Legal advice needed about Ebay, please help me, I dont know where we stand (long sorry)

[purpleflower]

I brought a pair of shoes from a shop on ebay recommended to me by my SIL. I ignored the auction, went to buy it now and paid immediately by paypal. All good so far!

The shoes arrive on Tuesday as promised but they are the wrong colour. I emailed them explaining that there is a problem and I need the shoes for Sunday for my son's christening. To which they replied that they do not have the correct item in stock and offered me a size smaller.

Now as you can imagine I was not very happy with this coming from a shop that prides itself on excellent customer service. My DP replied that they have caused us a great deal of inconvenience so we would like the full price of the shoes refunded along with the postage both ways. He also said that the feedback we would leave would be: NEGATIVE - Quick delivery, Quick response, SELLING GOODS THEY HAVEN'T GOT!

We very quickly received an email from them. Will copy and paste;

Hi

I am surprised by your tone. It is very annoying when the wrong item is dispatched.

We have a new consignment due next week, but we were under the impression you required sooner so we were trying to help you.

If you intend to leave a negative, please read eBay rules and be very clear about defamatory under English law.

We can supply the goods, under Distance Selling Regulations 1998 we have 28 days to supply an item ordered. It would have been better to be civil. You seem to not understand English law.

However we will cease any communication if a negative is left as per eBay rules and a Claim of Defamation Statutory Declaration will be served on you. We claim £500 a day plus legal costs that a negative is left.

Regards

***

The last thing that really annoyed us was the fact that he mentioned English Law. This may sound petty and I may be reading too much into it but my DP wrote the email and signed it with his obviously foreign name.....

If you have got to the end of this then thank you. I do apologise for my spelling and grammar but it is very late.

Any ideas, where do we stand and where should we go from here?

Post a link to the product so we can see what it says. The vendors seem not to know English law any better than they think you know it. Negative comments are not defamatory. They are defamatory if they are untrue. So long as your comment is true, they haven't a leg to stand on. But I don't know whether any 28 day shipping rule is in operation. And why were they "under the impression you required sooner"? Did you say anything about a time limit on your order?

BTW, there's nothing wrong with your grammar or spelling, but the vendor's email comes from someone whose command of grammar is a bit shaky. They're trying to sound more knowledgeable than they actually are.

Thank you for your reply, I did state in my emails to them that I do need the shoes by Saturday, so that is what they are refering to.

My DP has just spent ages researching on the net and has come up with a few points which we have now emailed back to them;

Dear Mr ,

I was trying to be as kind as I possibly could be when considering the circumstances. I didn?t attend my letter in any shape or form to be frightening and as a response I would have expected another appologie and a refund of the product.

You have advertised an item on auction which you did not have in your possession. I would consider this fraud, but that ?as it seems ? is only me. I would like to bring your own item description into your attention. I have highlighted the sentence that is to be noted:

??

Dispatch Details

All items are despatched in robust packaging as soon as possible after cleared payment has been received, excluMega Summer Sale ~ Many Items Over 50% Off!! Please remember when you buy from us you are not comprising on quality - Just saving money!! ding Sunday. Usually we ship next business day after receiving payment. However during busy times we will ship 2/3 days after cleared payment is received. We email each customer when their order leaves our warehouse.

??

Distance Selling Regulations 2000 ? Regulation 7 à OFT press release12th September 2006 - A guide for businesses on distance selling -section 3.1 (ii)

The above point is what I would also bring to your attention, You say you will ship the goods in 2-3 days. So no, you have not got 28 days to dispatch the item, as you stated otherwise. That is what made us purchase your product.

You have sent a confirmation email that the item purchased has been dispatched, clearly that was intended to be dispatched as it was stated in your description. Unfortunately wrong item was sent out. I don?t know the reason why. What I do know is that you have made it clear, that at the time of purchase you didn?t have stock available.

All in all, You have sent the wrong item. ? Fact

By the law I have 7 days to return the Product if I am not satisfied with it. ? Fact

Your email doesn?t compile to the latest Company Stationary law ? fact

Item will be returned ? fact

Perhaps I may reword my feedback, So I don?t get accused of being speculative.

Assuming things & Judging people by their email is not advisable.

