Art trading online gmbh ebay
The precise content and scope of contract law governing the buying and the selling of goods on eBay have long been a cause for considerable concern — particularly for online users of eBay.
The rise in the use of online auctions has presented the law with a number of interesting challenges in consumer protection. This article examines the legal position of individual online auction users in Australia buyers and sellers and focuses on the potential risks, liabilities and obligations users may face.
Very little academic attention has, so far, been paid in Australia to the legal processes and issues relating to the use of online auction sites such as eBay.
It is, therefore, timely and appropriate that the issue be examined in detail and the law relating to online auction processes be clarified. This article examines whether current law sufficiently protects Australian consumers who utilise online auctions and whether additional legislative regulatory intervention is required.
The paper then looks at some judicial decisions made in Australia and overseas which have addressed the precise legal construction of eBay and its attendant responsibility to online consumers. Finally, the paper concludes that art trading online gmbh ebay enforcement of consumer rights is vital for online auctions.
The increasing use of the internet as an electronic source of information and as a tool for undertaking financial transactions has, of course, had ramifications and flow-on effects for online auction processes, such as eBay, with their usage showing a marked increase in recent years.
In particular, on eBay usage reported In a specifically local context, eBay is enormously popular in Australia. It has been suggested by some academic commentators that online auctions are one of the most successful forms of electronic commerce now operating in Australia.
The difficulty, however, has been that the legal regulatory frameworks and trade practices law enforcement agencies, as well as associated consumer bodies, have failed to keep pace with the increasing utilisation and consequent commercial growth of online auction sites, such as eBay. As a consequence, a mismatch has arisen between the art trading online gmbh ebay operation of online auction sites and the laws and associated art trading online gmbh ebay bodies applicable to this medium of trade and commerce.
The result of this has been the increasing prevalence of significant fraudulent activities on internet auction sites. The most common offences are, firstly, ones relating to the actual or non-performance of the transactions — vendors, for example, failing to deliver advertised goods as contracted.
An additional offence relates to failing to deliver the goods in a timely way, while a final common offence deals with failing to disclose all relevant information about the product or the terms of sale. Another growing difficulty relates to the sale of fake goods and the growing number of scams. The issue dealt with here is art trading online gmbh ebay these transactions constitute legally enforceable or binding contracts under contract art trading online gmbh ebay and statute.
However, we are, of course, cognisant of the fact that each transaction must be judged individually according to its particular facts and that the decision, then, is ultimately one to be adjudicated by the courts. It is imperative that consumers have assurance in the domain of online auctions, including all the statutory and common law art trading online gmbh ebay of protection accorded to purchasers in normal sale of goods transactions — if only to enhance consumer and public confidence in online sales processes.
This paper thus discusses the legal difficulties, for both vendors and purchasers, associated with undertaking sale of goods transactions on eBay. In doing this, it also suggests alternative strategies and methods that vendors and purchasers can use online to protect their interests and avoid some of the common pitfalls and traps into which users of electronic media may fall.
The paper also examines whether current law sufficiently protects Australian consumers art trading online gmbh ebay utilise online auctions and whether additional legislative regulatory intervention is required. It art trading online gmbh ebay looks at some judicial decisions made in Australia and overseas which have addressed the precise legal construction of eBay and its attendant responsibility to online consumers. This paper finally concludes that better enforcement of consumer rights is vital for online consumers.
Essentially, eBay is an extremely flexible venue or electronic medium where buyers and sellers may trade, which allows them to offer, sell or buy any product, at any time, from anywhere, in a variety of formats.
The wider online public who are interested in buying the listed product may then commence bidding for the item. Obviously, subsequent bidders must offer higher bids. After the expiry of the stated time period, the person buyer with the maximum bid is entitled to purchase the item at the price they have offered.
After receiving the payment from the successful bidder, the seller must make arrangements for delivering the item. Despite the fact that online auctions are similar to traditional auctions in many respects,  they are not subject to the same regulatory legal framework as normal contracts for the sale of goods in a traditional auction.
The auctioneer, as art trading online gmbh ebay, further collects payment for the item which is then passed onto the seller with the auctioneer receiving a fee for his or her services. Because of its distinctively online nature and its electronic medium, eBay, however, displays none of these processes. Further, eBay, as the auctioneer, does not physically deal with the bids, nor does it collect money, with the item being passed directly from the vendor to the buyer.
