[eBay] As a buyer, forcing a seller to carry out their part of the sale to get the item instead of a refund - possible?

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• 

  jelko on 08/11/2014 - 03:35

  +14

  No, you can't force them to send you the product. If they don't have the product to give you then all you're entitled to is a refund.

  • 

    skyva on 10/11/2014 - 09:13

    Wrong. See http://www.smh.com.au/articles/2007/08/03/1185648121130.html

    The issue is not that you cannot force them, the issue is that it costs more than the transaction is usually worth to enforce it.

    Just tell them you will leave negative feedback, which is appropriate in the circumstance.

    • 

      exonerate on 11/11/2014 - 03:00

      Interesting article, thanks for linking it

    • 

      Parentheses on 11/11/2014 - 03:10

      +1

      This is completely wrong - you skipped over half of the comment you replied to.

      The case you are referring to involves a seller who has the product they don't want to sell, which is 100% irrelevant to the case of a seller who doesn't have the item they listed.

      You cannot force a merchant to provide you with something they don't have, all you can do is get a refund.

      • 

        exonerate on 11/11/2014 - 03:16

        +1

        There is nothing to suggest that the seller in my scenario does not have the product. The essence of my predicament is that I am in limbo with uncertainty at the discretion of the seller in regards to what their next step will be.
        I am waiting for either postage and delivery, or confirmation from the seller in response to my inquiry on the status of my transaction as it has been 5 business days out from the estimated delivery date (no indication of postage or anything) and I haven't heard from them in 3 business days since.
        So yes I know that in the end I'll get a refund and leave feedback, but I was seeking some general discussion on whether or not I could try to ask them to follow through with the sale.

      • 

        skyva on 11/11/2014 - 09:42

        -8

        Yes you can force a merchant if they don't have it. The seller can just go out and buy another one and resell even at a loss, or reimburse the difference between the contract price and the reasonable price of another item.

        The point is that 99/100 it is not worth the hassle so you just leave negative feedback.

        It is contract law 101.

        Of course if you have a case that suggests otherwise we would be happy to see it. Not sure why people want to claim they know what must be done in this case (i.e. enforceable actions through the law) when they know nothing about the law.

      • 

        foobarbaz on 11/11/2014 - 17:29

        +1

        @skyva:

        You're half correct. Generally damages are awarded rather than specific performance. Damages would include the difference between the contract price and the reasonable price of an identical item sourced elsewhere plus some other consequential damages depending on forseeability, mitigation undertaken by the aggrieved party and other factors.

        Specific performance is seen as quite draconian; indeed, it would require forcing someone to do something against their will. In this case it would be to deliver the item promised. For the most part, this is not the remedy that is awarded. There are exceptions though. If the item is particularly rare, the sale was for a specific item, or damages simply would not suffice to do justice in the case, then the court may, in its discretion, award specific performance. Such was the case in the article you linked earlier: http://www.smh.com.au/articles/2007/08/03/1185648121130.html. It would not apply to a case where the item is fairly ordinary and easily sourced from elsewhere.

        The bottom line is that, practically speaking, a refund is the most likely result. If you're buying vintage planes or other expensive, rare items then going to court to get specific performance may make sense.

      • 

        skyva on 12/11/2014 - 10:37

        -1

        @foobarbaz:
        Seems you just said exactly what I said but 3 times longer. Shame you have no-one to bill:)

      • 

        foobarbaz on 15/11/2014 - 04:51

        @skyva:

        Seems you lack even basic reading comprehension skills let alone basic legal skills so you should probably not criticize others for knowing "nothing about the law". Let me make it very simple for you: No, in general, you can't force a merchant to sell you an item regardless of whether they have it in their possession or not, unless the item is particularly rare, unique or falls within one of the exceptions I mentioned.

        In case you're still confused, that is virtually the opposite of your assertion, "Yes you can force a merchant if they don't have it."

  • 

    Ramrunner on 10/11/2014 - 14:48

    +3

    The above is true. I have in the past however had this happen to me and with gentle persuasion was able to get the item (the buyer had to source it from head office or something). In short it depends on the seller, and how willing they are to provide good service. I can tell you it appears nagging and threatening almost never works. Ask nicely is the only go.

• 

  Nutrino on 08/11/2014 - 08:29

  +6

  Out curiosity what items are we taking about?

  • 

    [Deactivated] on 10/11/2014 - 18:48

    +13

    I always wonder why people are so vague about the purchase they are discussing in topics like these. Unless it is a buttplug or fake arsehole just tell us what you were buying.

    • 

      bowdo on 10/11/2014 - 20:27

      +9

      My money is on the fake arsehole.

      Seriously, I've been waiting for it to arrive for 5 weeks now.

    • 

      exonerate on 11/11/2014 - 02:58

      +6

      The item was intentionally omitted as I wished to open a discussion based on the objective principles. If I included details regarding the specific item, it would have introduced subjective bias.
      e.g. if the item was cheap, then majority of comments would be to suck up and take the refund - who cares
      and if the item was expensive, then maybe more people would be trying to find a way to get the item and score a good deal.
      I realise that in the end it's most likely going to be issues of communication, a refund and some feedback, and I'm okay with that. I was just wondering what the thoughts on the discussion were, on both sides of the question.

