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

[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.

[egbeachley]

Originally Posted by Peter_Spaeth

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.

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.

[Peter_Spaeth]

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.

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.

[D. Bergin]

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.

It works two ways. Common sense also tells us anyone could pretend to receive an item in the mail with tracking confirmation, put a slit in the package and say the item never arrived. That would also be the easiest scam in existence.

Unfortunately in Luke's case, the Post Office screwed up and didn't put a "Contents Missing" notice on his package. It has Delivery Tracking (which is all that Ebay requires if this is such a transaction). That would make things a little clearer for an Insurance claim.

A claim could be made by the seller that Luke put that slit in the package himself. They could also claim it was pilfered from his mail box somehow.

As a seller, Delivery Confirmation is the only tool you have going in your favor. You cannot guarantee to your buyer that his mailbox is secure on the other end. He could have a mailbox on the corner of Please-Steal-This Drive and Gold Buillon Avenue for all the seller knows.

If this is an Ebay transaction, Luke could possibly file an Item Not Received claim through Ebay. If Delivery Confirmation shows the package was delivered (sans card or not), the seller can accelerate the claim to be found in his favor, and the defect expunged from his record. If Luke is lucky, Ebay will still pay off the claim to Luke out of their own coffers instead of the sellers, if this is not a recurring theme with his account.

.....or Luke can contact the seller, see what he says and they may be able to come to some sort of an agreement without going through the EBay bureaucracy.

[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.