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Classified policies scammers contract failure to perform abuses identities rules agreements

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#1 UW3D

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Posted 16 March 2019 - 12:40 PM

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.

 

THE FACTS

  • 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.

THE ISSUES

 

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.



#2 adamhanlon

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Posted 16 March 2019 - 01:37 PM

Just to add my and Wetpixel's comments/clarification to this:

 

1. In the case of fraudulent behavior (i.e. when one member has intentionally defrauded another and hence one party has incurred a financial loss), Wetpixel will provide the wronged party, along with law enforcement, with whatever information they require. In fact, we even publicly publish information in the list of known scammers as mentioned above. It is entirely incorrect to assert that we would not do so. I note that the OP has never asked me to qualify this, so is extrapolating incorrectly. I should also state that the OP voluntarily provided his contact details to the seller. 

2. I have no dispute with there being a written record of the events around this and have never stated this to be the case, but I am dubious about whether a contract exists. Hence I do not believe that there is a written record of any form of contract. A contract would imply both parties agreeing to a sale - which in this case, the seller did not do.
3. As far as I am aware, either party in a transaction can withdraw at any point from a transaction, as long as there is no financial or consequential loss incurred by the other party. I cannot see a situation wherein sellers or buyers can be held to a contract when they advertise goods for sale or agree to buy them and then change their minds.

4. The OP mentions in the post above that he has been "harmed" by the sale not proceeding. I should point out that he has not mentioned any harm to date in our correspondence. 

5. In terms of my asserting that it is "inappropriate" for him to threaten legal action in this instance, below is the relevant text that was sent to both parties.

 

 


"Practically, Wetpixel is a community, and like all such, people will vary as to how they interact with each other. The Classifieds section of the forum is simply a place for members of the community to exchange gear, not a “shop.” It should be stressed that Wetpixel does not derive any income from it, nor is there any fee for its use. Wetpixel does not and cannot be responsible in any way for transactions that occur (or do not occur) in private between community members. Furthermore, I think that it is very sad to see community members threatening legal action over issues like this. While I can understand disappointment in being unable to conclude a transaction,  as far as I am aware, neither party has incurred any form of financial or consequential loss which would warrant Wetpixel staff involvement in this or any legal action."
 
6. I am sympathetic to the buyer's plight. He quite obviously was very keen to purchase the item in question and perhaps the seller did not communicate with him as well as he should of. 
7. Wetpixel has never and will never allow abusive or illegal behavior.
8. As mentioned above, I am not a lawyer, nor have I offered any legal advice. I have offered my understanding of the way contract law would be applied in connection with Classified sales on this forum. I would welcome those of you with formal legal training in our community to voice your opinions as to whether I am correct or not
 
Adam

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#3 tursiops

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Posted 16 March 2019 - 01:58 PM

I appreciate seeing this information. I'll be sure not to sell anything to UW3D.



#4 UW3D

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Posted 17 March 2019 - 05:35 AM

Adam,

 

I appreciate your participation in this dialogue. I believe the crux of our difference of opinion about whether there has been a breach of contract may turn on the applicable law. You are apparently in the UK.  The transaction in question is in the United States, and because I excepted the sellers offer in California, it is governed by California law.  Under both US and California law, the contract is formed when a seller makes an offer of sale and the buyer accepts the offer on the seller’s terms.  If this is confirmed to your satisfaction, that should clarify that the seller has breached his contract in an unlawful manner in his country. 

 

Since this is an international forum, I can understand that it’s difficult to form a policy for actions may preach the law in one country, but not another.

 

 Thank you also for clarifying what Wet Pixel’s policy is with respect to deliberate and fraudulent  breaches of contract, e.g., by scammers. It’s entirely possible that the seller in this case is unwittingly violating the law, because he does not understand his obligation to complete a sale once a seller except his offer to sell.  Is it your thinking the names should be revealed only in the case of fraud, but not in the case of a breach of contract where no fraudulent intent existed? 

 

To clarify, when I spoke of being harmed by the seller’s actions, I’m speaking of being legally harmed as a matter of US contract law. When a seller refuses to perform the seller’s obligation, the buyer is harmed by the difference in price between the price the seller was offering to sell for and what the buyer can buy the item for in the open market. Seller was offering to sell a

new and unused item for $500 less than retail store value. The “harm” is $500.



#5 dreifish

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Posted 17 March 2019 - 06:24 AM

UW3D -- there's no formal legal offer to contract at play here, merely an indication to enter into preliminary negotiations. Courts generally consider an advertisement as an invitation to enter negotiations, not a definite offer that can create a contract. If you're going to try to impress us with your legal analysis, at least get it right...