      • 

        forever saving on 11/11/2014 - 10:15

        +1

        I agree, but can you tell us what it is after this blows over please.

      • 

        jaybmate on 11/11/2014 - 12:53

        +2

        @forever saving: its a headset, he already mentioned it earlier, buried in a giant comment below.

      • 

        [Deactivated] on 13/11/2014 - 00:26

        +1

        Not an entirely unreasonable point, although I do find it amusing that a site that is dedicated to finding bargains and saving money has so many of its members tell people not to pursue their consumer rights when they are ripped off, especially from places like eBay.

        I hope you find a remedy for your problem.

      • 

        Ughhh on 13/11/2014 - 00:40

        @Juddy:

        although I do find it amusing that a site that is dedicated to finding bargains and saving money has so many of its members tell people not to pursue their consumer rights when they are ripped off, especially from places like eBay.

        Some things are worth pursuing. Some things aren't and are not worth the time and effort, pursuing it could possibly put you in a worser financial and emotional position, especially if it involves lawyers.

        In the end, it could put you back to square one, which in this case is just a refund. When you're in that position, you're doing the opposite of saving money. Of course all this depends on the value of the item, for a $20k item I would definitely pursue, but would you pursue a low priced item where its probably cheaper than 1hr of a lawyers time?

• 

  p1 ama on 08/11/2014 - 10:08

  +5

  As a buyer, can I specifically force the seller to perform their part of the sale and provide me with 2 of the items exactly as I have purchased, same model and make.

  You can't unfortunately, a refund is all you can get, despite that being unfair due to your time and effort lost. If you were a retailer and a buyer 'purchased' an item off you and you find that you are out of stock, what can you do? Nothing much apart from a refund really.

  • 

    Almost Banned on 08/11/2014 - 10:59

    -5

    Well, perhaps you could either:
    1. not offer items you don't have
    2. source the item from your regular suppliers so you could actually comply with your promise
    3. source the item from non-regular suppliers
    4. compensate the buyer for the inconvenience of being stuffed around because you were too stupid to not offer for sale things that you do not have

    Just a few options off the top of my head…

    • 

      p1 ama on 08/11/2014 - 12:19

      +6

      Except the seller is not obliged to do any of these things.

      The question which was asked was whether OP could force the seller to proceed with the sale instead of a refund and the answer is no, OP cannot force the seller to proceed with the sale.

      As to your suggestions, you're implying that said item can still be sourced. There are times where that isn't possible. But either way, this is irrelevant, the answer to the question is no, I'm sure if we wait long enough, some ACL expert will give an essay as to why that's the case.

      • 

        Almost Banned on 08/11/2014 - 14:01

        My post was in response to your question:
        "If you were a retailer and a buyer 'purchased' an item off you and you find that you are out of stock, what can you do?"
        I believe my posted answered that question.
        Is it really that hard to keep track of how many items you have for sale? That is a legitimate question by the way - I really don't know the answer. It would seem to me that stock control would be a pretty basic and important function of any store - online or otherwise.

      • 

        This Guy on 09/11/2014 - 19:52

        +4

        @blaircam:

        Many sellers use drop shipping, meaning the supplier ships stock from their warehouse. This allows merchants to offer a large range and at a lower price (as overheads are lower). But if two people buy the last item from two different merchants at the same time, one has to either wait for more stock or miss out.

        Big-box chains (like JB, HN and DS) also have to manage stock across a network of stores. Staff can make mistakes and items may be misplaced, damaged or stolen. This is normally picked up at stocktake, but stores can't stocktake every day, so sometimes items that aren't available are left in the system and sold online.

      • 

        Innately Incognito on 10/11/2014 - 02:08

        +4

        @blaircam:

        It's very straightforward in theory but occasionally things will occur that cause stock counts to get messed up. Usually it's easily rectifiable before you end up selling items you don't have but stock getting damaged is the one I've seen that have thrown out counts the most.

        If the last few of a particular SKU are damaged you often won't notice until you go to pick that stock for an order. You can pretty easily go from thinking you have three sellable items to finding out you have three damaged items.

        Similarly, if you're selling the same item across multiple channels (e.g. eBay, online store, physical store) and the stock count doesn't update instantaneously then you can potentially sell a product you don't have, again entirely by accident without malicious intent.

        Also, re: your previous comment about sourcing the product from regular supplier - depending on the product/method of shipping it may be a lengthy process. It's not applicable to the item required by the OP but in the furniture business there's commonly ~90 days between the order being placed and it arriving in Australia.

        Perhaps it's because I'm an eBay seller myself (albeit furniture rather than headsets) but I find it pretty harsh that you'd assume a seller is 'stupid' for what's most likely an honest mistake :(

  • 

    plmko on 08/11/2014 - 13:15

    +1

    Not unfortunately, fortunately. Boohoo you lost some 'effort' buying the item, imagine how much time with admin the seller has to go through to check stock, process refunds then put their reputation on the line so you don't neg them with your self-entitlement.

    Perhaps if the seller was stalling with your money, that's a different story.

• 

  nexus4 on 08/11/2014 - 12:50

  1) Buy from store on clearance.
  2) Either
  i) get refund for the ones you purchased online; or
  ii) get all four products. Sell two.

