those you make for yourself). Taking classes at night while working during the day has got to be rough.

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Posted By: Joann

Josh,

Thx for the encouragement. It can be a bear doing both, depending more on what's going on at work. Fortunately I have a great boss that allows some flexibility, and a job that does not require frequent and/or spontaneous travel. A difference in either case would be a show-stopper.

In terms of this hypo, would it matter whether the PO thing could be proved? Seller breached, he breached. I didn't think it usually mattered much why. (Except for impossibility of K considerations, which now that he has them relisted strongly indicates no impossibility here.)

If there were enough money involved, or the buyer were a lawyer and could process it himself, or if for whatever other reason cost could be diminished, I would at least think it's worth pursuing. Heck, it has more merit than half of what made it to my casebooks!

Joann

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Posted By: Jeff Lichtman

So...we're going to sue the seller (presumably who is from a state other than you, Kyle) on a deal worth 3K. And it's not even like your damages are 3K. Hmmm...think you'll find many lawyers willing to take that awesome litigation? With all respect, I'm not sure that the seller is shaking in his boots yet...

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Posted By: Josh K.

If you had proof the seller never mailed the card, it would certainly help. I dont think its necessary to win the case, you just need a jury to make some reasonable inferences and believe that the card was never mailed. The circumstantial evidence suggests that this is the case (by the way, Ive never gotten a card or anything else back that has been lost in the mail, so perhaps my belief is jaded).

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Posted By: rob

That's the perspective the seller has apparently taken, Kyle received his refund, and now has a chance to bid on the item for it's true value. Always amusing how the people on this board who complain about getting screwed, are the ones trying to get the advantage.

Warsawlaw hit the nail on the head, seller claimed it was mailed , buyer received a refund when the item wasn't delivered and the buyer'd be unable to prove otherwise in Court.

The seller breached a contract if thats not the case, with Kyle being entitled to damages of the difference the item will sell for now vs the earlier greed upon price. As a practical matter, thats not going to happen.

Ebay will not suspend a seller for cancelling a sale done offline, so the seller doesn't have to worry about "getting outed".

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Posted By: Josh K.

Jeff,

I dont think Kyle ever planned on suing. I also think all the lawyers who have commented recognize the monetary aspect of this case would make suing highly unlikely. As I commmented in my first post: "Of course, this all would require a lot of money which ultimately might make the whole idea of suing cost prohibitive."

Rob - you are wrong to assume it couldnt be "proved". In fact, you dont need to prove with 100% certainty that the seller is lying about mailing the card. You only need a jury to believe the buyer's story the slightest bit more than the sellers explanation. This is called the "preponderance of the evidence." The jury is free to believe who and what they want.

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Posted By: Peter_Spaeth

If Kyle had no intention to sue, what was the point of soliciting everyone's opinion, other than to augment JoAnn's legal education?

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Posted By: Josh K.

I will let him comment, but it seems that he may have originally be interested in the possibility, but later states he doesnt intend to do so. Im guessing he wanted a way to threaten legal action to see if that would make the seller go through with the deal. As someone mentioned earlier - I doubt the seller is shaking in his boots.

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Posted By: Kyle

I simply wanted to see if anyone had had a similar situation in the past, and if there is any easy way to go about things. I'm sure many others would be just as disappointed as I am in the situation and I was hoping some could provide some insight, and clearly there are many on these boards willing to discuss scenarios, and I thank those who have contributed.

I never intended on sueing, but if info was presented that made it seem like it would be easy and cheap to do, I would have given it some thought.

In the end, I don't plan on it and sadly am out the great items.

-Kyle-

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Posted By: Joann

Whoa. Peter - I think that people were tossing about possibilities and opinions. It started with the importance (if any) that the fact that this was an offline deal contrary to ebay's rule would have on the buyer's options.

It looked to me like general trading opinions and counterpoints and not necessarily a legal debate strictly related to this exact situation. Even so, several of the issues raised could be important to those on this board that routinely transact via mail or some other <100% reliable delivery method. Who knows? Maybe next time it will be a truly rare and expensive card, and someone might remember reading something here and at least think to ask about recourse.

My main concern is to clarify that, much as I've enjoyed the back and forth of this thread, I certainly had no intent that it get hijacked at all and especially not for any personal benefit to me. Lordy I apologize to anyone that thinks that.

I just want to see how Kyle makes out on this!

Joann

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Posted By: rob

LOL! Theres no "jury" in small claims Court, and I didn't claim that non delivery couldn't be proved, just as a practical matter its not going to happen.

Kyle is good for a laugh with his explanation of his "deal". Based on what he has mentioned, here is what I imagined happened: The seller had listed a group of cards with a photograph/scan. That picture had a Cobb, Young, Mantle ect in what ever lot of cards was being auctioned. That superstar wasn't mentioned in the listing. The T206's, E90-1, Goudeys ect were described as something like "1910's cards", 1930's cards ect. Finally, the seller could had put the cards in the wrong category. So those cards are not going to show up in a search. Kyle gets seller to end auction early at a low price, yet much more than what the bid is at, as the cards have been listed for 5 days with low bids in a week auction.

Now, the seller was probably new enough not to realize that there may had been at least 2 snipe bids set so he would get much closer to the actual value of the cards, that he had witten a lousy listing, and could get much much more than what Kyle paid. IMO, the seller should had ended the listing early and relisted with a better description, it'd remove the possibility of a pest like Kyle from the picture.

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Posted By: Peter_Spaeth

Seems Kyle has a history of omitting details when he goes on public forums to complain.
http://forums.collectors.com/messageview.cfm?catid=37&threadid=336256&STARTPAGE=3

JoAnn, that comment was directed at Kyle not you!!