Another significant difference between eBay and the art trading online gmbh ebay auction process involves the crucial issue of timing. For example, most online auctions are conducted over a certain period of time — a few days, a week or a designated time — which assists the bidder who does not have to be constantly vigilant or even to be online at the close of the auction. Furthermore, in traditional auctions, all buyers and sellers are in one place and the auction continues as long as participants are actively bidding.
Online, the highest bid will be kept confidential from other users, which is not the convention undertaken at traditional auctions. An unfortunate by-product of this anonymity is that it may cause problems for consumer protection and, more problematically, can facilitate essentially undetectable fraudulent conduct.
As an indication of the fraudulent activities which it perpetuates, eBay itself has claimed that one-tenth of one percent of all transactions have been associated with complaints of fraudulent conduct to the relevant regulatory agency. Art trading online gmbh ebay anonymity of sellers is the most significant issue of concern and difference between eBay and online auction processes compared with traditional auctions.
Put simply, in online auction processes real names are never revealed. Moreover, most of the auction sites identify sellers or bidders by email addresses — which, in turn, may produce a further lack of trust and confidence.
In a traditional face-to-face environment, eye contact, a handshake and chatting may assist in facilitating a climate of basic trust between vendors and customers. Furthermore, the fact that the sheer volume of turnover within online auctions is many times greater than that of traditional auctions is also a cause for concern.
Which law is applicable and which regulatory agency should oversee the art trading online gmbh ebay process? This issue will be discussed later in this paper. The most important concern with eBay and challenge for regulators is simply that buyers lack the ability to inspect physically the merchandise which they aspire to purchase.
Accordingly, complaints levelled against eBay auctions usually take the form of breaches of contract for non-delivery of goods; unreasonable delays in the delivery of goods; the goods not matching the description; and, finally, goods that were indeed faulty or of unsatisfactory quality. The inability to physically inspect the goods prior to purchase and the problems that art trading online gmbh ebay has facilitated are best reflected in a recent survey art trading online gmbh ebay found that 22 percent of buyers surveyed reported paying for items and not receiving them.
Although eBay transactions are commonly referred to as auctions, there are several fundamental differences, worthy of restatement, between traditional regulated auctions and the transactions that occur over the eBay platform. It has somewhat limited legal powers to intervene in disputes between the vendor and purchaser, and is not generally legally responsible for the actions of individual buyers or sellers who trade on the site.
Hence, eBay cannot ensure, and does not profess to guarantee, that a buyer or seller will actually complete a transaction or act lawfully in using art trading online gmbh ebay site. In effect, eBay operates only as an online platform service provider or electronic medium through which bids can be made. This legal uncertainty pertaining to eBay auction processes in Australia has been resolved by the recent highly-publicised case of Peter Smythe v Vincent Thomas in which the NSW Supreme Court ruled on the enforceability of eBay contracts involving a minimum bid reserve.
The court held that the listing of the product on eBay was an offer and that the purchaser had accepted this offer by making the highest bid. As will be discussed below, this landmark case has changed the future of cyberspace. EBay is not legally or contractually liable for the actions of individual buyers or sellers who trade on the site.
Obviously, the users of the site must agree to the terms of these agreements — or exemption clauses — before undertaking commercial transactions on the site. Consequently, eBay assumes no liability whatsoever for any monetary or other damage suffered by the consumer on account of:. In this respect, eBay answers no liability for any direct, indirect, incidental, special, consequential or exemplary damages, including, but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses even if eBay has been advised of the possibility of such damages.
EBay is usually not a party to the contract and art trading online gmbh ebay not consequently liable for claims made about the goods — such as the non-delivery of the goods or damages resulting from a dispute in relation to the goods. Legally, eBay remains neutral. In reality, then, eBay will not, indeed, be liable for any economic losses arising out of, or in connection with, the User Agreement, and buyers and sellers use the site at their own risk.
Clearly, there are significant problems inherent in the eBay or online auction process from the perspective of consumer protection legislation, which warrant close attention and urgent remedy. Art trading online gmbh ebay is this issue to which attention is now turned. For example, it now appears that a significant portion of online auction users in Australia are experiencing problems when shopping at online auction sites. Online consumers are entitled to be afforded the same degree of protection as all other types of consumers.