  Seeing as (i) seems more likely on the facts you've described I don't see what the huge deal is.

  You ultimately can't force someone to provide you with something that they don't have.

• 

  Cheeper on 08/11/2014 - 15:39

  +3

  You cannot "force" any retailer to sell you anything.
  If you have already paid, then their only obligation is to refund.

  Retailers have the option to choose who they sell to. (so always be nice lol)

• 

  goosegog on 08/11/2014 - 19:37

  -2

  Disagree - if the goods were shown as in stock + seller accepted payment, then the seller is obligized to provide the goods- may be have to wait a while should they be out of stock but it will happen - keep in touch with them.

  • 

    p1 ama on 08/11/2014 - 19:41

    +1

    Whilst I agree with you in the moral sense, in that if the seller accepts payments then the seller should be obliged to do their best to source and provide the goods, unfortunately this isn't something you can agree or disagree with as the law is pretty clear cut here and the seller is under no obligation to provide the goods.

  • 

    Innately Incognito on 10/11/2014 - 02:24

    +1

    Seems a tad harsh. If an online retailer made a mistake by offering a $100 item for $1 (i.e. if price were entered in cents instead of dollars) then anyone with a credit card could potentially buy $10,000 worth and force them to fork out $1,000,000 of products?!

    Any Australian company who made a genuine mistake would be pretty easily bankruptable - which is probably not what we want happening. If they do it deliberately I assume it's punishable via the ACCC?

    Also, I like the word obligised/obligized :)

• 

  exonerate on 09/11/2014 - 01:37

  Hello again everyone !
  Firstly, thank you all for commenting and replying with such consistent answers, it was super helpful and quick and for that I appreciate it.
  I spent some time googling before I posted and a majority of the answers were in regards to auctions etc rather than buy it now, so I wasn't too sure if there was a definite answer.
  On the other hand, I am a bit put out by all of this, if this is the case, a few things lead me to believe that what occurred was an enforceable 'contract of sale' or 'transaction of exchange of goods in return for money' sort of scenario, the goods were listed as in stock and all ready to be delivered.
  Not to mention that every time you click buy it now, there's a little eBay message saying are you [the buyer] sure you want to commit to purchasing as it enters you into a contract of sale and you [the buyer] are obliged to pay the seller etc, so I thought that also works in reverse whereby they are now obliged to gimme the goods !
  In response to some comments above (apologies in advance, I don't know how to tag)
  jelko - thank you for being the first to reply with such a concise and straight forward answer
  Nutrino - it's a headset
  paulsterio and blaircam; interesting discussion; I do think it's a bit unfair if the seller has no obligation, why are they selling things they don't have ! Why would the rules for eBay differ from everywhere else. In a physical store, you only take payment for what stock you have and that's the transaction there. In online stores (clothes, games etc.) you take payment and deliver the goods, never heard of any other online store able to just not send goods and refund, yes I've heard online stores in some cases have delayed but in the end there's always delivery of the goods. And in a broader commercial sense with contracts of sales and business transactions, if you have an agreement, and given over some consideration (money), it then becomes binding on both parties to complete their obligations, and seeing as the eBay seller, who is a company/business in Australia took my money, I've completed my side of the bargain, how come they have the option to renege.
  plmko - boohoo not so much in regards to effort, more so in regards to misleading practices and unreliability, seems a tad bit shoddy to take money first and decide what the seller feels like doing afterwards. I don't believe it's self entitlement so much, as reference to above, I thought there was a transaction which gives rise a valid right.
  nexus4 - I'm a casual eBayer, never sold anything online before so that's why I was hesitant. And similarly, why create a listing and make a sale for something they don't have to provide.
  xywolap - Yup, I always try to be nice and rational, hope they help me out in the end
  goosegog - Agree ! I hope their communication improves come Monday
  -paulsterio; what law is that in regards to? I thought the brief law I described earlier was more relevant and applicable, that there should be some sort of transaction that is binding taking place? Interested to hear whether it's an eBay thing or if the law is in fact 'you can never force a seller to provide the goods which you have paid for'
  Will keep you guys updated !

  • 

    p1 ama on 09/11/2014 - 09:41

    Think of it in reverse. Let's say you enter into a contract of sale on eBay and you suddenly lose all your money for some reason. Would you say it's fair if you had to pay up even though you have no money?

    • 

      Almost Banned on 09/11/2014 - 17:10

      +1

      Yes.
      If you have entered into a valid and enforceable contract the amount of money you have is immaterial.

      • 

        p1 ama on 09/11/2014 - 17:53

        You see, this is where the water gets murky. I'm not a lawyer, and I don't want to come across as a keyboard lawyer, but this is what I know from research.

        If you buy a house, both parties have to sign a contract of sale, heaps of information about that on the internet from state authorities. More or less, the agreement is that the seller is going to sell the house to the buyer for a specific amount, the seller is going to provide the house and the buyer is going to provide the money and that the contract is legally binding. Of course, there is always an exit clause (cooling off period), because as we all know, things can happen, e.g. someone can lose their job and not be able to afford a house…etc. The law is clear in this area because a house is a large purchase.

