Advice needed on business equipment sold online and stuck in US Customs... help!!

[MissSusanStoHelit]

Posted in AIBU as well, for traffic...

I sold my business last month - it's basically a very expensive specialist piece of equipment which is small enough to fit in a large suitcase, so it was a mobile business for me and easy to sell.

I advertised on Gumtree UK on the advice of the manufacturer (who are UK based) and got quite a few responses - one in particular was very interested and we had an email chat about the service history, serial numbers etc and he seemed keen. He said he was a regular importer into the US of these machines second-hand, and was particularly interested in mine because it's the latest model with loads of extra features. A few days later he got in touch to say that his friend would like to buy it, but that she was in America so they would handle all the shipping details.

They arranged for a broker to come test the machine, pay the money and take it away to be packaged and Fedexed to the US. I wasn't really happy with sending to America but they were handling all the courier details so I agreed. With me so far?

Last night I get a call from the lady in America in a panic - the machine is stuck in Customs because it needs a "Medical Device Listing Number" in order to be released. Now, the technology is recently FDA approved and I was part of the blind panel that did the treatments for the 501K so I included all those details in the paperwork with the machine when I handed it over. The number they are looking for is a different one, issued by the manufacturer so I contacted them today to see if they could give it to me - and have opened up a huuuuge can of worms...

Apparently the machine was not supposed to be sold in the States because my particular machine has not been correctly labelled as per the FDA agreement (I bought it before the FDA approval came through). Also, there is an exclusivity agreement with their US distributor prohibiting sale of machines through any channel but theirs. So the machine has been illegally imported and will have to be returned to me. I had NO idea that this was the case, and am waiting for the Director to call me back to talk about next steps.

if the machine gets sent back, AIBU to think I'm not responsible? I feel it should be the guy who arranged the deal and his broker who tests and ships the machines on a regular basis - if he has been importing loads of these machines he should be aware of the restrictions on them. I did not advertise it for sale in the USA, I did not ship it to the USA so does that mean I bear responsibility for refunding the money if it's sent back? Is it up to them to get the correct paperwork and sort it out? Or should I have done the research before agreeing the sale myself?

Please help - it's a LOT of money we're talking about (over 12K) and I am stressing... sad

I think this is quite a difficult position. Even if it's unfair I think you'll probably still be liable for the costs as the sale has not been completed. Has the £12K been handed over to you yet. Poor you. It's a can of worms. Hope you get it sorted out.

Yes, sorry should have said - they did a wire transfer for half into my account, and the broker paid the remainder in cash when he inspected and collected the machine. I have a signed receipt from him confirming full working order and final payment... does this help?

Vivienmary I'm not sure that is correct. The courier is the purchaser's agent rather than the sellers in this case. The sale was concluded when the buyer's agent took delivery, subject only to the machine being in working order. The contract was to supply the machine to the courier in the UK, not to deliver it to the buyer in the US. Given that the machine cannot be imported into the US however, and that the buyer has witheld half the cost, I would have thought that a realistic solution would be to return the machine to the OP at buyer's expense, and for her to refund and resell the machine.

Hereedward - I've been paid in full, if that helps!

Sorry I didn't think the money had been paid in full but it has. It was up to the broker to ensure the machine was satisfactory for his client before he completed the purchase. In that case I think Hereward is right but not sure.

Do you have permission to sell the item?

You need to know if there is a similar exclusivity clause in action anywhere else, such as in the UK.

Legally, I believe that the sale is complete if you've been paid, and the machine has been shipped. It belongs to whomever paid you, and it is the responsibility of the buyer/broker to get the machine to themselves.

HOWEVER, it is a bit confused by the fact that you were aware that it was being imported into the US, but that wasn't actually possible. It may be that this makes no difference, and it's the buyers problem, but our legal system doesn't typically allow ignorance as a defence. Therefore, the buyer could claim that it was unfit for purpose, if it can't be used in the way they intended.

Have you heard from the buyer? They may not want to return the machine to you, although they'll clearly need to collect it from you if that is where it is being returned.