Problem with a Trade with Leatherman123

[Gadget Guy]

Liveitloud, your absolutely wrong right now. I told him I was going to use a flat rate envelope as I always do and I suggested he does the same to lower shipping costs.. Why bother disagreeing when you don't know the full story? 

Whenever I ship out, I usually always say I will ship out in a flat rate envelope.

Nikko, the new flat rate boxes cost the same as a flat rate envelope, so I would order some to help solve this type of problem. Also, I wasn't kidding about the use of tape. Tape is cheap and why not use a bunch of it to secure your packages. 

[Leatherman123]

Yeah, I actually took a bunch of flat rate packages from the Post Office last night... I will head over to wally world later and buy a whole bunch of shipping tape too!   

[DaveK]

I'm 100% sure that in a court of law, Nikko would have to make this good. I can't see beyond that.

Look at this from another perspective, would you do a trade with Nikko, knowing that if the Post Office screw up, you're out of pocket? I certainly wouldn't. I see no relevance to the fact they agreed to use a particular postal service at all, beyond that they both agreed to accept an element of risk. If the receiver here took legal action, Nikko would have to stump up, that's really clear. I'm not a lawyer, but I have studied a lot of contractual, business law as part of my accountancy qualifications, so I'm not guessing.

I'm bloody glad that's the way it works too, else unscrupulous sellers would simply post out empty envelopes every time without recourse!

Noth - I'm not aware of any method for the buyer to buy insurance. Only that the seller may acquire insurance, and make an additional charge for it. A huge world of difference in my book.

I frequently post stuff without insurance, but I'm under no illusion about who is legally and morally responsible, it's a gamble I take, and I know it's a gamble.

[Flash]

I'm 100% sure that in a court of law, Nikko would have to make this good. I can't see beyond that.

Look at this from another perspective, would you do a trade with Nikko, knowing that if the Post Office screw up, you're out of pocket? I certainly wouldn't. I see no relevance to the fact they agreed to use a particular postal service at all, beyond that they both agreed to accept an element of risk. If the receiver here took legal action, Nikko would have to stump up, that's really clear. I'm not a lawyer, but I have studied a lot of contractual, business law as part of my accountancy qualifications, so I'm not guessing.

I'm bloody glad that's the way it works too, else unscrupulous sellers would simply post out empty envelopes every time without recourse!

Noth - I'm not aware of any method for the buyer to buy insurance. Only that the seller may acquire insurance, and make an additional charge for it. A huge world of difference in my book.

I frequently post stuff without insurance, but I'm under no illusion about who is legally and morally responsible, it's a gamble I take, and I know it's a gamble.

Its really quite simple......I ask Nikko to sell me a knife for £10.

Postage is £2 without insurance or £2.50 with insurance.......I either pay £12.00 and risk loosing it or I pay £12.50 and know that if the PO loose the package, Nikko claims back £22.50... I get my money back and so does Nikko.

Anything other than that is ludicrous (or risky)

I am sure that if requested Nikko would have paid extra for insurance and added that onto the final price....at least thats the way I do it.

Remember.....Caveat emptor 

[Nikos]

Dave I know what you're talking about, but I believe it's just you (or people like you) who go to great lengths to take care of their customers. For example, guys shipping first-class international and reimbursing the full amount to the buyer if the package never arrives. What I believe is more typical is statements like pay for insurance or "We will do everything we can to help recover any lost shipments but cannot be held responsible for lost shipments". You trust the seller to put the good in the envelope (you wouldn't deal with him in the first place otherwise... ), the PO to deliver your packages (they have an interest in doing so well, otherwise people will choose different carriers), and the buyer to report a good or not delivery. Proof of delivery fights against malevolent buyers, insurance/registered delivery fights against PO mishaps, and you can always go with a different seller for the first part. I'm not aware of the legalese behind such cases but to my simple, engineer's mind, if you as a buyer don't trust the seller, don't pay for insurance, and the package goes awol, you're in deep sh*t and that's how it should be.

[Flash]

Just an aside for the UK gang.....



Disputes like this are not criminal....they would fall under "Civil disputes".  To prove the case either way it would be judged under "Balance of probability" as opposed to the criminal "Beyond all reasonable doubt".