        With stores, there has never been a need for a 'contract of sale', because it's always been simple, you rock up with the money, they have the product and there is an exchange. The law is very clear cut when it comes to brick and mortar stores. Prices are an invitation to treat until an agreement has been implied when the customer comes up to the desk and does the transaction. Plain and simple, no real room for argument or trouble.

        However, when you start exchanging money for something that is not present, this is where the water gets murky. Let's say the store is out of stock and they say that they can get the item in for you, you pay a deposit and leave. In the mean time, the store will do what it can (on a best efforts basis) to get the item in for you. If they cannot, then they will refund your deposit. However, this is murky because there is never a contract signed and it is all implied. This situation is still clear, because both parties know that there is a chance the store might not be able to get the product in.

        Now, the problem starts when you have these internet transactions. The inherent problem with internet transactions is that they require the purchaser to pay before any commitment from the seller. The truth is, no online store should be entering into a contract to sell before it is 100% sure that it can deliver. Inventory systems fail sometimes, people make mistakes and computers aren't always infallible. You see, here is the problem - in a normal face-to-face transaction:

        1) Seller issues an invitation to treat (I'll sell you X for $50)
        2) Buyer sees product and approaches seller to buy
        3) Buyer signs contract agreeing to buy
        4) Seller signs contract agreeing to sell
        5) Money exchanges hands, product exchanges hands

        With internet transactions, step 4 doesn't happen, money exchanges hands before the seller has agreed to sell. To think about how ridiculous this is, it would be like walking into Dick Smith, taking a PS4 game from the shelf (usually an empty box), paying for it first, and then the assistant going to find the disk, it's a completely illogical way of doing business.

        So I don't think the law has really caught up in that regard, perhaps someone would like to prove me wrong, but I think the issue with all of this is that it's all complicated because step 4 never happens. Think of a price error, in a bricks-and-mortar store, if you scan a product for cheap and take it to the counter and they say it's a price error, no money changes hands, everyone walks away, everything is easy. For online stores, you pay first, before the store has a chance to verify the order and agree to it. That's the issue.

        Anyway, my point is, it's murky and I don't really know what can be done about it. But it's unclear whether a contract has been entered into or not and what the terms of the contract are.

        If you have entered into a valid and enforceable contract the amount of money you have is immaterial.

        Also, on the point which you raised, I mean in the situation of impossibility. What if you actually physically had no money with which to pay? What if you wanted to buy an item that is a one-off that the seller has lost. There has to always be exit clauses in contracts like this, it can't be that level of black and white.

      • 

        retiredfeline on 09/11/2014 - 18:02

        @paulsterio: Paul, I think you picked an unfortunately counterexample for the buyer. I think it's simply the case that even with a contract of sale there are various outs for the seller, such as force majeure, e.g. the warehouse burnt down, or less dramatic ones like end of stock and no more of the model are available. "While stocks last" is a big out for example.

      • 

        p1 ama on 09/11/2014 - 18:05

        +1

        @greenpossum: Yeah definitely, but the point I'm trying to make is, with bricks-and-mortar stores, prices are only an invitation to treat. If you rock up and try to buy something and they don't have stock, no contract is entered into because no money changes hands.

        With internet transactions, money exchanges hands before the buyer gets a chance to validate that they still have stock remaining. It would be similar to paying for a TV at Harvey Norman before they go out back to see if they have it…etc. It's not logical.

        I don't know if I'm making myself clear or if you get what I mean, but I think that's a genuine issue with purchasing online that's really murky.

      • 

        goosegog on 09/11/2014 - 18:14

        +2

        @paulsterio: Go have a cup of coffee or a beer & relax !! It's Sunday

      • 

        p1 ama on 09/11/2014 - 18:29

        @goosegog: Yeah, probably should, too much thinking in a day.

      • 

        SirFlibbled on 09/11/2014 - 19:56

        +1

        @paulsterio: Buying online is still an offer to treat. You'll often find in T&Cs of websites which states that a contract has not formed until they have dispatched the item.

      • 

        p1 ama on 09/11/2014 - 20:59

        @SirFlibbled: Well that clears everything up then!

      • 

        nexus4 on 10/11/2014 - 06:35

        @paulsterio:

        Just wanted to say, as someone familiar with contract law most of this is wrong.

        'With stores, there has never been a need for a 'contract of sale', because it's always been simple, you rock up with the money, they have the product and there is an exchange.'

        A contract does not have to be written - every time you buy something you enter a contractual relationship. There is a contract of sale, it's just not tangible.

        'With internet transactions, step 4 doesn't happen, money exchanges hands before the seller has agreed to sell.'

        That is wrong.

        It IS a very complicated area of law but not for the reasons you've given. At the end of the day, if you breach a contract (e.g. the seller in this situation) you are liable to pay damages to the innocent party. Damages in this case would be the money that was paid (i.e. a refund).

        There is a lot more to it when it comes to things like price errors (AKA unilateral mistake) and that is a very unsettled area of law in Australia. But for the purposes of this situation it's pretty clear. If seller doesn't deliver that's a breach of contract which entitles the buyer to a refund.

