Posted: 1/2/2003 9:09:55 AM EDT
Need some legal advice:
Purchased an expensive printer on ebay a few weeks ago to do more RKBA shirts & hats for my website. It included a separate network card.
Sent postal money order to seller. He didn't have original box, buthad it packed and sent ups.
Powered it up, didn't work. Tried for a day then finally took it into a repair shop, they said it was totaled, UPS must have dropped it sometime during delivery. Would cost more to fix than to replace.
Now the seller says he will refund the money, but he wants the network card back. He says he's due it back because he's sending returning the money, but he's also getting reimbursed by UPS. I spent numerous hours working on this, lost probably hundreds if not thousands of dollars in sales.
Here's my reasoning: The transaction is complete. He has my money, I have his printer. If your car is totaled, the dealer doesn't get the car back. Any collection of the merchandise is up to the insurer, not the seller.
I'm not a lawyer, but common sense says to send it back for the refund the guy offered. He may be getting reimbursed by UPS, but so what? You get your money back, he gets the value of the printer from UPS insted of you. He has a pile of junk just like the Insurance company would in your car dealer example. Just my opinion, but if you yank the seller after he offered to refund your money, then if you get screwed in the end its your own fault. You could have just as easily ordered a new printer & it be broken and your loss in time would be the same and the remedy offered would be similar. Good luck.
Not a lawyer. Don't play one on T.V. I do keep a fair number employed, though.
1. If the seller refunds your money, you are made "whole" as far as your transaction with him. You ethically and legally owe him the network card.
2. The seller has a claim with UPS. UPS will negotiate a settlement with him, and has the right to include any salvage value in the settlement. The value of the network card (as well as any salvage) is between the seller and UPS.
3. You may have a claim against UPS for your lost revenue. You can puruse them directly if you wish and are able to provide documentation to support your claim.
Insurance law is not my bailiwick, even though I am a licensed insurance agent for a title company, but let me give you my opinion.
If the Seller paid for the insurance (via the fees that UPS collected for the shipment) then he and only he has a claim for the insurance proceeds.
If you paid for the insurance (via the fees for UPS...) then you may have a claim for the insurance proceeds.
It's likely that the Seller paid for the fee for shipment and, therefore, is entitled to any proceeds from the insurance payment for the loss.
If the transaction is set aside for failure of the Seller to provide you the product, through no fault of his own, then it's likely the entire transaction should be set aside, including the return of any product that you received from the Seller (like the network card).
To determine whether or not you have a claim for lost sales, etc., from the Seller's failure to provide the product to you, look at the contract that you have with the Seller.
Is there a clause that dictates what damages are to be covered by the Seller's failure to deliver the product to you? Is there a deadline for sending the product?
If this is just a telephone order, with no associated contract, what are the standards in your industry for delivery of such products?
I see this a lot, too, doing technical support. Someone has a problem with a computer, spends hours futzing with it, pays a consultant lots of money to futz with it, THEN calls us, we get it fixed, and they want compensation for their downtime. So sorry.
You got a defective product, but your only recourse is to get the refund from him, and send everything back. After all, you got it on Ebay, with probably no warranty express or implied.
You want recompensation for lost productivity? Too bad, so sad. You took the risk in getting a peice of equipment you need from Ebay. Even if there were some sort of warranty, it would not cover lost productivity, it only covers the hardware.
Send it back to him and get your money back.
My experience with UPS is extensive,You will have to notify UPS about the damage,and you will have to tell them it was packed properly and the damage was done in shippment.They will give you a claim number which you will have to forward to the sender.UPS will make arrangements to come pick up the item and thay will ship it back to UPS point of origin.The person who sold you the item has the option to now list you as the recipient of the claim payment or he/she can list themselves.Either way it is back in the hands of the person who sold you the item.If UPS pays the claim,they keep the item,they do not give it back to the original sender.Beware of this guy ripping you off,If both you and he did not tell UPS the item was packaged properly,They will not pay.If i were you,I would have UPS pick up the damaged item and get a reciept number,contact your seller and send him a copy and wait for your refund.If you do not get a refund,you now have a legal claim of mail fraud by the seller.
What ETH said about insurance.
Is the seller in the same state? You could sue for lost profit in many states, claiming the contract was for the product delivered to you.
As a practical matter, for the amounts you named I would only do it if you were in the same state, and found a lawyer willing to do it for a percentage.
It would also depend what changes to the UCC your state did.
(yes, for other lawyers I know the internet jurisdiction rules---but not enough is at stake here to justify even researching them, let alone trying to get service)
I am a lawyer--but not yours and am not one in your state---check what I said with a local attorney for real legal advice (the kind you pay for).
Seller is in Texas, I'm not.
I paid for shipping and insurance (and probably overpaid for it, but I was desperate at the time). It shipped UPS (had no real choice), so only the shipper has recourse to collect on insurance, FWIH.
It just irks me because it's completely 180 degrees from what I would do. Say I was selling an expensive item (perhaps a table saw) and included a non-standard part as an incentive (say $200 in saw blades). Buyer pays me for shipping and insurance, I ship it, UPS does their thing and breaks the saw (sorry ups workers here). Buyer sends me an estimate from a factory certified repair center that item was totaled in shipping (I did that).
After already being paid for the saw, I get reimbursed from UPS because I was the shipper and paid them directly. However, before I reimburse the buyer, I say "Send me the saw blades I included free (so I can sell them to someone else or use them) before I send you your money back."
That just seems so scummy to me. I would never consider doing that to someone - I've already been paid for everything, and insurance is cutting me a check for the total.
Anyway,I'm tired of dealing with all the BS and am just going to agree to what he wants in order to get my money back. Then I'll embrace the idea that the grand nature of the universe will someday reward him for his behavior.