In this example Nikko would provide the civil courts with a list of happy customers/traders as well as the damaged envelope as proof that "something" was posted.....and that the damage was made by the PO.  From here the judge would then dexcide if it was more likely a loss by the PO or some other nefarious activity.  In my experience (11 years in Legal wrangling of ALL types ) this case would be thrown out and advice given to ALL parties but no blame ascribed to either person.

Just my 2p's worth 

[DaveK]

I think the point you are missing Nick, is that it's legally (and IMO morally) Nikko's responsibility, not the buyers. At the very point that Nikko decides not to insure the package, he's taking the risk - not the buyer. It is not the buyer's responsibility to insist on insurance - "insurance is there to protect the seller - not the buyer".

If Nikko has express agreement from the buyer that he is specifically absolved of any responsibility (i.e. a signed letter or even an email), then there's mitigation and a court might take that into account. I don't believe that happened, there was just an agreement to use the same "flat rate box" which isn't the same thing.

In your example, if you bought that from ebay, you would get a refund even if you paid only £12, there are a million precedents for it. In your example, Nikko should say "postage is £12.50", and then buy insurance with it.

Whilst I see where you are coming from - since when has naivety been a valid defence?

Nick - just saw your latest post. Something like this would go through the small claims court, and I'm completely sure that the court would award the buyer a complete refund - Nikko would get the bill for costs. No grey areas on this one, there are loads of precedents.

[MedusaOblongata]

Liveitloud, your absolutely wrong right now. I told him I was going to use a flat rate envelope as I always do and I suggested he does the same to lower shipping costs.. Why bother disagreeing when you don't know the full story? 

Whenever I ship out, I usually always say I will ship out in a flat rate envelope.

That's not exactly what your email said. The email said

I plan on shipping out tomorrow via USPS Priority w/ DC

  And the package I sent you, Priority w/DC, was securely shipped in 2 boxes.

For those who keep posting that it's the buyer's responsibility to pay for insurance, this was a trade, so there was no buyer, no seller, and no money involved. Leatherman123 suggested we ship Priority w/DC and I agreed (obviously, we now know, that it was a mistake on both our parts not to insist on insurance). We said nothing about who would be responsible if something didn't make it through the mail. 

[Nikos]

Dave, note that this whole thing is not about buying and selling; it's about two guys swapping on a forum (legalese ignorance disclaimer still valid). Suppose you and I traded some MTs on here, you sent me whatever we agreed in an uninsured box with generous amounts of packing tape, bubble wrap, and the like, and it arrived at my door torn and the tools missing. You would of course go after the postal service, file the relevant claims, etc. Would you still consider yourself liable for the loss and be willing to send me a new (second) tool?

EDIT: Oops... just saw the OP also posted something similar.

[DaveK]

Dave, note that this whole thing is not about buying and selling; it's about two guys swapping on a forum (legalese ignorance disclaimer still valid). Suppose you and I traded some MTs on here, you sent me whatever we agreed in an uninsured box with generous amounts of packing tape, bubble wrap, and the like, and it arrived at my door torn and the tools missing. You would of course go after the postal service, file the relevant claims, etc. Would you still consider yourself liable for the loss and be willing to send me a new (second) tool?

EDIT: Oops... just saw the OP also posted something similar.

Yes, without hesitation - no question. This is why I send items of high value out with DC and insurance as a matter of course. Delivery Confirmation in my experience means it's more likely to get there, and the insurance means that I am reimbursed for any replacement tool or refund I might have to stump up. If the tool couldn't be replaced, I would return whatever I traded for or offer cash to the point that you were happy - I would expect anybody I was trading with to do this for me too.

I'm genuinely surprised that anyone would view this differently tbh as it seems like a moral obligation, not just a legal one. I know from quite a lot of experience on these forums, that most people share this opinion too.

For those who keep posting that it's the buyer's responsibility to pay for insurance, this was a trade, so there was no buyer, no seller, and no money involved. Leatherman123 suggested we ship Priority w/DC and I agreed (obviously, we now know, that it was a mistake on both our parts not to insist on insurance). We said nothing about who would be responsible if something didn't make it through the mail. 