Yours Sincerely,

Now I am just hoping that the information he found is true and up to date!

It's not even an expensive pair of shoes but it still really pissed me off because now I've got to run around town at the last minute trying to find a new pair by Sunday along with sorting everything else out.

We are now waiting to see what they have to say!

Message withdrawn

They sent us an email. All it said was thank you for your email, regards!

Think we scared him more

Bump to laugh at a stupid seller

First, don't leave any negative feedback until you've got the refund. It's obvious that you are entitled to a full refund, since the goods dispatched were not as advertised. And if they try to stiff you, that fact should go into the feedback. The threat of your negative comments would be an inducement to them to be prompt with a refund. So hold back on the feedback until you get the money.

I haven't used ebay for a couple of years but isn't there an adjudication department where complaints like this are dealt with? If so, you should contact them about it.

As I said before, as long as your facts are correct, charges of defamation are nonsense.

Are you not being a bit aggressive? You received the wrong colour shoes, which you told them about and they mistakenly offered you a size smaller which makes me think that they misread your first email. So your second email to them threatened to send negative feedback and accused them of selling stock they didn't have.

I would say that their responses so far have been quite measured and polite and you are reading too much into the English Law quote.

You can send back if they are wrong within 7 days and you are entitled to a full refund. How you go about this is your business, but I do think you have reacted far too harshly and are now asking Mumsnetters to laugh at them - what for?

threatening with feedback is against ebay rules - be careful

you have every right to leave negative FB if you are unsatisfied with the transaction. Ebays help pages will give you guidance on FB). Your additional requirements formed part of the contract. They didnt send you the right shoes. They broke the contract.

When it comes to 'English law', this is 'English law':.......

Sale of Goods Act 1979 (as amended): states the goods must be:

'of satisfactory quality'
'fit for their purpose'
'as described'

These aren't 'as described'. (you dont mention their quality or wether they are fit for the puropse?).

Any more BS from seller and contact consumer direct. They are part of the DTI, and are your gateway to Trading Standards(if need be). They are really very good!

Consumer Direct: 0845 4040506

any chance it was a genuine mistake perhaps ? Mislabelled box or if a company maybe based upon computerised stock records which have got skewed, it happens. Communication all sounds a bit heavyhanded tbh, politely request a refund and shop elsewhere.

any chance you can give a link to seller, i want to know who to put on my ebay ignore list. i WOULD NOT WANT TO BUY FROM THOSE PEOPLE!

I would'nt want to buy from them either.... and I lurve shoes

As a seller I know how easy it is to make an honest and genuine mistake. It happens. Unfortunately the seller has been way over the top in his reply to your initial complaint - however he perceived your email.

There was absolutelty no need for anything other than an apology, and refund. Fair enough to mention that he had an alternative size, or could provide them in x amount of days - but if this was not suitable for you you would be given a full refund upon return.

Your email back was well written and obviously reasearched - but perhaps stooping down to his level a bit - sure it made you feel better though ;)

If it was me I would file with paypal for an item 'significantly not as described'. I take it the shoes are a different colour (ie blue rather than red) as opposed to a different shade (ie champagne rather than ivory) as you could struggle with a SNAD if they are not obviously different.

I would then leave a negative FB. Be very factual 'sent wrong colour shoes, refused to refund, taken up with paypal'. Yes feedback can be defamation but only if you write 'This guy is a w*ker he sells c*p do not touch him with a barge pole'. So long as it is factual, and not personal and insulting you have nothing to worry about. Also expect a nice neg in return.

Paypal will look at what you have said, ask him what he says (if he disputes it, he may just agree to a refund), and decide if you are due a refund. So long as the colour difference is obvious there is no reason for them not to find in your favour. You will then have to return the item to him. This needs to be by recorded delivery, and will be at your expense.

Am I missing something here?

Buyer buys shoes, Seller dispatches shoes very quickly but seller makes a mistake and dispatches the wrong ones.
Upon hearing of the mistake and the urgency for the shoes the seller offers to help the only way they can, and also explains when the correct shoes will be available.
Buyer then gets angry and threatens negative feedback.
Buyer is surprised by the quite acceptable and factual response to this threat and proceeds to send another unpleasant and threatening email.
Seller responds correctly and professionally by acknowledging receipt of email but refrains from furthering an argument.

