Atlantic on E-Bay in Morehead

[Bertramp]

I think that the verbiage when you join EBAY holds you to a contract. I think that in many cases folks won't litigate over a $15 T-shirt. Offer, acceptance & consideration.

 

[foleyjt]

Howard:

I sent you a PM, but since that message I have reviewed the thread and the ebay item. You win. A very similar situation to the one I am involved in currently. Let me know how I can help.

JTF

 

[Brian Degulis]

I think that the verbiage when you join EBAY holds you to a contract. I think that in many cases folks won't litigate over a $15 T-shirt. Offer, acceptance & consideration.

I think so also but that's a contract with Ebay not with the seller so I would think that Ebay would have to act on behalf of the seller or buyer. I don't think as a buyer or seller Ebay guaranties you that the seller or buyer your dealing with will act honerably. The problem I see is that no contract exist's between buyer and seller only between buyer or seller and Ebay. And what would be Ebays incentive to get involved I haven't looked but I bet somewhere in the Ebay contract you agree to hold them harmless if issues arise between the buyer and seller. Again I don't know it just seams very diffrent and less protected than a normall buyer seller relationship?

Brian

 

[foleyjt]

The contract is between the buyer and seller. By listing on ebay the seller agrees to either sell his item with or without a reserve. By agreeing to sell without a reserve the seller agrees that top bid wins regardless of the proce. Ebay is NOT a party to the sale, and ebay expressly states that it is NOT an auction site or an auction house. Any action against ebay is a loser. Ebay charges the seller for using its site, and the selling charges are higher for reserve auctions than no reserve auctions. Ebay will not offer any help in a situation such as this but its policy is clear that a no reserve auction is just that.

 

[Sparky1]

Here we go again.

 

[Brian Degulis]

The contract is between the buyer and seller. By listing on ebay the seller agrees to either sell his item with or without a reserve. By agreeing to sell without a reserve the seller agrees that top bid wins regardless of the proce. Ebay is NOT a party to the sale, and ebay expressly states that it is NOT an auction site or an auction house. Any action against ebay is a loser. Ebay charges the seller for using its site, and the selling charges are higher for reserve auctions than no reserve auctions. Ebay will not offer any help in a situation such as this but its policy is clear that a no reserve auction is just that.

How can you have a contract between a buyer and seller when neither knows who the other is and neither has an agreement signed by the other? There is a principle of contract law that states "you cannot bind a third party to your agreement" I would seem to me that because the only written agreement anyone here agreed to was with Ebay no contract exists between buyer and seller. In order to persue a claim against someone you have to have "standing" in other words the legal right to go after them. The guy listing the boat didn't make any agreement with the buyer he made an agreement with Ebay and that's the problem I see. Again no expert here and no experience with Ebay just my thoughts. Maybe one of our attorney/members can chime in with some expertise?

Brian

 

[Sparky1]

From eBay:

"Auction-style listings run for 1, 3, 5, 7, or 10 days. During this time, eBay members can submit bids or purchase the item using Buy It Now (when available).

End time tells when the listing will end. When at least one bid has been placed, Starting bid becomes Current Bid. This display always shows the highest bid at the moment. You must outbid this amount. To bid, enter an amount into Your Maximum bid and click on Place Bid.

You can also watch an item in My eBay if you want to wait before bidding.

Remember: Place a bid only if you really intend to buy the item. Once you have placed a bid, it is a binding contract."

No doubt this is geared toward the buyer making good on a commitment to purchase, but the same would have to apply to a seller.

 

[Brian Degulis]

A binding contract with who?

I have no doubt that ebay has lots of verbage stating that buyer and seller have to follow thru but is it enforcable?

Think about how a typical contract to buy or sell a boat is written. There's a deposit. There's a time and place of delivery a right to inspect and survey and agreement the boat will be free of liens at time of delivery. The current owner agrees to be responsible for the boat untill closing there's a default clause allowing the seller to retain the deposit if the buyer walks for no reason and on and on.

With an Ebay deal non of this exists.

What stops a buyer or seller from simply saying I didn't do that. How would you go about proving that he actually bid or listed and it wasn't just someone who got a hold of his log on and pass word and did it without his knowledge.

It just seems to me that this anonymous no signature no deposit no written contract way of doing business would be almost impossible to enforce?

Brian

 

[SKYCHENEY]

We can debate this issue of whether you can enforce this type of sale as a contract forever. The real answer will come in the form of case law. Has this type of sale been litigated before? I'm sure it has. So, what was the result? Do we have any attorneys or paralegals that could look into this or do we have to wait for foleyjt to go to court?