Whether you're paying in cash or goods makes no odds - it's still a contract you're entering into!

BTW MedusaOblongata, I'm really glad you brought this up here - it seems like the issue isn't clear amongst our members at all - maybe this discussion will introduce some "rules" for future trades.

[MultiMat]

There is also the issue of cost of insurance being WIDELY different in cost from country to country. In Australia it costs $5 extra to send registered. I send my trades  registered as it is not a huge difference in cost. For me in a trade my number one priority is my mate gets what I said I will send him. To that end I pack the tool/s as securely as possible often reusing boxes I have already received  tools in & I send registered because it adds security & not too much expense.For ME it is a point of honor/trust that I uphold my end of a deal. Send secure(properly packed) & I pay for Registration. If it gets lost I WILL SORT IT.

[Medic82]

The trade I did with Mat cost me 24$ to ship to Australia, if I where to send it with insurance it would have sett me back 55$. That’s a BIG price difference.

[Mike 56]

This is just me but i insure any thing i ship that's of any value. I don't want to have any problems with anyone or have any bad blood with anyone on any of the forums i frequent. I refuese to loose any friends over money. My two cents.
Mike

[Grant Lamontagne]

Dave, note that this whole thing is not about buying and selling; it's about two guys swapping on a forum (legalese ignorance disclaimer still valid). Suppose you and I traded some MTs on here, you sent me whatever we agreed in an uninsured box with generous amounts of packing tape, bubble wrap, and the like, and it arrived at my door torn and the tools missing. You would of course go after the postal service, file the relevant claims, etc. Would you still consider yourself liable for the loss and be willing to send me a new (second) tool?

EDIT: Oops... just saw the OP also posted something similar.

Yes, without hesitation - no question. This is why I send items of high value out with DC and insurance as a matter of course. Delivery Confirmation in my experience means it's more likely to get there, and the insurance means that I am reimbursed for any replacement tool or refund I might have to stump up. If the tool couldn't be replaced, I would return whatever I traded for or offer cash to the point that you were happy - I would expect anybody I was trading with to do this for me too.

I'm genuinely surprised that anyone would view this differently tbh as it seems like a moral obligation, not just a legal one. I know from quite a lot of experience on these forums, that most people share this opinion too.

For those who keep posting that it's the buyer's responsibility to pay for insurance, this was a trade, so there was no buyer, no seller, and no money involved. Leatherman123 suggested we ship Priority w/DC and I agreed (obviously, we now know, that it was a mistake on both our parts not to insist on insurance). We said nothing about who would be responsible if something didn't make it through the mail. 

Whether you're paying in cash or goods makes no odds - it's still a contract you're entering into!

BTW MedusaOblongata, I'm really glad you brought this up here - it seems like the issue isn't clear amongst our members at all - maybe this discussion will introduce some "rules" for future trades.

I have said before that we are not the Trade Police, and I have no desire to become the Trade Judge, Trade Jury or Trade Executioner either.  While I see this discussion as healthy and educational, I can see us pointing to it as an example in the future and making recommendations based on the opinions and facts presented here.  However it is now, and always will be the responsibility of each and every member here to govern themselves and their trades, and make their own choices in any activities they do here with other members.  These things can and will happen- I for one always ship with insurance simply because $100 worth of insurance is automatically applied to any package I send out of the country.  When I buy, or am getting something in a trade, I don't specify for insurance, simply because I'm not concerned about it.

This leads me to a recent (last week actually!) event that happened to me that was somewhat similar.  I purchased a few tools from another member here (he will remain nameless until or unless he decides to chime in) and the package was damaged on arrival, and one of the tools was missing.  In this particular case the tool was not really significant, and I think ran all of about $10, so it wasn't a great loss, and this might make the difference in this case- remember, all circumstances are different.  I have literally sent and/or received hundreds of packages from many different countries all over the world, and this is the first time this has ever happened to me, but remember that I have saved $1.50 (or whatever it is) on all of the previous packages that I opted out of shipping on.  $1.50x 100 packages is significantly more than the tool I am missing was worth, and also significantly more than the Surge in question is worth.

