Stolen card please keep an eye out - And do I have any recourse?

[egbeachley]

Originally Posted by Peter_Spaeth

I haven't looked it up, but from memory, in a transaction where you don't specify, risk of loss passes to the buyer when the seller delivers the goods to a common carrier. But don't take that as gospel.

I'm near positive that eBay policy is that the seller is responsible for getting the item to the buyer. If not, what would stop any seller from "mailing" a defective package with the item falling out and keeping the item.

[Peter_Spaeth]

Originally Posted by egbeachley

I'm near positive that eBay policy is that the seller is responsible for getting the item to the buyer. If not, what would stop any seller from "mailing" a defective package with the item falling out and keeping the item.

Did he say it was ebay?

[egbeachley]

Originally Posted by Peter_Spaeth

Did he say it was ebay?

Good point.

But I still think this rule applies to any mail transaction that does not contractually describe transfer occurs upon shipping to a common carrier or shipping is under the control of the buyer through dome manner.

[Peter_Spaeth]

Originally Posted by egbeachley

Good point.

But I still think this rule applies to any mail transaction that does not contractually describe transfer occurs upon shipping to a common carrier or shipping is under the control of the buyer through dome manner.

And your basis for that opinion is what please? The basis for mine is the Uniform Commercial Code, section 2-509. Unless there is a specific provision requiring the seller to deliver at a particular location (a so-called "destination contract"), risk of loss passes to the buyer when the seller delivers to the common carrier.

[egbeachley]

Originally Posted by Peter_Spaeth

And your basis for that opinion is what please? The basis for mine is the Uniform Commercial Code, section 2-509. Unless there is a specific provision requiring the seller to deliver at a particular location (a so-called "destination contract"), risk of loss passes to the buyer when the seller delivers to the common carrier.

I'm assuming the sale had no written contract requiring the use of a common carrier or the use of a third-party entrusted with the possession upon further delivery instructions. Rather, this was an ordinary merchant transaction where risk passes to the buyer upon delivery.

Seller: Thanks for the purchase. What's your address?
Buyer: 123 Main St
Seller: Cool Beans. I'll mail it to you tomorrow.

That's either a "destination contract" or a merchant transaction.

[Peter_Spaeth]

Originally Posted by egbeachley

I'm assuming the sale had no written contract requiring the use of a common carrier or the use of a third-party entrusted with the possession upon further delivery instructions. Rather, this was an ordinary merchant transaction where risk passes to the buyer upon delivery.

Seller: Thanks for the purchase. What's your address?
Buyer: 123 Main St
Seller: Cool Beans. I'll mail it to you tomorrow.

That's either a "destination contract" or a merchant transaction.

The buyer ALWAYS gives an address, otherwise the seller would have no way to get it there. I think without more that's still just a shipment contract. But I will take another look.

[Peter_Spaeth]

How to Spot a Destination Contract Various contract terms help distinguish destination contracts. The following terms will typically point to a destination contract: 1) FOB (Free on Board) – when delivery term in the contract states "F.O.B San Francisco" and the buyer or its distribution or logistic channel is located in San Francisco, the FOB clause points to a destination contract. The seller may be obligated to: Transport goods to the buyer’s destination Transport at the seller’s own expense Tender the goods at the buyer’s destination Assume the risk of loss during transportation 2) Ex Ship – This means "from the carrying vessel." In other words, the seller may be obligated to: Pay freight bills Ensure the goods leave the ship at destination Ensure the goods get unloaded 3) No arrival, no sale – This is a clause that gives the seller a little bit more leeway. The seller doesn’t assume liability unless the goods are damages due to the seller’s own actions. - See more at: http://www.legalmatch.com/law-librar....ycBZLpga.dpuf

SO, I still think the deal at issue, and the one in Eric's example, is just a shipment contract where risk of loss passed to the buyer.

[bnorth]

Originally Posted by Peter_Spaeth

And your basis for that opinion is what please? The basis for mine is the Uniform Commercial Code, section 2-509. Unless there is a specific provision requiring the seller to deliver at a particular location (a so-called "destination contract"), risk of loss passes to the buyer when the seller delivers to the common carrier.

Right or wrong this is what I do. I pay for cards with pictures of famous dead people through the mail. I don't consider my cards paid for till the seller has my $ in hand. I also don't consider the cards mine till I have them in hand. I don't care how or when they got mailed.

[Peter_Spaeth]

Originally Posted by bnorth

Right or wrong this is what I do. I pay for cards with pictures of famous dead people through the mail. I don't consider my cards paid for till the seller has my $ in hand. I also don't consider the cards mine till I have them in hand. I don't care how or when they got mailed.

That pesky law might disagree with part two.
2) Unless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods, despite any reservation of a security interest and even though a document of title is to be delivered at a different time or place; and in particular and despite any reservation of a security interest by the bill of lading
•(a) if the contract requires or authorizes the seller to send the goods to the buyerbut does not require him to deliver them at destination, title passes to the buyer at the time and place of shipment; but
•(b) if the contract requires delivery at destination, title passes on tender there.

It's really the same concept as risk of loss: title and risk of loss pass together.