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ebsternator

BidorBuy Policy on risk of goods

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ebsternator    10
ebsternator

Hi everyone,

 

This issue has been brought up a few times on the forums to no avail (that I am aware of).

 

The issue being that the CPA states that a SELLER is responsible for the risk of goods until such time it is received by the buyer.

 

I have raised this issue in a different thread many months ago however an adequate response from the BoB higher-ups was not received, http://forum.bidorbuy.co.za/buying-bidorbuy/18684-cpa-risk-parcels.html.

 

Could the BoB team kindly clarify BoB's policy on this matter. The reason being that if a seller is responsible for the goods then the requirement for payment of insurance on postage should fall on the seller and not the buyer, and even if insurance isn't taken out, the seller has an obligation to provide a refund or replacement.

 

Thanks !

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jogesel    10
jogesel

I don't see how BOB can have a policy to cover this issue. The contract of sale between the seller and buyer has got nothing at all to do with BOB.The issue of risk is one between the seller and buyer and BOB cannot tell them how to contract as regards risk. Just as BOB cannot tell sellers what prices to set. It's up to the parties to the contract (buyer and seller) to decide on whom the risk falls and what should happen if the goods are damaged or lost. They can decide anything they want concerning the risk because they have freedom of contract, unless the issue is specifically covered by common law or legislation such as the CPA.

 

In terms of the common law the risk is on the seller once payment has been made and the contract has been concluded and until buyer takes delivery. The seller will only be liable for loss or damage if he acts negligently in caring for the goods or deliberately causes them to be damaged or lost.

 

If the CPA does state that the seller is responsible for the goods until receipt of goods by the buyer and the buyer does not receive goods or receives damaged goods then I assume that the buyer can always sue the seller for the return of his money or replacement goods.

 

I am unaware of the specific section in the CPA to which you refer as I have not read the CPA. I have however seen many sellers on BOB indicate that they are not responsible for loss or damage once they post the goods. This seems to be contrary to the CPA and therefore unlawfull.

 

Maybe when sellers try to avoid liability for risk buyers can point out the relevant sections of the CPA and insist that sellers comply with them.

 

Just as sellers can include certain terms in contracts so to can buyers. You as a buyer can tell the seller what you want done regarding the risk. If the seller does not agree go and buy from another seller who is more compliant.

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ebsternator    10
ebsternator

BoB is the facilitator of the sale. BoB has a set of rules and regulations by which the seller abides in order to trade on the website.

 

For example BoB has a restriction on Nazi memorabilia being sold, and they have a regulated list of dropshippers. Another example is when BoB actively investigates sellers who sell counterfeit goods, who take part in ghost bidding and the like. In this way BoB directly involves themselves with the process of trade on the website.

 

 

As such BoB have a set of policies by which Sellers are restricted. My question now seeks to clarify whether the practice of Sellers saying that "buyer assumes responsibility for damage or loss" is contradictory to the CPA. If so, BoB as a website that aims to facilitate safe and legal transactions needs to inform us whether sellers are indeed acting unlawfully and therefore BoB needs to take a stance on the matter and ensure that lawful trade is taking place.

 

The particular provision in the CPA is as follows:

18.(1) Despite any statement or notice to the contrary, a consumer is not responsible

for any loss or damage to any goods displayed by a supplier, unless the loss or damage

results from action by the consumer amounting to gross negligence or recklessness,

malicious behaviour or criminal conduct.

 

By virtue of this BoB should either have a policy whereby the seller pays for insurance or whereby it is not permitted to state in ads that the buyer is responsible for loss or damage of the parcel. This is because, as stated before, BoB is the facilitator of sales, and they are basically the "watchdog". Online sites are only as good as their reputation for safe sales, and as such auction sites like BoB ensure that sellers and buyers are adequately protected within the scope of existing law.

 

In essence BoB gives a set of rules by which the process of advertisement, auction and sale are restricted to by obedience. Therefore BoB can say that due to section blah blah blah of the CPA sellers cannot pass liability for loss or damage on to buyers.

Edited by ebsternator

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jogesel    10
jogesel

I understand your argument. However BOB can only set general rules and regulations governing conduct of sellers and buyers on the site which have nothing to do with the actual contract between buyer and seller. If BOB can set rules as you state what is next? A rule that books may not be sold for more than R 20, that only gold coins may be sold or only pens using black ink may be sold, or that all shipping costs may not amount to more than R30?

 

A contract is a personal thing between buyer and seller and nobody may make rules or set limitations on how the parties may contract. Only the law may do that.

 

Yes BOB is the facilitator and they have certain duties and responsibilities but I don't think their responsibility extends as far as you would want.

 

What if I have an office and I act as a facilitator and take people to buy cars from a car company. The company pays me a referral fee. Can I tell the car company what price to charge customers for their vehicles or what they must do regarding delivery?

 

It's up to the buyer to tell the seller what he will accept and what he will not. It's not the responsibility of BOB.

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ebsternator    10
ebsternator

Well not quite, BoB do involve themselves in investigating exorbitant shipping charges. They would also not allow a seller to drop ship. That means they directly involve themselves in the contract of sale even if it is not between them.

