Ebay Buyer with Cold Feet..Paid but now wants to renege

[Harry]

Well not really

Seems like there was offer, acceptance and consideration paid. It would be binding contract.

That said if she won't sign the transfer papers then you would have to seek specific performance from a court, expensive and the court will probably not give it...

Tom

There is no contract here due to that silly little clause in the ebay disclaimer that says the auction is not binding. Tom is correct under "common law auctions". Many of us (even I) have overlooked that ebay clause and that causes problems when it gets before a fact finder. As unfair as it may sound, the $400 should go back. The only specific performance obtainable here in the judicial system (small claims or Judge Judy's Court) would be an escort out the door (also known as a boot). Unfortunately, Marylyn does not even qualify for what the law calls in some jurisdictions incidentials. Reading between the lines, the buyer sounds like she feels badly, so you (Marylyn) should draft and send a nice but firm letter (email) indicating some of the suggestions above and follow it up with a copy to her certified mail if you have her address. But if you try to enforce these things, you are going to lose.

 

[T_R_Oglodyte]

There is no contract here due to that silly little clause in the ebay disclaimer that says the auction is not binding.

The auction is not binding in the sense that the "winning" bidder is not then requiired to complete the transaction. The auction is, in essence, an "invitation to trade", similar to when a company puts an ad in the paper advertising prices for various products. The advertisement is not an offer to sell, but an invitation to trade.

In "invitation to trade" situations, the contract is formed when the buyer establishes their readiness to purchase the item under the advertised conditions, and the seller accepts the buyer's offer to purchase the item as advertised. In a retail transaction "offer" typically occurs when the buyer brings the item to checkout and provides payment; "acceptance" is established when the seller accepts payment from the buyer.

I think that is precisely what happened in this case; when the bidder sent the money the bidder said "I am willing to buy the unit as advertised in the auction". The seller accepted payment, thereby completing offer and acceptance. The parties do in fact have a completed contract; offer and acceptance, consideration, and legal capacity.

******

The fact that it was a non-binding eBay auction is irrelevant in this situation. In essence, all the auction does is establish a connection between a potential buyer who is interested in an item at a certain price and a potential seller of that item at that price. That is exactly the same as when I walk into Home Depot carrying a flyer advertising 3/4-in CDX plywood in 4'x8' sheets for $10 each.

At Home Depot the contract is formed when I go to checkout with my plywood and Home Depot accepts my payment. In the case of an eBay non-binding auction, the contract is formed when the buyer says they want to proceed with the transaction and provides payment, and the seller accepts the payment.

Note the difference with a regular eBay auction. In a regular eBay auction the contract is formed when the auction ends. In the non-binding auction the contract is only formed later, with an offer and acceptance that occur subsequent to the auction.

****

That being said, it's certainly not worthwhile for the seller to try to compel performance. But I think the seller is entirely justified in holding the money provided until the buyer completes the details of the transaction. Or if the seller does decide to allow the buyer to terminate the deal the seller is certainly entitled to keep a reasonable portion of the money as compensation for damages.

Had the buyer not sent money the sellers position would be substantially weaker. But when the buyer sent money I think it's hard to construe that as anything other than an legitimate offer to purchase an item advertised as available by a seller.

 

[lasvegasnewlist]

Chasing after $400.

I stopped dealing on ebay 3 years ago under similar circumstances. You will lose under every scenario imaginable. Even with the law on your side. Ebay is NOT fair and balanced.

It is hard for me to say this, but right now, the buyer will get her $400 back and you will be charged fees from the escrow company. I would just be thankful if she agrees to pay the cancelled escrow fees.

 

[djs]

I have to agree with Steve's comments. The buyer did show her intent when she sent the money. At best (for her) it should be treated as a non-refundable deposit. The seller may end up with actual damages in the case that if the auction gets re-listed and now isn't sold until after the next round of MFs are due they'll be out that money too.

I say keep the $400.

 

[shoji]

The auction is not binding in the sense that the "winning" bidder is not then requiired to complete the transaction. The auction is, in essence, an "invitation to trade", similar to when a company puts an ad in the paper advertising prices for various products. The advertisement is not an offer to sell, but an invitation to trade.

In "invitation to trade" situations, the contract is formed when the buyer establishes their readiness to purchase the item under the advertised conditions, and the seller accepts the buyer's offer to purchase the item as advertised. In a retail transaction "offer" typically occurs when the buyer brings the item to checkout and provides payment; "acceptance" is established when the seller accepts payment from the buyer.

I think that is precisely what happened in this case; when the bidder sent the money the bidder said "I am willing to buy the unit as advertised in the auction". The seller accepted payment, thereby completing offer and acceptance. The parties do in fact have a completed contract; offer and acceptance, consideration, and legal capacity.