So, looking back at the original issue, and given the number of trades that Nikko does (not taking sides, just offering a perspective) it could have been worth it.... and it could have very easily happened the other way around.

Who is at fault?  I dunno- I don't know all the info, I wasn't there to inspect the packages leaving the various members' hands, I didn't follow them through the PO service, so I really can't say what happened, who is right, who is wrong or who is responsible.  What I can say is that everyone should seriously consider these issues when making trades, and that members should try to work things out between themselves whenever possible, because as you've no doubt seen, when you get everyone chiming in, the process just gets more convoluted!

Def

[MedusaOblongata]

Who is at fault?  I dunno- I don't know all the info, I wasn't there to inspect the packages leaving the various members' hands, I didn't follow them through the PO service, so I really can't say what happened, who is right, who is wrong or who is responsible.

What happened was that Leatherman123 mailed the LM Surge, along with several other items in a Priority Flat Rate Envelope, which was torn in shipping, and when it arrived the Surge was not in the envelope. Other than the self sealing closure, the envelope was not reinforced in any other way. That is what happened, and no one has questioned or disputed that. As far as who is responsible, different people seem to have different opinions on that...

I understand you not wanting your forum to "officially" set rules that members must follow, as all deals are arranged and conducted between individuals; but members of a forum will sometimes decide on their own to agree to a certain set of guidelines, to reduce confusion and disappointment down the line.

[Flash]

I think the point you are missing Nick, is that it's legally (and IMO morally) Nikko's responsibility, not the buyers. At the very point that Nikko decides not to insure the package, he's taking the risk - not the buyer. It is not the buyer's responsibility to insist on insurance - "insurance is there to protect the seller - not the buyer".

If Nikko has express agreement from the buyer that he is specifically absolved of any responsibility (i.e. a signed letter or even an email), then there's mitigation and a court might take that into account. I don't believe that happened, there was just an agreement to use the same "flat rate box" which isn't the same thing.

In your example, if you bought that from ebay, you would get a refund even if you paid only £12, there are a million precedents for it. In your example, Nikko should say "postage is £12.50", and then buy insurance with it.

Whilst I see where you are coming from - since when has naivety been a valid defence?

Nick - just saw your latest post. Something like this would go through the small claims court, and I'm completely sure that the court would award the buyer a complete refund - Nikko would get the bill for costs. No grey areas on this one, there are loads of precedents.

Fact...


"is that it's legally (and IMO morally) Nikko's responsibility"  No - No one is responsible for a trade where the "rules" were not set out, this was a gentlemans agreement and therefore unenforceable in law (UK law at least)

You state..."It is not the buyer's responsibility to insist on insurance - "insurance is there to protect the seller - not the buyer".  Where is this set out in law other than as you originally said its a quote from some ebay seller....this is not a valid argument as it did not come from a valid source of law.

"I'm completely sure that the court would award the buyer a complete refund".....where are the precedents you speak of as I for one (having been to civil courts many times) would stake my mortgage on the courts dismissing the case.

"I'm genuinely surprised that anyone would view this differently tbh as it seems like a moral obligation, not just a legal one. I know from quite a lot of experience on these forums, that most people share this opinion too."....I reckon the fact that this thread is so long is testament to the fact that "Most" people are divided and don't agree one way or the other....so until "most" people comment a sweeping generalisation like this can not be made.

Most people agree with me 

I know I have had to send something to a member 3 times as it kept getting lost....I eventually decided to pay for signed delivery and it landed as soon as I had the proof it had.  BUT that was my call.....no one else's.

Ah well.....back to tools

[Nikos]

What I'll keep from this whole thread is:
a. Use copious amounts of tape and a box, when possible/applicable.
b. Use some sort (or a combination) of dc/registered/insured shipping.
c. Do some trades with Dave.

Honestly, I'm almost always on the buying side. I first sold/traded stuff on these forums and knowing the state of our PO I always used at least some bubble wrap and registered shipping. I don't know what I'd do if one of those shipments went awry; probably I'd try to reimburse the buyer, but that's just me and my old-school-ish code of conduct. I've been a victim to lost shipments more than once and always held myself responsible if I hadn't asked for insurance (or other pluses). If what Dave says is true (i.e. it's the seller who's responsible), I should revisit quite a few trades...