  • 

    bargainbunny on 10/11/2014 - 17:59

    +1

    Unfortunately this is the nature of online shopping :( Most retailers have it written into their policies if you look closely enough. Is it ideal for the buyer? Not always.
    As a buyer I understand how you feel, the same happened to me a few weeks ago with a very big retailer. I purchased a few items online with a discount coupon code. At the last minute they refunded me on one gift set I REALLY wanted. When I contacted them I was advised that they ran out of stock in their online dispatch warehouses (so they still had them in their stores right?). I would have preferred some communication prior to my money being given back or a raincheck but nothing was offered. Three days later it was back on sale online at a higher price. Frustrating but is it worth my time chasing my tail with them? No.
    It's disappointing when you don't get what you paid for because you feel that you've made the purchase in good faith and you await it's arrival but in the online world nothing is guaranteed to you. Personally I think much of it comes down to customer service. I purchased something at the start of the year from another large online retailer. They do not deduct the money until items are ready to be dispatched. They ran out of stock in the size I'd ordered so they called me up, explained and offered me choices to remedy. That's what I call customer service!

• 

  msmhw on 09/11/2014 - 18:27

  +2

  If its possible buy it from store and use it. If you received you order from ebay take it and return it to store for any reason that acceptable. I can't see why you can't do it this way

• 

  isthisreally_me on 09/11/2014 - 20:00

  Get refund & go elsewhere, as if the store has no stock there is no way to force them to sell you the item.

• 

  punter1 on 09/11/2014 - 22:43

  -3

  You should name & shame this ebay seller.

• 

  exonerate on 10/11/2014 - 04:48

  I did some research into eBay's terms of use as outlined below, and it seems to suggest that the default position should be that a normal sale should be followed through with the buyer receiving the item, rather than what has been suggested that the seller has a discretion whether or not to proceed with the sale.
  It is my interpretation that the seller is now obliged to comply and provide the item and the only exception is some additional unusual or onerous circumstance.
  However, in my case here, the seller is a fully functional company, is not bankrupt or out of money, has listed the item as in stock and is still continuing to sell the item so there is nothing to suggest they have no stock.
  However as I bought on sale with a free shipping bonus, while there could be stock in store (it could be anywhere in AU) giving rise to the risk that because it is now more costly for them to source the product in they could just opt for a refund and cancel the deal.
  Also due to the uncertainty of what their intentions and actions are, if I were to go in store and purchase it and if I receive the items purchased online and go in store to return those (as msmhw suggested), I would then again be at their discretion and mercy whether or not they would accept my refund or return purely on change of mind.
  And in response to isthisreally_me; due to uncertainty with their lack of communication, I don't know if they're going for a refund or just delaying delivery, so if I do anything preemptively now, I'm going to end up with a surplus of units and over spent my budget.
  Thank you for your comments and discussion, I'm interested to see how you respond to what I've outlined, and was wondering if anyone has any personal experiences regarding a similar situation of wishing to receive an item instead of a refund and how did it go?
  eBay User Agreement: http://pages.ebay.com/help/policies/user-agreement.html
  Using eBay:
  - fail to deliver items sold by you, unless you have a valid reason as set out in an eBay policy, for example, the buyer fails to follow the posted terms or you cannot contact the buyer [don't know what these policies are; I couldn't find much out about it]
  Purchase Conditions:
  When buying an item, you agree to the rules for buyers and that:
  - You enter into a legally binding contract to purchase an item when you commit to buy an item or if you have the winning bid (or your bid is otherwise accepted). [applicable]
  - For motor vehicles and real estate, a bid or offer initiates a non-binding transaction representing a buyer's serious expression of interest in buying the seller's item and does not create a formal contract between the buyer and the seller.[inapplicable]
  Selling Practices: http://pages.ebay.com/help/policies/selling-practices.html
  You should also make every effort to provide excellent customer service from start to finish, including:
  - Making sure the item is delivered to the buyer as described in your listing

  • 

    Innately Incognito on 10/11/2014 - 10:22

    In my mind the easiest option is to try and contact the eBay seller (phone call if possible) to notify them that you would like to cancel the sale as it's taken too long for the item to arrive. However, this assumes that a lengthy amount of time has passed, because according to the 'eBay policy' linked they have ~30 days to send the item. Alternatively, purchase the item(s) from the store and lodge an item not as described claim and state quite clearly that you wish for a refund as you've had to purchase the item elsewhere and been unable to contact the seller.

    However, I can't really recommend throwing out the 'item not as described' claim if the seller is trying to be helpful because it does actually impact the hidden feedback ratings and can place selling limitations on accounts if it happens frequently enough.

    Assuming you purchased via PayPal you can potentially speak to PayPal as they will 99% side with buyers in these matters.

    Just regarding the 'legally binding contract' I wonder if eBay buyers realise how often a sale gets cancelled by a buyer because they input the wrong bid price, or bought the item incorrectly, or bought the item in a store, or perhaps just never communicate/pay for the item. After taking a quick look at statistics from our eBay store there seems to be a non-payment/cancellation rate of roughly 10-15% only given how skewed eBay is towards customers it's never really enforced - because if a seller does try to enforce it they will inevitably somehow receive negative feedback from a customer.

    I'm not making excuses for sellers as I think great customer service is something that should be provided, but it is food for thought.