******

The fact that it was a non-binding eBay auction is irrelevant in this situation. In essence, all the auction does is establish a connection between a potential buyer who is interested in an item at a certain price and a potential seller of that item at that price. That is exactly the same as when I walk into Home Depot carrying a flyer advertising 3/4-in CDX plywood in 4'x8' sheets for $10 each.

At Home Depot the contract is formed when I go to checkout with my plywood and Home Depot accepts my payment. In the case of an eBay non-binding auction, the contract is formed when the buyer says they want to proceed with the transaction and provides payment, and the seller accepts the payment.

Note the difference with a regular eBay auction. In a regular eBay auction the contract is formed when the auction ends. In the non-binding auction the contract is only formed later, with an offer and acceptance that occur subsequent to the auction.

****

That being said, it's certainly not worthwhile for the seller to try to compel performance. But I think the seller is entirely justified in holding the money provided until the buyer completes the details of the transaction. Or if the seller does decide to allow the buyer to terminate the deal the seller is certainly entitled to keep a reasonable portion of the money as compensation for damages.

Had the buyer not sent money the sellers position would be substantially weaker. But when the buyer sent money I think it's hard to construe that as anything other than an legitimate offer to purchase an item advertised as available by a seller.

I think you are confusing the issues. Contract law does allow for offer and acceptance orally. However, the purchase of real property, which many timeshares are considered, is governed by the Statute of Frauds. Real property requires a signed writing in order for the contract to be enforceable. Without a writing, the agreement or contract is voidable by any party.

In this case, you may try to argue partial performance, but you have not performed and given over the timeshare. The only damages you may have would be the Escrow cost, but if you are able to get a refund you have no damages. If you get a partial refund, then you might be justified in stating she is not entitled to her deposit back. I would just contact the Escrow company, ask for a refund, and then relist the property. The principles of contract law only apply in the sale of Real Property if you have a writing. If no writing, the contract is VOIDABLE.

Sorry!

 

[Egret1986]

I agree, eBay is not fair and balanced.

I stopped dealing on ebay 3 years ago under similar circumstances. You will lose under every scenario imaginable. Even with the law on your side. Ebay is NOT fair and balanced.

It is hard for me to say this, but right now, the buyer will get her $400 back and you will be charged fees from the escrow company. I would just be thankful if she agrees to pay the cancelled escrow fees.

I used to sell a lot on eBay. To me, it's a great place to buy, but I do not like selling on eBay any more. Things always seemed stacked against the sellers. As a seller, you can't even leave negative feedback for buyers that leave you high and dry. That change, coupled with a couple of bad experiences with buyers, made me decide that I would utilize other venues for selling items.

To the OP, I hope you come out of this with only the loss of a sale. This buyer is similar to a couple that I dealt with on some eBay sales in the past. It shouldn't be your problem that this person has buying issues that are going to get her into trouble with her spouse, but unfortunately the way that eBay is set up; it is now your problem and may ultimately cost you more money. Good luck to you!

 

[T_R_Oglodyte]

I think you are confusing the issues. Contract law does allow for offer and acceptance orally. However, the purchase of real property, which many timeshares are considered, is governed by the Statute of Frauds. Real property requires a signed writing in order for the contract to be enforceable. Without a writing, the agreement or contract is voidable by any party.

In this case, you may try to argue partial performance, but you have not performed and given over the timeshare. The only damages you may have would be the Escrow cost, but if you are able to get a refund you have no damages. If you get a partial refund, then you might be justified in stating she is not entitled to her deposit back. I would just contact the Escrow company, ask for a refund, and then relist the property. The principles of contract law only apply in the sale of Real Property if you have a writing. If no writing, the contract is VOIDABLE.

Sorry!

I believe Royal Holiday is a vacation club, not real estate.

 

[T_R_Oglodyte]

I believe Royal Holiday is a vacation club, not real estate.

But be that as it may, she is entitled to damages, just as she bears the burden of mitigating the damages.

In the end, the easiest and most practical thing is probably to refund money less the cost of listing fees, non-refundable charges from the escrow company, and any other out of pocket expenses.

 

[shoji]

But be that as it may, she is entitled to damages, just as she bears the burden of mitigating the damages.

In the end, the easiest and most practical thing is probably to refund money less the cost of listing fees, non-refundable charges from the escrow company, and any other out of pocket expenses.

As for whether Royal Holiday Vacation Club is Real Property, I would not know either way, that is why is stated most timeshares are real property. They may actually be deeded real property with CC&R which make it a club, but I don't know.