[Flash]

What I'll keep from this whole thread is:
a. Use copious amounts of tape and a box, when possible/applicable.
b. Use some sort (or a combination) of dc/registered/insured shipping.
c. Do some trades with Dave.

Agreed.....

Also, Gadget Guy is a great guy and although Dave and I agree on tools (he always was a smart guy) we don't always agree on everything (although we mostly do and have done for over 2 years)

Dave.....I still love you babe 

[hawkchucker]

I actually feel for both of them in this. Seeing both sides of an issue does make this seem like a no brainer.... Take it out on the po. Nikko did send it, but could have been better about sealing the package. I for onestill have a package missing that went to Britan. I sent a Spydie to Ben and it somehow got lost at customs. I still have no Idea how to clean that mess up, but now that I am back, I guess I will figure something out.

[Nikos]

Go postal. The new mohawk should help in the intimidation field...

[hawkchucker]

I dont get it. He got nothing from customs, and I know it left the country. Hopefully whomever got it uses it well, and then burns in hell.

[Benner]

I dont get it. He got nothing from customs, and I know it left the country. Hopefully whomever got it uses it well, and then burns in hell.

 

[max6166]

I don't know if it is the same in every country, but postal insurance is usually paid to the sender, not the recipient. That is why most people say that insurance is intended to protect the sender.

This does not prevent senders from creating their own completely different terms and conditions, however.

Many of the sellers who wave liability if insurance is not purchased actually provide their own form of insurance. Though they may use the money to purchase real postal insurance, some may instead use it build up their own private "insurance fund", or they may even simply pocket the money and pay out of pocket whenever something goes missing.

This issue has sharply divided eBay members for years. Even here, you can see that people have very different opinions.

At the end of the day, the only terms you can count on are those which were specifically stated prior to the transaction. This case is a little more complicated, but in general, one should specifically ask beforehand whom is liable should the item become lost if it is of great concern to you. Saves a lot of grief afterward.

[Crouton]

Where were you guys a year ago when I got totally hosed in a bad trade ?  see this thread http://forum.multitool.org/index.php/topic,5280.0.html  That trade was quite different, my trader didn't even bother to mail out a package.  I was also trading for a Surge which ironically I never got on with.

Would have been nice to at least get some condolences

Maybe we should have a set of informal MT.org "Square Trade" standards.  That way if we insist on trading to these standards then we don't have to worry about lost items in the mail, as the insurance would cover the lost item(s) if lost or damaged.

Sure it would cost more but it would take all the worry out of it, and all the stress when things do go wrong.  It would tend to cut down trades beyond country borders but if we all know that going into a trade we can decide whether it's worth it for us.


Square trade standards as I see them would be:
1)  Both parties should present pictures of the item(s), with a handwritten piece of paper in the picture with multitool.org and the date.  This way potential buyers can judge item quality as well as that the item actually exists.  This last one should not ever be a problem for forum regulars but it will partially address the concerns regarding non-established traders.

2) Terms should be specifically agreed to. and documented.

3)  Items should be packed and shipped securely with insurance.

3)  Feedback should be expected from both parties as a general rule, similar to Ebay user ratings.

I personally love to trade, it takes all the buyers guilt out of the equation.  Anything we can do to reduce the stress of trade disputes we should.


From a personal standpoint I would feel personally responsible in a situation such as this one.  I once sent off an item in a trade on mt.org and my item, while shipped securely did not reach it's destination.  I wanted to ship back at my expense the item that I received in trade to the gentleman but he would not let me.  To this day I do not feel right about having kept what I received.  In retrospect i should have shipped the item insured.