In summary, the provisions of the TPA prohibit businesses engaging in certain misleading advertising, fraud, and other unfair and dishonest practices. Generally, the implied terms relate to goods and services and concern issues such as quality, title, and compliance with samples or descriptions. Section 52 of the Act states that a corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
Section 52 extends to cover all consumer contracts and transactions that are effected in the course of trade or commerce. In addition, the TPA does have extraterritorial effect: This decision clearly proves that the TPA impacts upon activities that occur overseas but that demonstrate sufficient connection to Australian activities. This decision was followed by Voth v Manildra Flour Mills Pty Ltd in which the court decided that if a statement is directed from one place to another where it is known or even anticipated that it will be received, the statement can legitimately be deemed to have been made at the place to which it was directed.
According to s 53 of the TPA, it is also unlawful to make particular types of false or misleading representations, such as falsely representing that goods are of a certain standard, quality and value, or falsely representing that goods have a certain sponsorship or approval when they, in fact, have no such sponsorship or approval. Section 53 also prohibits the making of a false or misleading representation in relation to the price of goods, as well as the making of a false or misleading representation concerning the place of origin of goods.
Section 53 g of the TPA prohibits a corporation from making false or misleading misrepresentations about the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy.
This provision is especially relevant to online purchasers, as vendors art trading online gmbh ebay seek to advertise or represent limited refund policies — for instance, by explicitly stating that no refunds will be provided. In this respect, if the vendor misrepresents the extent or degree of the coverage of the specific terms and conditions he or she may be in breach of s 53 g.
Section 58 of the TPA prohibits accepting payment where there is an intention not to supply goods or services, or to supply goods or services materially different from the art trading online gmbh ebay or services for which payment or other consideration is accepted. When transactions are conducted primarily via the internet, it becomes more difficult to ascertain the place of business of the parties, art trading online gmbh ebay place of contracting, and the place of performance of the transactions.
In response to this, s 67 of the TPA provides that the proper law of a contract for a corporation to supply goods or services to a consumer would, unless otherwise specified, be the law of any part of Australia. If such a contract contains a term that purports to substitute, or has the effect of substituting, provisions of the law of some other country, state or territory for all or any of the provisions of this division, s 67 will render the governing law clause, and most likely a governing forum clause, unenforceable.
As discussed above, s 67 of the Act will, in many cases, imply these terms into the contract, overriding any provision which purports to substitute, or art trading online gmbh ebay the effect of substituting, the law of some other country for the provisions of Part V Division 2.
This provision of the TPA therefore has potentially broad implications for online contracts. According to ss 70 1 and 72 of the TPA, where a corporation contracts to supply otherwise than by sale at auction goods to a consumer based on description, there is an implied condition that the goods will conform to the description. If the agreement to supply is by reference to a sample as well as to a description, the bulk of the goods must conform art trading online gmbh ebay the description as well as to the sample.
However, these implied conditions — ss 70 171 1 and 71 2 — do not apply where there is a supply of goods by way art trading online gmbh ebay sale by auction. It follows that consumers purchasing goods via online auction sites such as eBay will not be protected by the Part V Division 2 implied terms. Australian businesses could potentially use eBay art trading online gmbh ebay dispose of goods which are not of merchantable quality, or are not fit for purpose, without being hindered by these implied terms.
Similar terms may be inferred in these transactions by state-based Sale of Goods Actsbut such terms can generally be excluded by contract, whereas s 68 ensures that the TPA-implied terms cannot be thus excluded. The regulators should therefore attempt to expand this provision to online auctions.
As has been pointed out:. It is questionable whether the rights and obligations imposed by current consumer protection art trading online gmbh ebay in Australia — particularly under the Trade Practices Act — can be enforced as effectively in the online environment as in the conventional face-to-face commercial environmental context which is technology-neutral. Accordingly, it is argued that:. If a seller breaches these conditions, then a buyer may be entitled to compensation for any associated loss in value of the goods.
In addition, according to state and territory-based Fair Trading Actstraders who operate on internet auction sites art trading online gmbh ebay comply with the applicable state legislation.