I think me and you agree at the end. That he should refund the money and relist the property. He may attempt to withhold non-refundable fees from the Escrow company. As for the listing fees, the seller won't have relisting fees since Ebay will allow you to relist it for free. And, other out of pocket expenses will likely not not be allowed, since they are not forseeable damages and are likely nothing since it is early on. (Sorry for any spelling error or gramatical problems, I dont proof postings.)

 

[Harry]

WOOPS, Humble Pie time

Re-reading the posts on this, Steve is correct. Good reasoning. I think I got the buyer and seller mixed up in my haste. However, from a legal stand point, I can find no published cases supporting Steve's position and this concerns me. With all the many ebay transactions there should be at least one. It looks as if part of the agreement was that both Marylyn and the buyer agreed they would split the fees and escrow ($800). The buyer is out $400 (Marylyn apparently is willing to give up her share). So, just reverse what I said earilier. As far as mitigating is concerned I also think that would be the right thing to do. Will someone come after Marylyn if she does not; probably not. Thanks for keeping me on my toes, Steve.

 

[shoji]

Re-reading the posts on this, Steve is correct. Good reasoning. I think I got the buyer and seller mixed up in my haste. However, from a legal stand point, I can find no published cases supporting Steve's position and this concerns me. With all the many ebay transactions there should be at least one. It looks as if part of the agreement was that both Marylyn and the buyer agreed they would split the fees and escrow ($800). The buyer is out $400 (Marylyn apparently is willing to give up her share). So, just reverse what I said earilier. As far as mitigating is concerned I also think that would be the right thing to do. Will someone come after Marylyn if she does not; probably not. Thanks for keeping me on my toes, Steve.

Harry:

What do you think about the Statute of Frauds? I believe the reasoning behind why bidding on Real Property on Ebay is not binding, because it violates the Statute of Frauds and is not enforceable unless there is a signed writing.

 

[T_R_Oglodyte]

Harry:

What do you think about the Statute of Frauds? I believe the reasoning behind why bidding on Real Property on Ebay is not binding, because it violates the Statute of Frauds and is not enforceable unless there is a signed writing.

As I understand, the reason eBay real estate auctions are not binding isn't because of Statute of Frauds; it's because by taking a commission on a transaction between buyer and seller eBay legally would become a real estate broker, requiring that they become licensed as brokers in all 50 states and carry all of the duties in the transaction of a real estate broker. Then there are all of the other issues that might attend to being involved with real estate transactions on an international basis.

 

[shoji]

As I understand, the reason eBay real estate auctions are not binding isn't because of Statute of Frauds; it's because by taking a commission on a transaction between buyer and seller eBay legally would become a real estate broker, requiring that they become licensed as brokers in all 50 states and carry all of the duties in the transaction of a real estate broker. Then there are all of the other issues that might attend to being involved with real estate transactions on an international basis.

Steve:

Let me ask you this;

Do you agree that generally in the United States the sale of real property is covered under the Statute of Frauds?

 

[icydog]

The buyer keeps on putting me off. She sent me an email telling me she will honor her commitments but her marriage will fall apart due to her actions.I wonder why she is stalling. Could it be she has a claim against me with her cc?

I did send her an email and suggested I may have a taker for her part-- but she would have to leave the $400 on the table.

The closing company wants $150 to ditch the deal. Then there are the ebay expenses of $100 and paypal of $15 = $265.

I have to relist the auction if I went the ebay way. I cannot relist this auction for free since this is he second time I am listing it. So I would be out another $100 for ebay fees, so now we are down to $100.

If I give it away it is going to cost me an additional $150 from my pocket since nobody will pay me the $150 difference, the money the closing company demands, but several people want it for free.

 

[shoji]

The buyer keeps on putting me off. She sent me an email telling me she will honor her commitments but her marriage will fall apart due to her actions.I wonder why she is stalling. Could it be she has a claim against me with her cc?

I did send her an email and suggested I may have a taker for her part-- but she would have to leave the $400 on the table.

The closing company wants $150 to ditch the deal. Then there are the ebay expenses of $100 and paypal of $15 = $265.

I have to relist the auction if I went the ebay way. I cannot relist this auction for free since this is he second time I am listing it. So I would be out another $100 for ebay fees, so now we are down to $100.

If I give it away it is going to cost me an additional $150 from my pocket since nobody will pay me the $150 difference, the money the closing company demands, but several people want it for free.

Other people want it for free, will they split the costs with you?

So if you give it away instead of having to relist it and selling for .01, you won't have the $100 listing fees.

Just let her know there is a $150 fee from the Escrow company that is non-refundable, and a $15 for paypal fee. That you could only refund her the difference of $235.00.

 

[icydog]

Other people want it for free, will they split the costs with you?