BTW If anyone ever comes across an Old Wave and/or a Pulse with the name "Urbanczyk" engraved on them, I would happily buy them back, or heaven forbid trade for them

[DaveK]

Guys,

You can all dispute this as much as you like. The law is really clear, at least in the UK. Nick - if I wasn't sure, I wouldn't say that I was. I'm afraid that you are wrong here, most tellingly when you say:

No - No one is responsible for a trade where the "rules" were not set out, this was a gentlemans agreement and therefore unenforceable in law (UK law at least)

This simply isn't true mate. In the absence of waivers that could be produced as mitigation in evidence, fulfilment of the transaction includes safe delivery. It's basic contract law for which there is tons of precedence, and it isn't optional. I practised as an accountant for more than 10 years and have had experience of this on a number of occasions, and I am correct.

Your statement that I made a "sweeping generalisation" is frankly offensive to me. I said that in my experience, people I have traded with share my point of view on this and I stand by it. I have also received PMs since this debate began, and not one of them yet has disagreed. I will not trade with people who will not guarantee to fulfil their side of the bargain, that would be lunacy, and I'll not be trading with anybody who won't do that in the future.

There's plenty of info out there on the net, or you can call your local Citizen's Advice Bureau or whatever. I've had enough of the rubbish on this though and shan't be adding anything more.

[Flash]

Guys,

You can all dispute this as much as you like. The law is really clear, at least in the UK. Nick - if I wasn't sure, I wouldn't say that I was. I'm afraid that you are wrong here, most tellingly when you say:

No - No one is responsible for a trade where the "rules" were not set out, this was a gentlemans agreement and therefore unenforceable in law (UK law at least)

This simply isn't true mate. In the absence of waivers that could be produced as mitigation in evidence, fulfilment of the transaction includes safe delivery. It's basic contract law for which there is tons of precedence, and it isn't optional. I practised as an accountant for more than 10 years and have had experience of this on a number of occasions, and I am correct.

Your statement that I made a "sweeping generalisation" is frankly offensive to me. I said that in my experience, people I have traded with share my point of view on this and I stand by it. I have also received PMs since this debate began, and not one of them yet has disagreed. I will not trade with people who will not guarantee to fulfil their side of the bargain, that would be lunacy, and I'll not be trading with anybody who won't do that in the future.

There's plenty of info out there on the net, or you can call your local Citizen's Advice Bureau or whatever. I've had enough of the rubbish on this though and shan't be adding anything more.

err Dave

You talk about "In the absence of waivers" well one could argue in the "absence of a contract", or "absence of contract of insurance for postage"....so this makes it a moot point.

As for being offended, I meant no offence but just to be sure you said...

"I know from quite a lot of experience on these forums, that most people share this opinion too"

now you have changed it to

"I said that in my experience, people I have traded with share my point of view on this"...you must agree that you have changed your original statement.

I was merely commenting on your "most people"....now you say "people I have traded with"......they are two different things.  If now you mean "most people you have traded with" then I can not comment on that as I don't know who it is, but I can only believe what you say as I know you are a truthful, honest, stand up guy

Anyway, we digress....we obviously think different things....I respect your point of view but I stick to my gut instinct borne from many court cases over 11 years (including criminal, civil, small claims and county).

I meant no offence....

[Flash]

I will not trade with people who will not guarantee to fulfil their side of the bargain, that would be lunacy, and I'll not be trading with anybody who won't do that in the future.

Fully agree with that though 

[DaveK]

"I know from quite a lot of experience on these forums, that most people share this opinion too"

now you have changed it to

"I said that in my experience, people I have traded with share my point of view on this"...you must agree that you have changed your original statement.

Oh come on. If you want to play semantics, you carry on. I'm sure it was clear what I meant. As it happens, the increasing number of unsolicited PMs I've now received on this subject actually do bear out that most people agree.

As you correctly pointed out earlier, criminal law has squat to do with this. Business / contract law however does, and I have qualifications in it, as well as a great deal of real life experience, so I'll trust that in this matter.

I can add no more to this, and this time I shall really be drawing a line under it.

[J-sews]

Come come now gents. Its obvious that neither side here is going to convince the other. Therefore the time is fast approaching to "agree to disagree" and let it drop.

[Pacu]

I'm sure most of the regulars on here can hammer out any differences we have in having a trade go wrong..due to postal error, packing error, or any of the many "other" problems that can occur.
I think this thread has had some really good information and teaches us how to avoid some of the hassles of shipping domestic or abroad.