  • 

    SirFlibbled on 10/11/2014 - 10:34

    Just because they are trading through Ebay doesn't mean the Australian Consumer Law (with all the ins and outs that it entails) applies.

    That being said, you do have a right to enforce the contract BUT the time and effort it'll take is simply not worth it.

    Best you can do is report them to EBay and give them a Neg and move on with your life.

    • 

      Gina Rinehart on 10/11/2014 - 22:00

      +1

      If it is an Australian seller, then ACL certainly applies, but if the store is not located in Australia it's more of a grey area and certainly cannot be enforced directly on the overseas seller.

      • 

        SirFlibbled on 11/11/2014 - 14:01

        to be clear, I meant that using Ebay doesn't negate the ACL. Not that the ACL doesn't apply.

        That being said, it doesn't always apply to Ebay sales. If a seller is not in trade or commerce (ie I'm selling second hand goods while I clear out stuff from home) then it wont apply.

        OS sellers who list on Ebay.com.au would come under the ACL, although enforcement it clearly an issue.

• 

  tramperleo on 10/11/2014 - 08:38

  +1

  Don't think anything need to discuss about law, consumer rights, etc. It's just about communication and understanding.
  The stock management is not as simple as someone think. Sometimes there're something unexpected and there are rules and procedures for stock update. For a big store with lots of staff and thousands of different products, it's just IMPOSSIBLE to keep 100% accurate record of all products at any time. Update immediately for any accidentally changes is only theoretical, or only applicable for small private sellers. For a medium to large store, it's just impossible, nothing else.

  • 

    altomic on 10/11/2014 - 13:14

    +2

    I sell alot of stuff on ebay. Once I ran out of stock of a particular item and only realised when going to the shelf to pack and order. emailed the guy that I was OOS and had refunded his cash (within 2 hours of payment). dude still gave me a neg. which sucks, but my bad for not monitoring stock better.

• 

  [Deactivated] on 10/11/2014 - 15:18

  +2

  Some good comments here, but in my legal opinion (though I am not a specialist in contract law) the crux is this:

  There is a definite grey area in whether the ebay listing is an invitation to treat or an offer. While there was an intention by the seller to be bound, binding the seller here would be 'commercially inconvenient' (Boots) - my view is the offer (ie. sending the money) was rejected, and the contract is non-existent. A refund of that money is due to you.

  Any remedies for breach of contract would likely be damages, to put you in the place you would have been had the contract be completed - you are only entitled to your money back, not any higher value of the item. You ask here about the equitable remedy of specific performance - making the seller sell you the product - it is generally only available where damages are not, so very unlikely.

  In practice, unless the item is worth thousands, and you are happy to spend $500 or so to fight it, just take your refund.

  I am a solicitor but this advice is not intended to be comprehensive nor does it constitute legal advice.

  • 

    exonerate on 11/11/2014 - 03:05

    Thank you for taking the time to comment. I was more interested in the underlying principles and your concise summary of the issues brings clarity to the vagueness of my ideas.
    Much appreciated !

• 

  Gina Rinehart on 10/11/2014 - 22:00

  +2

  I don't think you have the right to receive the product, really. You say you appreciate everyone's answers (which are mostly that you deserve a refund, but are not entitled to the product), but it doesn't look like you actually read that or took it into consideration and seem fixated on getting the product.

  In the end, you can leave a negative feedback, get your money back (obviously) and move on.

  • 

    exonerate on 11/11/2014 - 03:08

    +2

    I did read and acknowledge almost everyone's responses and from my first comment I had accepted the consistency of the general consensus. My second comment was just in the hopes of fostering some two sided discussion, but that's okay, for the sake of completeness, I'll try to update the thread again whenever the issue is resolved.

• 

  Azn310 on 11/11/2014 - 02:11

  +1

  As an ebay seller, small business owner, i think buyer deserves good communication and responses when things like this happen, as well as compensation for the inconvenience. Because getting business from a buyer is not that easy.

  I know a lot of chinese ebay sellers would want to refund you 50% the amount you have paid (yes even 50c out of the 1 dollar product that they have shipped to you from china) the minute they receive your complain message, doesn't matter what the complain is. Lets not discuss quality, but rather customer service from far away. Dont know about you but it cooled me down a lot.

  If i was to issue a refund due to no stock, i would send a complimentary item along with the refund to at least show that i care. Big businesses are just too slack because lets face it, what are you in the tens of thousands of dollars of revenue they earn everyday?

  • 

    exonerate on 11/11/2014 - 03:11

    You sound like a great seller and make some interesting points. I agree that communication is the crux of it all, and they've been ignoring my query going on 3 business days now. Guess I'll just wait and see.

• 

  p1 ama on 11/11/2014 - 10:46

  +5

  Exonerate,

  I don't understand why this has been going on. The situation already has a solution and I think you've been making a big deal out of it as a point of righteousness over the seller and nothing more. You think you are right and you just want to prove it and force the seller to do what you want them to do, without any regard for the final outcome at all, that's not practical for anybody. From a practical point of view, if the seller is happy to refund, just take the refund and go purchase it at the store you said was offering a good price.

  I don't understand why you think you'd end up with double the amount if the seller wants to refund, if the seller wants to refund, they'll be giving you back your money.