So if you give it away instead of having to relist it and selling for .01, you won't have the $100 listing fees.

Just let her know there is a $150 fee from the Escrow company that is non-refundable, and a $15 for paypal fee. That you could only refund her the difference of $235.00.

How about the Ebay fees of $100? I had to pay Ebay $100 for the auction. Shouldn't I include them. Nobody wants to split anything. But I have gotten offers for taking over the contract for free.

 

[shoji]

How about the PayPal fees of $100? I had to pay Ebay $100 for the auction. Shouldn't I include them. Nobody wants to split anything. But I have gotten offers for taking over the contract for free.

I'm sorry, I must have misread your previous post. Did you say you have Paypal fees of $100? If so, why are the fees so high?

 

[shoji]

I see the correction, I don't think you could include the Ebay fees unless you have to pay that amount to relist the timeshare. That is one of the cost you agree to incur even if there were no bids on the property.

 

[shoji]

I see the correction, I don't think you could include the Ebay fees unless you have to pay that amount to relist the timeshare. That is one of the cost you agree to incur even if there were no bids on the property.

But, I thought if you filed a dispute with Ebay, that they would allow you to relist it for free? Did they change their policy or is there sometype of exception?

 

[london]

Cost to Give Away Timeshare

The buyer keeps on putting me off. She sent me an email telling me she will honor her commitments but her marriage will fall apart due to her actions.I wonder why she is stalling. Could it be she has a claim against me with her cc?

I did send her an email and suggested I may have a taker for her part-- but she would have to leave the $400 on the table.

The closing company wants $150 to ditch the deal. Then there are the ebay expenses of $100 and paypal of $15 = $265.

I have to relist the auction if I went the ebay way. I cannot relist this auction for free since this is he second time I am listing it. So I would be out another $100 for ebay fees, so now we are down to $100.

If I give it away it is going to cost me an additional $150 from my pocket since nobody will pay me the $150 difference, the money the closing company demands, but several people want it for free.

I think your goal is to be rid of this timeshare. Even if it costs you $500 to have it out of your name and into someone else's, it will be worth it.

I have sold weeks at a loss, and was happy to have them gone. Over the years, we now have the one's that are keepers.

Good luck.

 

[ace2000]

Who does the escrow company refund the $400 directly to? If it's the buyer, then you're at their mercy. So, instead of you figuring out what is fair - it will be the buyer that determines what is fair in her mind.

Good luck!

 

[lasvegasnewlist]

Cancel escrow

The escrow company will have an official Cancellation of Escrow, where they will spell out their fees for their costs in the escrow. Request the escrow company to deduct the costs from the $400 the buyer sent to them, and send her the remaining balance. If she signs that refund check, you are done with her.

I would NOT under any circumstances contact her, file any complaints with ebay, threaten anybody or demand any money from escrow. The more time and effort the escrow company spends on this, the more their fees become, and the less money the buyer gets as a refund, the less likely she will hold out for the full $400.

 

[icydog]

The escrow company will have an official Cancellation of Escrow, where they will spell out their fees for their costs in the escrow. Request the escrow company to deduct the costs from the $400 the buyer sent to them, and send her the remaining balance. If she signs that refund check, you are done with her.

I would NOT under any circumstances contact her, file any complaints with ebay, threaten anybody or demand any money from escrow. The more time and effort the escrow company spends on this, the more their fees become, and the less money the buyer gets as a refund, the less likely she will hold out for the full $400.

The escrow company wants no part in refunding fees to her. She paid me by paypal and I sent the escrow company the full amount. Therefore it impinges upon me to return a portion of her money.

It may well be the point where I let her out of the deal and take the loss. It has cost me so much for ebay costs that it is like a bottomless pit. Taking the loss of the $800 may be the easiest and cheapest way in the long run.

 

[ace2000]

Marylyn,

This is so confusing to follow... I think you're in better shape, since you paid the escrow company directly. I would take out any fees you get stuck with, and refund the difference to the buyer. You can also dispute those fees with eBay and PayPal, and get a refund, since you didn't close the sale.

How do you lose $800? I must have missed something.

 

[icydog]

Marylyn,

This is so confusing to follow... I think you're in better shape, since you paid the escrow company directly. I would take out any fees you get stuck with, and refund the difference to the buyer. You can also dispute those fees with eBay and PayPal, and get a refund, since you didn't close the sale.

How do you lose $800? I must have missed something.

How do you dispute fees with Ebay. I tried and they said I had to pay even though the units never sold. I got one free re-listing but that's it.

Closing= $300 to the escrow company to close the contract
RHC=$500 transfer fees to the RHC

I have written to the buyer to try to get her off the dime but she refuses to answer me. I wonder if she is waiting to be repaid on her cc.