A business entity means a natural or legal person or a partnership with legal personality that, upon entering into a legal transaction, acts in exercise of his or its trade, business or profession.
A partnership with legal personality is a partnership that has the capacity to acquire rights and to incur liabilities. A consumer means any natural person who enters into a legal transaction for a purpose that is outside his trade, business or art trading online gmbh ebay. Forms of contracting 2. In excerpt, this provision reads: In doing so, the seller determines a starting or fixed price and a time limit within which the offer can be accepted listing duration.
If the seller sets a minimum price in the auction-style format, then the offer is made subject to the proviso that the reserve price is met. The seller may issue offers in auction-style format with an additional Buy It Now feature. This offer may be exercised by the buyer as long as no bid has been placed for this item or the reserve price has not yet been met. For fixed price items, the buyer accepts the offer by clicking the 'Buy It Now' button and subsequently confirming the purchase. For fixed price items, where the seller has selected the 'Immediate Payment' option, the art trading online gmbh ebay accepts the offer by clicking the 'Buy It Now' button and immediately completes the payment process.
The buyer may also accept offers for several items by placing the items in the shopping cart if available and immediately completes the payment process. In auctions, the buyer accepts the offer by placing a bid. Acceptance is subject to the proviso that the buyer is the highest bidder when the listing expires. A bid expires if another buyer places a higher bid whilst the listing is still active. If the seller terminates the offer early, a contract is concluded between the seller and the highest bidder, unless the seller was entitled to withdraw the offer and to cancel the submitted bids.
Buyers may withdraw their bids only for a legitimate reason. After a legitimate withdrawal of a bid, no contract will be concluded after the auction has ended between the seller and the user who reverts to being the highest bidder following the withdrawal of the bid.
In certain categories, the seller may choose to list an item with the Best Offer option, which allows buyers and sellers to negotiate the price for an item.
If an item is deleted by eBay before the listing has art trading online gmbh ebay, no effective contract is concluded between the buyer and the seller. Where the term 'seller' is used in the excerpt above, it refers in this case to the Seller, while any reference in the excerpt to the term 'Buyer' means the 'Customer' for the purposes of these General Terms and Conditions. Next, the 'Bid' button must be clicked. In the next step, eBay requests the Customer to review and confirm the bid entered.
The maximum amount entered by the Customer is repeated and the Customer receives the following message:. If you click the 'Confirm Bid' button and are the highest bidder at the end of the auction, you enter into a binding contract with the Seller. The full description of the item is provided below.
The email to the Customer includes two buttons: Depending on the selected format, the steps stipulated by eBay must be followed. In the final step, the Customer can click on the 'Buy' button. The Customer may choose between logging into an existing eBay account art trading online gmbh ebay the order, creating art trading online gmbh ebay new eBay account for the order, or carrying out the transaction without registration with eBay, as a 'Guest'.
In the next step the Customer is prompted by eBay to 'Review and Buy'. The item is specified again, along with the price and the information on the shipping options, delivery and payment. Below the 'Buy' art trading online gmbh ebay, the following suggestion is provided to the Customer: Another window then opens with the heading 'Make Offer', where the Customer can enter the proposed price.
Then the Customer can click on 'Review offer'. Another window with the heading 'Review and confirm offer' opens. The Seller has several options to respond to the Best Offer. The Seller may immediately accept, decline or consider the Customer's offer i. In the latter case, the steps described above must art trading online gmbh ebay completed again. In all processes referred to in 2. After clicking the relevant button e. The Customer can then change input errors again using the normal keyboard or cursor functions in the respective input fields.
Prices, maturity and shipping 1 All prices of items indicated are total prices including VAT or - if so expressly indicated in the item description - total prices including VAT as governed by the requirements of differential taxation according to section 25a of the Value-Added Tax Act [UStG]; in these cases, VAT is included in the total price but is not specified separately.
The following applies to these costs: On eBay see above, 2. They become due for payment on conclusion of the contract in the same manner and form together with the purchase price. Retention of title The Seller retains title to the goods delivered until full payment. Means of art trading online gmbh ebay delivery; delivery restrictions; shipping costs; transfer of risk 5. There are various payment methods available to customers, which are stated art trading online gmbh ebay the respective offer page of the seller on eBay.
