'Legally binding contract' or not?
MC_Emily
item on ebay are you entering into a legally binding contract or not. Some
say yes, some say no. Does anyone with a legal background know the correct
answer?
Jaqy
Ali Hopkins
"MC_Emily" <nom...@mail.invalid> wrote in message
news:bfpbi0$bdl$1...@news8.svr.pol.co.uk...
I suspect the problem is that it's never been tested in an English court -
and I make that distinction very carefully.
Ali
Stephen Dibble
news:bfpbl8$hhibt$1...@ID-97728.news.uni-berlin.de...
For auctions by bidding there seem to be three legal ways of interpreting
the formation of the agreement
1) The sale is an auction (conducted by the seller, not eBay). Each bid is a
bid in an auction and, under section 57 of the Sale of Goods Act, can be
withdrawn prior to the end of the sale
2) The sale is not an auction. The page on eBay is an 'invitation to treat',
each bid is an offer and at the end of the sale the seller accepts the
highest offer (or not if they have good reason to). In contract law, an
offer can be withdrawn from at any time prior to acceptance
3) The sale is not an auction. The page on eBay is a conditional offer, and
each bid is a conditional acceptance. Therefore, each bid forms a legally
binding contract. The conditions of the contract is that it only binding on
the seller if at the end of the sale, the buyer is the highest bidder. The
buyer is unconditionally bound.
In case 1&2, the bid is NOT a legally binding contract, whereas in case 3
the bid IS.
However, there is an extra dimension to this matter which came into effect
on April 1st 2003. A change in the law mean that a sale by a trader to a
consumer on eBay is definately a consumer sale.Therefore, the Unfair Terms
in Consumer Contract Regulations come into effect for the contract. Whilst
untested, it is highly likely that a contract term which conditionally binds
the seller, which unconditionally binds the buyer will fail the test of
fairness and therefore will be void ! It is for the courts to decide, but I
strongly suspect that option 3 breaches these regulations and therefore
cannot be binding.
Which is correct is anyones guess. The law does not define auction, only for
'sale by competitive bidding''. It is possible that , whether a sale by
competitive bidding is an auction, is a matter of decision of the
seller.Certainly, it is possible to have a sale by competitive bidding which
is not an auction, for example a 'Mock Auction'.
For 'Buy It Now', the issues are similar. Again three options exist
1) The eBay page is an invitation to treat. The bid is an offer and the
computer acts for the seller in accepting by closing the sale and the
contract is binding.
2) The eBay page is an invitation to treat. The bid is an offer, the sale
ends, but until the seller explicitely accepts the contract is not binding
3) The eBay page is an offer. The bid is a acceptance and the contract is
binding.
Option 2 seems unlikely and options 1 & 3 have the same effect in real
terms. Personally, I think option 1 is the most likely.
At the end of the day, this will need testing in the courts. Whether this
will be by way of a civil dispute following a sale or legal action against a
seller for breach of Unfair Terms in Consumer Contract Regulations I dont
know.
You never know, it may be none of the above. !
(In case your interested, I do have a legal background in consumer
legislation)
Stephen Dibble
"Ali Hopkins" <fn...@dial.pipex.com> wrote in message
news:bfpbl8$hhibt$1...@ID-97728.news.uni-berlin.de...
>
One rider to my last message, Unfair Terms in Consumer Contracts applies to
contracts between traders and consumers where the term is to the detriment
of the consumer. consumer-consumer and trader-trader sales are not regulated
by this legislation !
Ali Hopkins
"Stephen Dibble" <s....@dsl.pipex.com> wrote in message
news:3f2043e8$0$966$cc9e...@news.dial.pipex.com...
> (In case your interested, I do have a legal background in consumer
> legislation)
>
>
Thought you might. :)
The thing I love about lawyers and rabbis is that they all love debating
minutiae and detail. And very valuable it is, too.
Ali
Fuzzyman
Can you withdraw a bid in ebay ? AFAIK you *can* - there is a process
for withdrawing a bid.
In which case....... even under points 1 and 2 where merely making a
bid does not form the contract.... *however* closing the sale with
your bd highest *does* form a contract...... - this means in practise
the result is the same. Even if your bid (unaccepted) doesn't form a
contract - if you are highest at the close a contract is formed.
Even if a bid is a contact - it can be legally and legitimately
rescinded.... which is the same in effect.
Anyway.........
Fuzzyman
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Lansbury
legal binding on a written agreement is the purchase of property (ie a
house etc). All other such agreements are legally binding on a verbal
agreement. So I would say an agreement made over ebay is indeed a
legally binding contract.
--
Lansbury
www.uk-air.net
FAQs for the alt.travel.uk.air newsgroup
Stephen Dibble
news:fjs2ivkr84hi77uga...@4ax.com...
> As far as I am aware the only contract to make a purchase which is only
> legal binding on a written agreement is the purchase of property (ie a
> house etc). All other such agreements are legally binding on a verbal
> agreement. So I would say an agreement made over ebay is indeed a
> legally binding contract.
But for an agreement to be legally binding you mind have agreement - i.e.
Offer and acceptance. If you walk into a shop and see something on the
shelf, this is not an offer, it's an 'invitation to treat'. You pick it up
that take in to the counter and 'offer' to buy it. At this point the seller
can 'accept' or not (thus a seller does not have to sell goods to you). If
he accepts, you tender money (consideration) and voila, a contract is born.
So, the question is, is eBay any different ? If not, then only when the
seller accepts the offer does the contract come into being.
Be careful with the word agreement, agreements are find enough, but what you
want if you intend to enforce anything is a contract !