  Problem solved. No point in messing around with a seller when you don't even have to. Just take the refund and purchase at the store for a happy ending for all involved. At the end of the day, it isn't even like this is a big ticket item, it's just a pair of headsets.

  Just be happy you're still getting a good price after it all, move on, live and let live. No point pushing the matter when it's clear that there isn't any point.

  • 

    exonerate on 11/11/2014 - 15:10

    Hi Paulsterio,
    I have already acknowledged the general consensus that the outcome is most likely a combination of communication, refund at purchase price and feedback.
    The 'big deal' was just one additional comment hoping to foster discussion, but as that was unlikely I also acknowledged that I would just update the thread at the end with the outcome for the sake of completeness.
    Your next few lines 'You think you are right … from a practical point of view … etc." are worded a bit more vindictive than what was my intention of seeking a discussion of the principles beyond a simple solution to my own case, and if this was misinterpreted as stubbornness or foolishness then I apologise I was not any clearer but you've made some assumptions yourself, and I do not apologise for that.
    In regards to why this 'has been going on', it was not by my own design, I would suggest that for some reason once it has reached ozbargain's front page under 'Hot Discussions' and receiving more exposure, new members would chime in with their additional opinions on the discussion, which is the purpose of forums and discussion, sometimes it's to find a solution, but other times it can just be that - a discussion. While I already have acknowledged that the situation already has a solution, I cannot stop others from posting their own experiences - and there is nothing that should stop them from expressing their own thoughts and opinions.
    As OP I thought it would be rude to ignore everyone who has taken the time to help me and if they take time out of their day to read and comment, then I think it's only nice and fair for me to appreciate their efforts.
    If you however believe that this thread is well and done with, then you can also move on, nothing is forcing you to return to this thread, whereas I am the OP it make sense that I have more of an inclination to return to my own thread and thank everyone and provide updates.
    I think you have also made this a big deal on the point of righteousness in coming back to post that comment based on a few assumptions yourself for your own satisfaction.
    And in regards to 'double the amount' line, if you had read properly my initial facts this is in regards to the underlying uncertainty of my position and whether I should have purchased the identical in store and if they follow through with the eBay transaction then I'd end up with double - as a side note this is no longer feasible as the store no longer has stock in suburbs close to me.
    And finally; you've just proven the inherent subjective bias of why I chose to omit the product details in the first place, I know that because it is a normal unimpressive purchase then you're thinking who cares, what's the fuss all about and my response to that would be is that it is all relative, what I can consider to be something I really wish to receive, something that is a bit expensive and out of my budget or something that is too far for me to go and buy - could be something that is banal for you, within your disposable income and your radius of distance willing to go to etc.
    So thank you for your initial replies, but I don't really appreciate you coming back to me to just summarise what I have already acknowledged with such an inherently superior tone and attitude and take a few thinly veiled jabs at my own personal character when I have been nothing less than rational and accepting.
    It is clear that there isn't any point to your comment.

    • 

      p1 ama on 11/11/2014 - 16:06

      Your next few lines 'You think you are right … from a practical point of view … etc." are worded a bit more vindictive than what was my intention of seeking a discussion of the principles beyond a simple solution to my own case, and if this was misinterpreted as stubbornness or foolishness then I apologise I was not any clearer but you've made some assumptions yourself, and I do not apologise for that.

      Well I don't intend to be vindictive, if you had already resolved the problem, I think it would be a good idea to update the opening post with your solution and what ended up happening so that we're all aware that it's been resolved and now it's simply just a discussion. I was under the impression that you still didn't know what to do.

      I think you have also made this a big deal on the point of righteousness in coming back to post that comment based on a few assumptions yourself for your own satisfaction.

      Not really, I don't get any satisfaction out of this. I'm just pointing out that there's an easy solution to your problem should you choose to resolve it that way.

      as a side note this is no longer feasible as the store no longer has stock in suburbs close to me

      Well instead of talking about it for so long, you could have taken active action and you would have what you want by now.

      So thank you for your initial replies, but I don't really appreciate you coming back to me to just summarise what I have already acknowledged with such an inherently superior tone and attitude and take a few thinly veiled jabs at my own personal character when I have been nothing less than rational and accepting.

      Why would I have any reason to give you attitude and send jabs? I simply pointed out that there's a clear, rational and easy to understand solution to your problem and had you decided to act earlier, you'd have your product and you'd be using it by now, rather than pointlessly going through eBay's terms and conditions. What do you want more? To win your battle with the seller or to get your product.

      It's the whole adage of winning a battle, but losing the war.

      That's the point I was trying to make. At the end of the day, I want you to have your product, otherwise I wouldn't care and I wouldn't even think twice about this situation. It just makes no sense why you haven't taken any active action. Shame it's out of stock now though.