 

Furthermore BoB will contest unfair T&C's of sale should they be prejudicial to the buyer, and they handle the money transfer until ratings are complete. They not only set out the norms and standards for the contract of sale but they police items for sale, conditions surrounding the auctions and so on.

 

You see BoB ensures that the parties conclude a legal contract of sale. As such by compelling sellers to adopt insurance policies in line with CPA they are further fulfilling their duties to the users of this site. If BoB were "merely" a platform they would not take commission on sales.

 

The conduct of the buyer and seller as you state can be extended to the habit of stating that the risk falls on the buyer when in fact it is not legal or perhaps ethical under the scope of the CPA to do so.

 

Anyways could BoB admin kindly respond to my original post !

Edited by ebsternator

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qball    11
qball

The CPA is in force, all sellers must adhere to this. We do not have a policy on this, it is the seller's responsibility to ensure they are compliant, not bidorbuy's. We are not a facilitator, agent, representative of the seller or buyer.

 

BOB does NOT enforce sales nor are we a party to the sales contract.

 

We investigate excessive shipping (even though we are not really obligated or responsible for doing so), as this causes harm to both the website and it's users. We generally do not get involved in shipping issues or legal matters. This is more of a customer service issue from our side, rather than a contractual one.

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lilythepink    10
lilythepink

As a long-time user on Bob, I think the existing terms and conditions are fair to both sellers and buyers.

 

What amazes me is that few folk report problems when they see them when it's so easy to do so, right on the listing page.

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ebsternator    10
ebsternator

This seems highly unfair as the admins of the website are effectively turning a blind eye to what is in essence sellers making a few rands on insurance off buyers, compounded by the fact that built in to the website are controls that allow for the factoring in of insurance charges to shipping charges which basically makes sellers think that it's okay to contravene the CPA and dupe unknowing buyers into assuming responsibility for the items once shipped.

 

Could BoB at least take this matter up as one of discussion and consider at least informing sellers that the practice of stating that the risk is passed to the buyer is not lawful.

 

Just as BoB takes up issues when sellers are dishonest or involved in misrepresentation in listings, I am sure that they can take this issue up too.

 

After all if BoB won't ensure that it's sellers are not adherent to current laws then why should buyers feel safe.

 

A final question, should a package be broken in transit, and a buyer has NOT taken insurance on it, and the SELLER refuses a refund or replacement, what will BoB's actions be to resolve the issue?

 

EDIT

 

In fact according to BoB

 

4.4 If you do so, you agree and warrant to the Buyer of those goods and services and separately to us that:

 

4.4.1 your information:

 

4.4.1.1 is accurate and not false, misleading, deceptive or fraudulent;

 

Surely charging for insurance or stating that the buyer is liable for theft, loss or damage counts as being fraudulent or deceptive. Given the sheer scale of sellers doing this on BoB surely this warrants some action?

Edited by ebsternator

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qball    11
qball
This seems highly unfair as the admins of the website are effectively turning a blind eye to what is in essence sellers making a few rands on insurance off buyers, compounded by the fact that built in to the website are controls that allow for the factoring in of insurance charges to shipping charges which basically makes sellers think that it's okay to contravene the CPA and dupe unknowing buyers into assuming responsibility for the items once shipped.

 

Could BoB at least take this matter up as one of discussion and consider at least informing sellers that the practice of stating that the risk is passed to the buyer is not lawful.

 

Just as BoB takes up issues when sellers are dishonest or involved in misrepresentation in listings, I am sure that they can take this issue up too.

 

After all if BoB won't ensure that it's sellers are not adherent to current laws then why should buyers feel safe.

 

A final question, should a package be broken in transit, and a buyer has NOT taken insurance on it, and the SELLER refuses a refund or replacement, what will BoB's actions be to resolve the issue?

 

EDIT

 

In fact according to BoB

 

4.4 If you do so, you agree and warrant to the Buyer of those goods and services and separately to us that:

 

4.4.1 your information:

 

4.4.1.1 is accurate and not false, misleading, deceptive or fraudulent;

 

Surely charging for insurance or stating that the buyer is liable for theft, loss or damage counts as being fraudulent or deceptive. Given the sheer scale of sellers doing this on BoB surely this warrants some action?

 

I disagree. We cannot enforce all the laws of the country, that is not our responsibility. Rather it is the sellers' responsibility. Yes, we can have a word with the seller, however, we are not legal experts nor lawyers, so we cannot be dishing out legal advice on such matters.

 

We also cannot dictate to a seller what their terms and conditions must be. As the sale contract is between the buyer and seller, we cannot interfere in that contract from a legal perspective. It is up to the buyer to enforce their legal rights.

 

I am also not convinced that the terms itself is illegal or fraudulent as you claim. That would be for a court to decide or the NCC to decide.

 

We merely add the actual insurance charge on to the shipping amount, we do not provide any terms or conditions around this, as long as it is what the rate actually is, as charged by the PO or similar shipping service. This has nothing to do with what sellers claim or state on their terms.

 

Insurance only covers loss, not breakage. We would not necessarily intervene nor take action against the seller, we may try and mediate between the two parties, but ultimately it would be up to buyer and seller to resolve. These are issues which we cannot and most often will not get involved in, as we are not party to the sales contract, nor are we the contracting parties.

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