 

[Sparky1]

Brain, it's fairly simple for a buyer to get out of a "contract" through an eBay purchase which involves purchasing sight unseen. It's easy enough for a buyer to find problems which weren't mentioned by the seller and back out over improper representation. That being said, I'm sure it is extremely unusual for a seller to back out of a deal he himself put on the table.

It is virtually impossible for a buyer's information to be used without their knowledge where a bid is concerned, but it is quite impossible for a seller's information to be used to post an item for sale that is not his own. In Foley's case, "Material Girls" had been at auction on eBay several times with the reserve not being met. On that last round, there was no reserve, and Foley had the high bid.

No doubt eBay's credibility is on the line here even though they are not directly involved. What would be the point in anybody buying or selling on eBay if nobody had to follow through with their commitment to buy or sell? The outcome of these two deals will be very interesting to say the least.

 

[Brian Degulis]

We can debate this issue of whether you can enforce this type of sale as a contract forever. The real answer will come in the form of case law. Has this type of sale been litigated before? I'm sure it has. So, what was the result? Do we have any attorneys or paralegals that could look into this or do we have to wait for foleyjt to go to court?

There you go again Sky Why do want wreck a perfectly good dicussion with facts? I mean geez Randy just got his popcorn out.

Brian

 

[foleyjt]

Brian, in response to your comments about contract law and ebay auctions, I suppose to some extent I may be a test case, but let me fill you in on a few of the unique facts with the Material Girl situation. The auction that I won and that is the subject of the suit ended December 04, 2008. I had flown out to Boston in July to see the boat and meet Yale. We had corresponded following that trip. When Yale listed the boat initially through his Agent, Yacht Management Group, Yale personally called me on my cell phone to let me know the boat was on ebay, additionally he emailed several times to also let me know of the "auction". At the time of the call I was the winning bidder in a "Reserve" auction that ended with me winning however not meeting the reserve. The boat was listed again as a "no reserve" auction, however cancelled w/i 24 hours. The next day it was listed again as a "Reserve" auction which again ended without the boat meeting the reserve. It was immediately relisted within hours and this time was a "No Reserve" auction. I immediately place a "proxy" bid that placed me as the high bidder from beginning to end of the auction. During the period my bid was the winning bid I had email correspondence with the Broker, Yale's Agent, who never informed me of any "new terms" and never advised that my winning bid would not be honored. At the close of the auction, I promptly paid the requested $2,000.00 deposit via paypal as required, substantially completing my obligations as set forth in the description. The deposit was to the Broker and he returned the money almost immediately, with a note that I did not win the auction. Ebay however acknowledged me as the winner.

So the buyer and the seller and the seller's Agent knew who the parties to the transaction were. The provisions of the agreement were set forth in the body of the description and I contend that I followed them to the letter of the law. I was invited to bid by the owner, I corresponded with the Seller and the Seller's Agent while the auction was active, and while I was the winning bidder of a "no reserve" auction. At the close of the "no reserve" auction I won. Seller and his Agent knew their respective way around ebay, having listed the boat previously in "reserve" auctions and on one other occasion a "No Reserve" auction that they promptly cancelled, as is their right under Ebay policy, so in this case ignorance is not a defense, if it ever actually is.

We will see how it plays out. There appears to be a new twist with the Material Girl case, as there is some evidence that the boat has been "sold" since the auction ended and since the lawsuit was filed. Where that takes us will be interesting.

 

[Brian Degulis]

You make a good argument and I wish you luck. Are you using an attorney or are you an attorney?


Brian

 

[Sparky1]

Feel free to have some Brian. This could be good.

 

[foleyjt]

Brian, Did you ever hear the old saying that goes: When an attorney represents himself he has a fool for a client? Well I am living proof that that is indeed a true statement. But not only would it most likely be cost prohibitive to "hire" an attorney to handle this, it would take all the fun out of it. As I have said if nothing else, this should be an interesting case, and maybe it will make some good law.

 

[Sparky1]

I've heard that saying.

 

[Brian Degulis]

Yes it will be interesting please keep us posted. Do my thoughts on this have any merit at all?

