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?

And they've never said they won't refund , as far as I can see.

I do think you were pretty extreme in your initial reaction which clearly escalated. Negative feedback is seen as an absolute last resort on Ebay. And you were making some huge, aggressive claims ('selling goods they do not have') which could have had a serious impact on their business. Why all the threats so early? They only sent you the wrong colour! Even the sainted Johnny Boden has send me the wrong size before now and I didn't immediately threaten to publicly discredit him!
Their response was also extreme, but they might be hanging on to this business by their fingernails and your negative comment could have finished them.
I think maybe you need to calm things down and say that you have both been rather hasty, that it's no use to you to have the shoes later so you really do need a refund, and that will end the matter and you won't leave any feedback.
Honestly, it's only a pair of shoes - they haven't kidnapped your cat!

They pointed out that they legally had - unless they said otherwise - 28 days to supply the shoes. Plenty of e-businesses sell products they may not physically hold in their hands (or offices) at that particular moment you see them on the website. That is absolutely normal.

there is no proof that the seller didn't have the correct shoes in stock at the time of the listing.

I haven't seen any mention of the seller refusing to refund. A seller cannot refund until the item is returned to them.

All I have seen is the seller, having made a mistake (don't we all make mistakes sometimes?) go out of his way to offer a solution by a. offering a different size (daft solution which made me laugh but still an offer) and b. inform the buyer when the correct shoes would be available.

As for wanting a link!? ffs

The vendor's email was certainly in response to the buyer's email, but it referred to conditions at the time of the order. I take the phrase "we were trying to help you" to mean, "we sent the wrong shoes rather than send no shoes". In other words they were out of stock when they processed the order. I couldn't make any other interpretation. Also the vendor never used the word "mistake" or "error".

If I thought this was a one-off, I wouldn't think too much about it. But dh bought quite a bit of computer stuff off ebay a couple of years ago, and was continually being palmed off with goods that were different from what he'd ordered, like disk drives or CD-Roms of different make and specifications to what was advertised. The reason was always the same - "out of stock". There are just too many people advertising stuff that isn't actually in their warehouse. I don't know whether there's a name for it, but it should be called "speculative selling". They run out of an item, but continue to advertise it in the vague hope that they'll get new supplies before they have to fulfil more orders. But they don't lose any sleep if that doesn't happen. They just send the vendor some substitute, and hope they'll think it's too much bother to complain. Purpleflower might have overreacted to begin with, but she does have a legitimate complaint.

"the wrong item is dispatched" - suggetss a human error to me and you'd be hard pressed to prove otherwie.

where does it say at the time of the order.?

another way to take the phrase "we were trying to help you" is - they offered a smaller size when they heard about the urgency.

"To which they replied that they do not have..." includes the words do = present tense. Present being days after despatch and at the time they were trying to solve the problem. Past tense would indicate they didn't have them at the time of the listing.

There is no way of knowing whether they had them in stock at the time of the listing (although there is no indication to the contrary). They may be unscrupulous shoe/CD speculative selling monsters or they may be genuine sellers who made a mistake and went out of their way to offer a solution

They were wrong in claiming they had 28 days to supply the shoes. They had whatever deadline they had agreed with purpleflower. The Distance Selling Regs (which contain the 30 day delivery requirement unless the seller and buyer agree otherwise) specifically do not apply to internet auctions. Unless Trading Standards tell you different as it's a 'buy it now' item.

I would not buy from a site if there was a negative feedback implying it was fraudulent. To say you are going to give a negative as a FIRST reaction is hugely inflammatory and was a big mistake I think. It could have ruined their business, and so far this seems to be a case of simple human error.

Buy it now is different to an auction.