Now no one wants to buy from the seller?!

i think you are being way ott, sounds like they made a mistake and were willing to help. i would expect refund of postage both ways but i would have asked nicely first. i dont see how they have caused you a great deal of inconvenience, a bit maybe but its hardly the end of the world. their response was arsey but not without reason, if they refunded postage and shoes i would have left positive feedback for solving problem

It's true that the buyer's first email was a bit premature, since the seller could have made a mistake. I personally wouldn't have taken that tone until I'd established the facts. However, it makes no difference to the legal position. The seller didn't make a mistake. They shipped the wrong goods because they didn't have the right ones. They were advertising goods they didn't have.

but how does one know they didn't have the right ones in stock? They may have had and simply made a mistake in shipping the wrong ones. By the time they heard of their error, they, as they stated, didn't have them in stock (maybe they sold the stock?)
Who knows? but how can they be accused of advertising goods they don't have when there is no proof to back this up?

how can so much fuss and legal threats occur over the wrong shoes? Even Gromit didn't make this much fuss and he got the wrong trousers!

I'm taking the word of the vendor, who said: "We have a new consignment due next week, but we were under the impression you required sooner so we were trying to help you." In other words, they didn't have the item at the time of the order. Seems clear enough to me.

The shoes were silver instead of white and there was no mix up on the box, it said silver.

I accept that we may have been too harsh saying about the feedback but like bonaventura we took the vendors words to mean that they weren't in stock now as they didn't have them when I brought them. I personally don't think this is on, so therefore got very angry.

The email we sent was this,

Hi,

The Shoes are in a silver box not a white one. A 7UK is not big enough so I will be putting the shoes in the post back to you on monday. This is causing a great deal of inconvenience to us. We want postage both ways and the shoes refunded to us. You shouldn't be selling what you haven't got.

We haven't left any feedback yet and will be taking the matter to paypal for a refund.

I'm sorry if people think I've been too harsh but I have purposly not linked to or named the seller. This was just the last thing I needed this week. I now have to spend tomorrow searching the shops when I have everything else to sort out for sunday.

Bonaventura - the line "We have a new consignment due next week, but we were under the impression you required sooner so we were trying to help you." was in response to communication after the receipt of the wrong shoes. This means that once the error had been realised they didn't have the correct shoes in stock, but it does not mean they didn't have the correct shoes in stock at the time of the listing.

They could even have made a mistake and sent the white ones you ordered to someone else who perhaps had ordered silver, but would n't be able to rectify it in time for you even so. I'm sure your refund could have been sorted out more amicably from the outset. The email you've quoted sounds fine but in op you said he'd specifically threatened Negative feedback which does sound overly hasty. Don't link - that could be seen as unnecessarily antagonistic.

I think the seller has escalated this by first delivering the wrong item and then getting agressive and telling lies when this was pointed out to them. They used the (wrong) claims about the Distance Selling Regulations and Defamation in order to intimidate purpleflower's dh and were insulting as well ('you do not seem to understand English law').

The offer to send shoes of a different size is ridiculous and not a real attempt to make amends.

Purpleflower, you are entitled to a full, immediate refund under the Sale of Goods Act ('not as described'). With no quibbles! No idea about ebay feedback rules but they must not contravene your rights under the Sale of Goods Act - your legal rights outweigh any ebay rules and regulations.

The Distance Selling Regulations specifically do not apply to internet auctions such as ebay. However, not sure whether 'buy it now' means it wasn't an auction so the exemption is void.

If you have any hassle, contact your local Trading Standards dept. at your council.

HTH

*PS these rights only apply if you buy from a business, btw, if you buy from a private seller over ebay you have fewer options so beware.

i dont think ur being harsh at all..........fact of the matter is they're trying to fob u off with smething u dont want, they have advertised something they havent got and if they had been decent enuff to just refund in the first place u wouldnt have had to be a bitch wud u.good for u for sticking to ur guns

Agree with LIZS.

And I disagree about 'don't link' - you are perfectly entitled to tell people which business you dealt with, there's no need to keep it a secret. Defamation doesn't mean you aren't allowed to tell people where you shop, fgs!