E95 Plank on eBay - Undisclosed Information So Beware

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Posted By: Jon Canfield

Ok, I don't like to play market watchdog here but today I noticed an E95 Plank for sale in an eBay store for $599.99. However, there is a major problem with this Plank that is undisclosed. I, like many others on this board, are looking for an E95 Plank and I feel it's best to send out this warning. I also hope that the auction lister is a member of the forum and thinks about editing his listing to fully disclose all information.

Last week, an E95 Plank sold for a little over $250.00 on eBay with a full disclosure that the card was rejected for grading because of evidence of trimming. I, in fact, contacted the seller before the auction's end and was told that the card measures over 1/16th short both top to bottom and side to side. Here is a link to that completed auction:

http://cgi.ebay.com/1909-E95-Eddie-Plank-Hall-of-Famer-Evid-Trim_W0QQitemZ8754362935QQcategoryZ86841QQssPageNa meZWDVWQQrdZ1QQcmdZViewItem

Today, I noticed the same card listed for sale by the auction winner. However, the listing does not disclose that this card has been rejected because of evidence of trimming. The listing states that if not sold, it will be sent to GAI and get at least an authentic grade. In a way, that is a very very shrouded disclosure. However, in my opinion, be up front. The card was rejected once because of trimming. Wouldn't you, as a potential buyer, want to know that? No measurements are given, no real disclosure. Here is a link to that auction:

http://cgi.ebay.com/1909-Philadelphia-Caramel-E95-20-Eddie-Plank-HOF_W0QQitemZ8762640833QQcategoryZ86840QQssPageNam eZWD1VQQrdZ1QQcmdZViewItem

If I'm wrong here, Leon or others, please tell me and I'll edit this post but I just find this misleading and a warning should be given to others.

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Posted By: Joe Jones

I noticed that too. It does seem a little sneaky.

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Posted By: Jon & Jennifer

As far as I'm concerned, calling this "undisclosed information" is probably too generous.

Personally, I was far more intrigued by the broad legal disclaimers imbedded into every listing description -- not the least of which was the explicit waiver of all liability or indemnification. It's attempting to, and likely does, force the buyer into a binding purchase agreement with terms that clearly benefit the seller and the seller alone -- totally removing any possible legal remedies the buyer might later have. That is a little unsettling in and of itself.

Any thoughts as to what eBay's ultimate position would be with a situation like this? I wouldn't want to be left in a situation where I was waiting for eBay to come to my rescue -- with anything of any importance -- but particular something as potentially messy as that.

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Posted By: davidcycleback

This 'disclaimer' is irrelevant if he knowingly misrespresents
the item in a material way. The disclaimer also says he has described
the item as accurately as possible.

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Posted By: Jon & Jennifer

In the real world that would be true, but this is eBay after all. With this particular auction, it would be easy enough to establish that he "knowingly" omitted information about the card's condition -- but only because there is the first to refer back to. In other situations, though, it might not be so easy to wiggle out of those terms.

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Posted By: davidcycleback

Look at the card and read the seller's claim that
"it will grade at least GAI authentic or better."
I'm assuming no one's execting to get a Gem Mint 10
out this auction.

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Posted By: Jon & Jennifer

Do you at least agree that the "or better" part of that sentence is misleading in and of itself? There's no chance for "better" than "authentic" for this card.

I don't want to beat this thing to death, but he dosn't just say that he described the item as "accurately as possible" -- the auction reads "All information listed is intended to be as accurate as possible, but errors are possible. No item may be returned or refused based on this information which is provided as a service to our customers...and NO WARRANTY, WHETHER EXPRESSED OR IMPLIED, IS MADE WITH RESPECT TO ANY DESCRIPTION CONTAINED IN THIS AUCTION. Any description of the items contained in this auction is for the sole purpose of identifying the items, and no description of items has been made part of the basis of the bargain or has created any express warranty that the goods would conform to any description made by the seller..."

That's a really nifty policy -- refusing a return in the event of a material error in the listing itself?? The bit about the item description not being a "part of the bargin" or creating a warranty that the "goods would conform to any description made by the seller". Listen, there's nothing wrong with attempting to limit liability as a seller -- so long as you're doing it in the right way and for the right reasons. All I'm saying is that the scope of these terms is unusually broad. I've never seen anything quite like it.

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Posted By: davidcycleback

I've not seen the card so won't offer opinion on the grade,
but I rolled my eyes at the "authentic or better." It's on
the order of "guaranteed to grade PSA 10 or lower," with trimmed
reprint counting as lower.

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Posted By: jay behrens

Disclaimers and anything else a seller puts in an auction is pretty meaningless. Especially when it comes to PayPal taking away money from you. PayPal/ebay will do as it plpeases regardless as to what poclicies the seller has set up. It's situations like this that will help Tiffany prove that eBay is more than just a venue. If that were the case, then they would have to heed the policies set up by the seller as long as they don't violate eBay policy. Obviously, PayPal/eBay doesn't do this and is more than just a venue

Jay

I've just reached Upper Lower Class. I am now officially a babe magnet for poor chicks.

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Posted By: davidcycleback

There are legitimate and reasonable disclaimers, but
there is no disclaimer that legally allows an eBay seller to
commit fraud, sell a fake or otherwise break the law. A judge
isn't going to say, "Well, Mr. Jones, according to your eBay
auction disclaimer, you ARE allowed to have seven 12 year old wives,
sell crack and not pay taxes. The court finds you not guilty."

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Posted By: Joann

I think disclaimers such as this (or similar) are not that uncommon if the seller is a consignor and is taking a product description at the word of the owner. Kind of like the next step in the ebay "Not me" food chain. Just as ebay can't become product experts on all things sold, a through-seller can't become expert on all things he sells either. So to some extent he is dependent on the owner-submittor for description.

Which gets exactly to David's point. Sellers as middlemen insert language of this type to insulate themselves from the likelihood that there will, eventually, be an inadvertent misrepresentation based on inaccurate info from the submittor. A knowing misrepresentation is something entirely different. Oh, and as to the analogy DRC gave - hee. Good one.

In this case, since the seller is the owner is the submittor, and the card's deficits clearly spelled out during the previous auction, I'm not sure that it falls into the category of inadvertent-misrep-based-on-middleman-position.

Joann

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Posted By: davidcycleback

The rule of law in selling art and memorabilia is that the seller
has to deliver what was described as being offered in the sale or
auction. There is no seller's disclaimer that changes that rule.
If a scammer has a small letters disclaimer saying he's allowed to
keep the eBay bidder's money without delivering the advertised goods, the
only legally practical result of this disclaimer is that legal authorities
will use it as evidence that the seller was knowingly committing fraud.

If a seller is the maker of the reprint or counterfeit, he has a higher level
or responsibility for describing the item at sale. A normal seller might be able to
get away with saying "I'm not sure what it is, but it looks old," but the maker
of the item would not be able to get away with that. If you made the
item, you know what it is and are legally bound to tell the potential buyer what it is.
Leave out material information at your own peril. This is why I beleive that those
'cutout cards' sellers (assuming they cut out the cards themselves) might be in for a surprise
if a buyer sued. These sellers may beleive that their literal wording ('I never used the
word trading card') gives them a free ride, but a judge may feel that as the maker of
the items, they are required to be more candid about the items at sale.

There are many jailed forgers who never literally lied about their
creations. One infamous art forger pleaded his case by saying,
"I never told the buyers the paintings were originals, that was
their idea. I just never corrected them." The last sentence is why he went
to prison. One can lie by omission.