      • 

        exonerate on 11/11/2014 - 16:21

        Um, I think there are a few more misunderstandings.
        I am in limbo. Uncertainty with the communication with the seller so it is unresolved, but I've accepted the fate of my outcome (being a refund etc.) So I'm still going to update the post when it's resolved officially, but right it's a waiting game which I've indicated above.
        In this limbo uncertain state it prevents me from getting the item in an alternative way - essence of the problem; either wait and result in; get the item/ don't get the item (break even/ break even but lost of opportunity) or go out and buy the item and then wait to what the store does; either store agrees to refund / carry out with delivery (break even with risk / double up on items and then whole discussion on "can I force a seller to give me a refund purely on change of mind and my mistake blah blah" haha
        Taking so long? Acted earlier? I've already contacted the seller, awaiting their response. I don't want to escalate to a paypal dispute too soon as I'm giving the seller a chance at communication to work it out with me first.
        At the end of the day I am in an uncertain position and I went on ozbargain.

      • 

        p1 ama on 11/11/2014 - 16:54

        In this limbo uncertain state it prevents me from getting the item in an alternative way - essence of the problem; either wait and result in; get the item/ don't get the item (break even/ break even but lost of opportunity) or go out and buy the item and then wait to what the store does; either store agrees to refund / carry out with delivery (break even with risk / double up on items and then whole discussion on "can I force a seller to give me a refund purely on change of mind and my mistake blah blah" haha

        Most stores allow you to return stuff provided that you haven't broken the seal, examples are JB HiFi and Dick Smith. Some stores allow you to return your product even if you have broken the seal, such as Officeworks. Your best bet was to have bought it from a store and not broken the seal until you work out stuff with the eBay seller.

        That way, if the seller decides to refund you, you have your product for a cost you are happy with from the store. If the seller decides to ship you the items, return the ones you bought from the store and you're happy with the price as well.

        That would have been the happy solution and it was what I was trying to convey.

      • 

        exonerate on 11/11/2014 - 17:08

        -1

        @paulsterio:
        It's easy with the benefit of hindsight to think that is the most obvious and clear way to hedge my bet with apparently low risk, but a few factors which complicate the issue and made me hesitant to take the risk was that the items were sold 'reduced to clear', 'on sale' and different companies have different return policies on; normal stock - yes to the above; and sale/reduced to clear stock - sometimes a bit tighter; who knows. Then it'd involve me digging through the store's Ts and Cs to find a clause that says, oh look I can force you to give me a refund due to change of mind within XX days when no seals are broken, it's brand new and you have to comply, but the store could easily say there is no mention of 'reduced to clear products' etc, and I'd be back here asking 'how can I force someone to give me a refund' and give you another opportunity to take the alternative and bring up any selection of policy considerations why I'm stuck with a bad bet.
        Another consideration is that I'm referring to the same physical store retail chain in AU who has an eBay store page as well. And I've imputed the lack of transparency in their communication and customer service from the eBay store to the physical store and simply put; I was not confident in their customer service to make such a hedge as the possibility of risk could have been higher than the norm.

      • 

        p1 ama on 11/11/2014 - 17:18

        +1

        @exonerate:

        That's completely fair enough. Either way, my apologies if I appeared to be rude before, I was just thinking that there was a clear and easy solution, but the fact that it's the same store as the eBay store does make it seem complicated, but completely sympathise with your situation being a particularly odd and interesting one.

      • 

        exonerate on 11/11/2014 - 17:23

        @paulsterio: My thanks to you, it was an enjoyable discussion on the whole.

• 

  [Deactivated] on 11/11/2014 - 18:09

  +1

  A legally binding sales contract is made when the consumer completes a payment (and in the case of lay-by, the amount is 1/3 of the total sale price). The supplier has an obligation to complete the sale unless several conditions apply, none of which involves the goods being out-of-stock on the supplier's end. As previously mentioned, if the supplier has other alternatives to fulfil the supply of goods, the supplier must make every reasonable attempt to do so, even if it is at a financial lost.

  Whether or not it is feasible to "force" the supplier to fulfil the contract is another debate. Consumer laws works both ways and in this case, the supplier has accepted payment and the consumer has lost the opportunity to purchase elsewhere.

  Fulfilling a contract is not a matter of personal principle or opinion, and shouldn't be taken lightly. The proverbial other side of the same coin would be if you purchased a laptop on instalment, and you're unable to service the repayments, you are still liable for all expenses due as you've accepted the laptop. You're not entitled to a refund even if the packaging is intact. Not having money to reimburse the supplier is similar to not having stock to supply the consumer. The supplier has lost the opportunity to sell to someone else.

  Personal opinion - It is fine to be a lazy consumer. I will readily admit that for low-cost items, I'm a wilful pushover, however, criticizing someone who has the intention of enforcing the rights that protect all of us is nothing short of stupid.

• 

  BoomTetrisForJeff on 11/11/2014 - 18:31

  the real question is why would you need 2 headsets

  • 

    Azn310 on 11/11/2014 - 22:37

    Not everyone are born with 2 ears like you man

• 

  vegemite2008 on 11/11/2014 - 19:57

  +1

  You seem to have a lot of time on your hands….

  What's the point of forcing someone to sell you one more item.

  Of course, if you have both time and money, then contact a lawyer…

• 

  mthucs on 11/11/2014 - 23:57

  +1

  This has become such a tl;dr thread for me.

  It was over a long time ago.

• 

  gimme on 12/11/2014 - 07:30

  Is this place full of 12 yeatolds with not enough homework and too much time on their hands? Australia needs some real problems

  • 

    Wyzard on 12/11/2014 - 11:58

    First world problems.