[rescue] Re: EBay treasure

[Eric Dittman]

> > The auctions are legally binding.
> 
> Yes and no.  A contract is not an immovable object.  It's a rather fluid
> concept, in reality.

Don't forget the eBay terms and conditions apply to the auctions,
not just what the seller puts in.

> The auction led to a contract and in the formation of that contract there
> was a unilateral mistake made.  In such a case, a court will look at 4 or
> 5 factors (in the U.S.). They are:
> 
> Whether the mistake concerned a basic assumption on which the contract was
> made.  It did, as to the price term.

Since the screen is presented for verification before the
auction is posted, I would think this one would not be
applicable.  The pricing, description, etc. are all entered
by the seller.  A screen presenting all the information is
the displayed, with a button that is clicked to agree that
the information is correct.  If the seller was not given a
chance to review the posting, like a store advertisement in
a newspaper, then the mistake is allowed to void the contract.
However, the seller agreed on the price twice:  Once when
creating the auction listing, and once when submitting the
auction listing.

> Whether the mistake had a material effect on the agreed exchange.  It
> does.

This does.

> Whether the seller assumed the risk of mistake.  Does not appear to have.

Right.

> In addition:
> 
> Whether enforcement would be unconscionable, i.e. inherently unfair.  It
> most likely would be; or,

I don't think the enforcement would be unfair.  The seller will
not be bankrupted or excessively harmed.  He'll just lose money
on the transaction.  People lose money on transactions every day,
and that's part of doing business.  Otherwise, if a seller had old
stock that didn't sell, he could demand the vendor buy the stock
back so he wouldn't have to sell it at a loss.

> Whether the other party (buyer) had *reason to know* of the mistake.  The
> archives of this list would provide ample evdience of that.

This one is undeniably true.

> If the seller can show the first 3 and then either of the last 2, the
> court will give them relief.  
> 
> Yes, there is a contract.  Yes, there is a way for the seller to get out
> of it, legally.  And yes, the seller may very well be able to do that
> based on the limited facts known.  Now, if this clown put up the same
> chips AGAIN at the same price, and the whole situation happened again,
> then you'd have several other actions to pursue against them.  

You can void your rights through carelessness.  In this case, the seller
exercise reasonable care.  He was afforded the opportunity to correct his
mistake and and did not.

> Sorry Eric, you're incorrect.  When an item is put up for auction, it is
> not an offer, but an invitation for offers(bids) from the audience.  See
> Uniform Commercial Code Section 2-328.  The "without reserve" generally
> applies to whether the seller can withdraw the goods, not whether the
> buyers offer is legitimate and binding.  

The auction is not handled by the seller, but through a third
party (eBay).  The reserve price on eBay is different than the
"without reserve" clause in normal auctions.  eBay does allow
"without reserve" separately in that the seller can withdraw
the item from auction until the auction closes.  The reserve
price on eBay is like a reserve price on a normal auction
with the exception that on an eBay auction, if the reserve
price is not met, the seller can sell the the highest bidder
anyway, but the sale is then outside eBays T&C.  In a normal
auction selling an item that did not meet the reserve is still
covered by the auction's T&C, and the buyer has to pay the
auction house's percentage fee.

I think my thoughts boil down to:

The seller entered a contract with eBay to auction the
item.  The seller gave eBay the listing information,
which eBay then asked the seller to verify as correct.
The seller verified the information and accepted the
auction listing as presented back to him by eBay.
-- 
Eric Dittman
dittman at dittman.net
Check out the DEC Enthusiasts Club at http://www.dittman.net/