Brian

 

[foleyjt]

Brian: From the perspective of a "Devil's Advocate" your comments have merit, but Ebay has positioned itself into the mainstream by its current volume, and it is clear in its contention that by participating in an ebay auction both buyer and seller are entering into a legally binding contract, with each other and not necessarily with ebay. Ebay does not wish to place itself as a "party" to any transaction, and in fact ebay is clear that it is not an "auction" site, merely the "host" of auctions between private parties. There is quite a bit of case law where ebay has defended itself against States that attempt to get Ebay to conform to regulations that deal with auction houses or auctioneers. Ultimately its the Uniform Commercial Code that regulates these transactions and section 2382(d) really is the controlling law on reserve vs. no reserve auctions.

The bottom line is if you engage in an ebay transaction either as a seller or a buyer you are legally bound by your actions, however many people just don't want the aggrevation of trying to enforce a sale from the prespective of either the buyer or the seller.

But there are those who are stubborn. And I really need a 55C.

 

[Passages]

WRT to the subsequent sale of Material Girl outside of the eBay auction, was the vessel "arrested" via a lien copied to the USCG Documentation Service?

If so, I would think the subsequent sale is invalid until the lien is satisfied.

Do you have any hard evidence the boat was in fact sold or could it have been a ruse to get you to go away?

You should be able to seach the documentation service to get the latest status of the boat.

 

[Brian Degulis]

Brian, in response to your comments about contract law and ebay auctions, I suppose to some extent I may be a test case, but let me fill you in on a few of the unique facts with the Material Girl situation. The auction that I won and that is the subject of the suit ended December 04, 2008. I had flown out to Boston in July to see the boat and meet Yale. We had corresponded following that trip. When Yale listed the boat initially through his Agent, Yacht Management Group, Yale personally called me on my cell phone to let me know the boat was on ebay, additionally he emailed several times to also let me know of the "auction". At the time of the call I was the winning bidder in a "Reserve" auction that ended with me winning however not meeting the reserve. The boat was listed again as a "no reserve" auction, however cancelled w/i 24 hours. The next day it was listed again as a "Reserve" auction which again ended without the boat meeting the reserve. It was immediately relisted within hours and this time was a "No Reserve" auction. I immediately place a "proxy" bid that placed me as the high bidder from beginning to end of the auction. During the period my bid was the winning bid I had email correspondence with the Broker, Yale's Agent, who never informed me of any "new terms" and never advised that my winning bid would not be honored. At the close of the auction, I promptly paid the requested $2,000.00 deposit via paypal as required, substantially completing my obligations as set forth in the description. The deposit was to the Broker and he returned the money almost immediately, with a note that I did not win the auction. Ebay however acknowledged me as the winner.

So the buyer and the seller and the seller's Agent knew who the parties to the transaction were. The provisions of the agreement were set forth in the body of the description and I contend that I followed them to the letter of the law. I was invited to bid by the owner, I corresponded with the Seller and the Seller's Agent while the auction was active, and while I was the winning bidder of a "no reserve" auction. At the close of the "no reserve" auction I won. Seller and his Agent knew their respective way around ebay, having listed the boat previously in "reserve" auctions and on one other occasion a "No Reserve" auction that they promptly cancelled, as is their right under Ebay policy, so in this case ignorance is not a defense, if it ever actually is.

We will see how it plays out. There appears to be a new twist with the Material Girl case, as there is some evidence that the boat has been "sold" since the auction ended and since the lawsuit was filed. Where that takes us will be interesting.

OK More questions Was the broker or the owner the seller of record on Ebay? You mentioned that the Pay Pal deposit was sent to the broker. So I'm thinking we don't have a situation were the the boat is listed with a broker but the owner is trying to sell it on Ebay without the brokers knowledge. The broker would appear to be involved in the sale. Are you in a state that requires brokers to be licensed? It would seem to me the broker has definitely violated some rules and or laws here. You mention the broker is saying that you were not the high bidder but Ebay is saying you are. What is the brokers argument what reasoning is he using to justify his position that you aren't the high bidder? Who was the high bidder?

If they had a no reserve auction and weren't happy with your high bid I wonder why they didn't just have someone (a friend) bid it up? That would have accomplished the same thing without repercussions from you. It just doesn't make sense that they would allow you to stand as top bidder knowing they aren't going to sell the boat at that price.

When you found out your deposit is not being acepted why didn't you get a temporary restraining order to prevent any sale or transfer of the boat? Based on what your description it seems like you could have gotten one pretty easily. Just getting it and tying the boat up might have been enough to motivate the seller to negotiate with you on a purchase.

Was your high bid grossly below the value of the boat?

Brian