Archived posting to the Leica Users Group, 2001/03/10
[Author Prev] [Author Next] [Thread Prev] [Thread Next] [Author Index] [Topic Index] [Home] [Search]I don't agree that with LUG Standard Answer #4, which is to just shoot more film. Ebay has the law on auctions (in several, if not most states) absolutely backwards. An auction is an invitation for OFFERs. This does not require you to have an item. The bidder by bidding gives an OFFER. The seller can then ACCEPT or not. And a real auction with reserve means that the seller does not have to accept if he does not want to. Ebay's view that you enter into a binding contract to sell to anyone who bids on your item at your reserve or higher is flat wrong. You might also be surprised to learn that at least in this state, putting out a list of equipment on the internet or other mass-media is an invitation for OFFERs, not an offer in itself. This is true, as far as I know, in every state (with the possible exception of Louisiana). That is why your emailing or calling a store in response does not amount to fraud, does not amount to breach of contract, or anything. It may be false advertising, but that's largely a statutory remedy. Dante Austin Franklin wrote: > > Austin, > > > > I hope this is what you've asked me to provide: > > > > I do not believe that posting an item with reserve on eBay which one does > > not own or does not have power to transfer title is, by itself, a > > violation > > of the law. If, however, someone met the reserve before the item was > > withdrawn, that might well be a different story. > > No, you can stop the auction at any time, for any reason, even if reserve is > met. The auction can be stopped, with no legal obligation to any parties, > until the auction if final, ie, stopped or completed, with reserve met, with > a winning bidder. In order to stop an auction in progress, with no reserve > or when reserve was met, the seller must cancel all bids on that auction. > > > It is eBay's > > position that > > a bid which meets or exceeds a reserve price constitutes a > > binding contract. > > Again, eBay does not make the law, so whether this constitutes a legal > contract is another story. eBay, as I stated above, does allow the seller, > FOR ANY REASON, to cancel the auction...and/or any bids with no obligation. > > > Entering into a binding contract to transfer title to something you do not > > own or have the power to transfer is fraudulent. > > But the contract is not a contract until the auction is over, and there is a > winning bidder. > > > The problem here is that > > the minute a bid is placed which meets the reserve, a binding contract has > > been formed (at least according to eBay). > > Nope. Not until the auction is over, and there is a winning bidder. > Bidders can cancel their bids too, with no obligation. > > > If the seller knows he does not > > have the power to pass title, he has acted fraudulently. > > Only if the auction went to closure, which, in this case, it did not. > > > Listing something for which you do not have power to transfer title brings > > into play several sections of eBay's User Agreement. > > > > Section 6.1: "Your information (or any items listed therein): (a) > > shall not > > be false, inaccurate or misleading . . . (c) shall not infringe any third > > party's . . . proprietary rights . . . (d) shall not violate any law, > > statute, ordinance or regulation (including . . . false > > advertising)." [for > > the sake of brevity here I'm only including the relevant portions] > > I do not see anything WRT this issue violated here. The listing did not > contain any false, inaccurate or misleading...didn't infringe...and didn't > violate any laws etc. > > > Section 14: "You shall comply with all applicable laws, statutes, > > ordinances > > and regulation regarding your use of our service and your bidding on, > > listing, purchase, solicitation of offers to purchase, and sales > > of items." > > Yep, and no laws were broken. I find no clear violation of the Cal Civil > Code section 1572. Any arguments would be weak, at best. > > > Look at "1" done for the purpose of inducing someone to > > enter into > > a contract. Isn't that what happens when you post something on eBay which > > you have no power to sell? > > If you have reasonable belief that you DO have power to sell it, then there > is no violation. You keep avoiding the word "reasonable". > > > Of course it doesn't violate the statute until > > the contract is actually formed, i.e., the winning bid is > > received. Then it > > is the winning bidder who has been damaged - or perhaps the rightful owner > > of the item posted.] > > And there was NO winning bidder, so now that you admit this, why are you > arguing the point? > > > The legalities of eBay > > listings are much more complicated than they might seem at first. > > I disagree. Law is complicated only if people make it complicated, and > there are a large group of people in this country that like it complicated > since they profit from its complication. > > > If there is > > a misrepresentation of a material fact made in order to induce someone to > > enter into a contract, that seems to be covered by the above Cal > > Civil Code. > > And I say there was no misrepresentation of any material fact. The seller > had reasonable belief that the lense was available to him, and again, > someone had to have injury, in this case, for there to be a case...also you > need a Plaintiff, and there is none. > > > >>in all fraud cases there has to be injury<< > > > > Austin, are you sure of this? If someone fraudulently writes > > checks on your > > account but gets caught before any money is actually paid would you agree > > that there is no case? > > Certainly, IMO, in the case we are discussing. Your situation above is > different...first, it is theft (of the check), then there is forgery (the > signature). There is injury, in the fact that the check as been, in fact, > stolen.