If prepayments are agreed, the payment is due immediately after conclusion of the contract 5. If the customer chooses a payment method offered by PayPal, payment processing is carried out via the online payment service PayPal Europe S.
If the customer chooses "PayPal invoice" as the method of payment, the seller will pay his payment claim against the customer as part of a current factoring contract to PayPal. PayPal carries out a credit check prior to the acceptance of the Seller's declaration of assignment using the customer data provided.
In the case art trading online gmbh ebay a negative test result of the creditworthiness, the seller reserves the right to art trading online gmbh ebay the customer the payment method "PayPal invoice". If PayPal accepts the "PayPal Invoice" payment method, the customer has to pay the invoice amount to PayPal within 14 days of receipt of the goods.
Payments shall be made by bank transfer, Paypal or in cash. Delivery is made at the shipping costs stated art trading online gmbh ebay the item description. The Customer will be notified of any relevant delivery restrictions. If the Customer is a consumer, the Seller shall bear the shipping risk in any event, irrespective of the type of shipping. The risk of accidental loss of the purchased goods passes to the consumer upon transfer to the latter.
If the Customer is a business entity, all risks and hazards of shipping pass to the Customer as soon as the purchased goods are transferred by the Seller to the logistics partner. Notice of right of revocation If you are a business entity cf. The following applies to consumers para. Right of revocation You have the right revoke this contract within one month without stating a reason.
To exercise your right of revocation you must inform me. You may use the Notice of revocation form attached hereto, but this is not obligatory. Timely submission of the notice of revocation before the end of the revocation period is sufficient for the purpose of meeting the revocation time limit. Consequences of revocation If you revoke this contract, we will refund all payments that we have received from you, including delivery costs with the exception of any additional costs incurred by your optional choice of another mode of delivery other than the least expensive standard delivery offered by us without undue delay, and at the latest fourteen days from the date on which your notice of revocation art trading online gmbh ebay this agreement has been received by us.
We will refund you using the same method of payment that you used for the initial transaction, unless otherwise expressly agreed; in no instance will you be charged fees art trading online gmbh ebay this refund. We may withhold reimbursement until we have received the goods returned by you, or once you have supplied us with evidence of having returned the goods, depending on which takes place first.
You shall return or deliver the goods to us without undue delay and in any event no later than fourteen days from the date on which you inform us about the revocation of this agreement.
This deadline is considered as met if you return the goods before the fourteen day period elapses. You shall be obliged to compensate us for any loss of value of the goods if this results from any improper handling of the goods not required for inspection of their condition, properties and functioning.
Standard revocation form Should you wish to revoke the contract, please complete this form and send it to us. Unless otherwise agreed by the Parties, the right of revocation does not apply to the following contracts:. Unless otherwise agreed by the Parties, the right of revocation expires prematurely in the case of the following contracts:.
Please avoid damage and contamination of goods. If possible, please return the goods to us in their original packaging and with all accessories and all packaging components. If necessary, please use protective outer packaging. If you no longer have the original packaging, please provide suitable packaging for adequate protection against damage during transport.
Please note that the above para. Compensation in the event of revocation In derogation from section 2 No. Liability for defects; warranties; liability All our products art trading online gmbh ebay subject to our statutory liability for defects. Liability and warranties on our part are governed by art trading online gmbh ebay relevant statutory provisions.
The warranty period for used items is twelve months. Claims for damages are excluded from this provision. Any guarantees given do not restrict the statutory warranty claims. Consumer information in distance contracts relating to the purchase of goods The Seller has submitted to the eBay Code of Conduct, which can be viewed on the Internet at the following link: The seller is not subject to any special codes of conduct, which are not mentioned above.
The essential characteristics of the goods offered by the Seller as well as the validity of fixed-term offers are described for the benefit of the Customer in the individual product descriptions provided as part of the Internet offer. German is the sole language for concluding the contract. The Customer may raise any objections and warranty claims at the address indicated in the provider identification.
Information on payment, delivery and performance is provided in the offer for the benefit of the Customer. Saving of contract text on the eBay online market platform After conclusion of the contract, the Seller will not save the text of the contract and will not make the text of the contract available art trading online gmbh ebay the Customer.
However, the text of the contract will be archived by eBay and can be retrieved by the Customer free of charge for a period of 90 days after conclusion of the contract at www.
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