All interested subscribers,
I have had a bad experience with a classified seller I want to share. Additionally, I am concerned that the Wetpixel (WP) response will perpetuate problems like the one I have had. I have expressed my concerns to the Administration and am writing at the suggestion of WP to create a dialogue around these issues.
- On March 7, 2019 a seller listed an item in the Classifieds as follows: "FS: Nauticam NA-502H Underwater Housing for SmallHD 501 / 502 Monitors." The seller's offer to sell included his asking price and shipping terms. " Asking $1100 shipped in US."
- I was the first to respond in the forum on March 10. I accepted the seller's offer on his terms, writing: "I’ll take it. Please contact me to arrange payment and shipping." I did not counter seller's offering price or his other terms.
- I gave seller my name and email address.
- Seller responded by PM, "Hey Mark I can give you a call tomorrow. Let me know a good time."
- I responded "anytime", but seller did not contact me for days. Then the seller sent me a PM stating: "Hey sorry I have been a bit busy and also have a guy locally that is interested in it. Would rather not ship it so I'm just waiting on him to finalize the sale. Will let you know what happens."
- I replied "Sorry but that’s not acceptable. I was the first to accept your offer to sell so we have deal. Despite your offer to ship at your cost, I will pay the shipping. Let’s avoid having the administrator involved and tell me how you want to receive payment. "
- In a private message to seller, so as not to publicly embarrass him, I wrote that if he did not honor his deal I would pursue my legal remedies against him
- Seller did not reply so I did contact the administrator. While I appreciate the admin reviewing the matter, I think his responses are both legally wrong and raise policy questions that will be of concern to subscribers, as I explain below.
THE WP RESPONSE
The Admin informed both parties that:
- Although he is not a lawyer, he believes no contract of sale was formed, because although I accepted the seller's offer on his terms, seller did not accept my acceptance.
- The contract was not in writing.
- It was inappropriate for me to tell the seller I would pursue my legal remedies if he failed to live up to our agreement.
- Wet Pixel won't disclose the contact information of a seller or buyer without the permission of both parties. The administrator did not qualify this statement. Until he does, it should be presumed to apply irrespective of the degree of wrongdoing of a party.
With all sincere due respect to the administrator, his legal position on the formation of a deal is legally incorrect. A contract is formed for the sale of goods when a buyer accepts a seller's offer and the essential terms are present to enforce a deal. Here, the essential terms of price and shipping were established by seller's classified offer and my acceptance on his terms. If I had counter-offered, say for less than the asking price, seller would have HAD to accept MY offer before we had a deal. If he had accepted my counter-offer, then his acceptance would create an agreement between us. But that was not the case. The agreement was formed when I accepted the seller's original offer on his terms. When a party to an agreement does not perform their part of the deal, that is called a breach on contract. Breach of contract is illegal and the party who has been wronged has legal remedies available. For example, a common remedies for values under $25,000 is to file a claim in small claims court.
Also incorrect, contracts for the sale of goods do NOT need to be memorialized in writing, but of course this particular offer and acceptance is memorialized in writing in the WP classified forum. You can read it there.
The Admin does not want to involve WP in the dispute. That's understandable. But in that case should the administrator be gratuitously providing legal conclusions and basing decisions on them?
I accept WP's position that any dispute is between the subscribers. In my case, that means it's up to me to decide whether to pursue my civil remedies against the seller. The seller has my name, email address and phone number, but I don't have his. WP's position is it won't disclose the contact information of a seller or buyer without the permission of both parties, even if one party has the other's information. The seller declines to authorize the release of his contact information to me. Without commenting on what this says about the seller's motivations or character, WP's position effectively precludes me from seeking my legally available remedies against the seller for breach of contract.
Given WP's position on my experience has implications for other scenarios. If a seller breaches an agreement by taking a buyer's money and not shipping the goods, the result would be the same...WP would not provide the seller name. And if a seller ships goods and a buyer doesn't pay or writes a bad check, WP will not give the seller the buyers name. In my opinion, this position facilitates buyers and sellers to breach contracts and/or defraud WP subscribers with impunity. If such bad actors get away with this, they will be encouraged. Buyers and sellers alike will know they can screw someone and the other party can't do anything about it.
Although WP publishes the user names of known scammers, this does nothing whatsoever to help the scam victims, who need the scammers' actual names and contact information in order to have legal recourse. Does WP's user agreement with subscribers promise that their contact information will never be divulged even if they act illegally? I don't know the answer. But if it does assure that, perhaps it should be changed. My suggestion is that the forum classified rules should be clarified and the subscriber agreement should state that subscribers breaking certain of the rules (e.g., when other subscribers are harmed) may have their contact information released. What do you think?
Beyond the WP policy issues I have raised for general discussion, if anyone who sympathizes with my personal experience knows the name of the seller of the Nauticam NA-502H Underwater Housing, please be kind enough to send it to me via PM. Even if WP decides to continue to allow abusive subscribers to get away with illegal activity by protecting their identity, it does not mean that concerned subscribers can't act honorably to try put a stop to it.