 

I don't think the for sale post can be construed as showing present intent to form a contract. You knew (or had reason to know) that the general practice on forum classified boards is for perspective buyers and sellers to negotiate the details of the sale, shipping, etc. before entering into a formal agreement. 

 

Furthermore, breach of contract is a civil cause of action and Wetpixel is under no obligation to share any details with you regarding other issues. Indeed, I think having a policy that allows sharing of user details in such a circumstance is ill-advised. It would mean  the administrators have to evaluate each case and decide if the person asking for personal information is telling the truth about the situation or is fabricating the whole thing. Much better to categorically not share private information about users absent a valid subpoena. 



#6 jahjahwarrior

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Posted 17 March 2019 - 04:09 PM

Uw3d, you are acting silly.

Granted, I really hate when I call dibs and then someone else gets the item, but your response is a little over the top.

Don't waste moderator time with complaints like this.

Good luck on finding a new camera and housing, hope you come across another good deal. In my case Im looking for a jacuzzi and I've had 2 people sell to someone else after making arrangements with me, my buddy with a trailer is getting tired of me!

#7 UW3D

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Posted 18 March 2019 - 09:08 AM

Eagle Ray correctly identifies the general rule that advertisements don't form contracts, but he fails to recognize the exception to the rule. For anyone interested, I refer to this lay article describing when an advertisement is sufficiently definite to form a contract. https://www.legalmat...rtisements.html.

 

Eagle Ray opines that there was no present intent to form a contract with this particular advertisement by wraptor, because the general practice is to negotiate the details of the sale, shipping, etc. before entering into a formal agreement. But this advertisement specified those details. There was nothing left to negotiate.

 

Thanks to Moray Eel for his comments too. Based on the minimal responses here, I do think I am wasting my time and that is indeed silly. Moray Eel, it's your call about the hot tub, but if you feel you had a deal with someone, I encourage you not to take that treatment lying down.



#8 tursiops

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Posted 18 March 2019 - 09:40 AM

Eagle Ray correctly identifies the general rule that advertisements don't form contracts, but he fails to recognize the exception to the rule. For anyone interested, I refer to this lay article describing when an advertisement is sufficiently definite to form a contract. https://www.legalmat...rtisements.html.

 

Eagle Ray opines that there was no present intent to form a contract with this particular advertisement by wraptor, because the general practice is to negotiate the details of the sale, shipping, etc. before entering into a formal agreement. But this advertisement specified those details. There was nothing left to negotiate.

 

Thanks to Moray Eel for his comments too. Based on the minimal responses here, I do think I am wasting my time and that is indeed silly. Moray Eel, it's your call about the hot tub, but if you feel you had a deal with someone, I encourage you not to take that treatment lying down.

If you are going to refer to the posts of others, you might actually use their screen name instead of their avatar-critter ID (which are not unique to an individual).....or should I call you triggerfish instead of UW3D?



#9 adamhanlon

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Posted 18 March 2019 - 12:46 PM

I think the clarification that I was seeking on this is contained in the article the OP has posted:

 

"Can The Advertiser Withdraw an Offer If An Advertisement Is Considered An Offer?

 
An offer is revocable unless the advertiser has already received a benefit or unless the other party has already acted in reliance upon the offer. For example, an advertisement which promises medical treatment for cancer patients will be revocable unless the advertiser has already received payment from the patient. Alternatively, the offer cannot be revoked if the patient has moved in from across the country in order to take advantage of the offer."
 
Assuming the seller's advertisement is considered an offer (and this would be moot until proven in court), it is safe to say that the seller has withdrawn his offer. Payment was not made, and as far as it is possible to ascertain, the OP has not listed any specific actions that he has taken in reliance of any offer.
 
Practically, Wetpixel's stance is that unless both parties agree to a sale and one or other party has either paid for goods, or goods have been shipped, buyers and sellers can back out of the sale.

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#10 UW3D

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Posted 18 March 2019 - 09:02 PM

As of this morning when I wrote my post, wraptor was in fact still offering the item for sale on Wetpixel.

 

i appologize to the commenter with the classification eagle ray that I could not locate his screen name as I wished to do.



#11 ChrisRoss

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Posted 20 March 2019 - 11:51 PM

I would think there is also an issue with Privacy laws, I'm not entirely familiar with the details of privacy law in different countries, but we do undergo privacy training at work (a US based multinational company)  and it's a definite no-no to release personal information about another party which would include things such as their full name address and phone number.  How do the admins know for example that the complainant won't start stalking the other party?  I'm not saying for a second this is the case, but the admins just don't know and would create an additional burden of the admins if they were to release information.  Of course the way around this would be a subpoena requiring release of information

 

I would think WP would risk legal exposure if they released those details and are right to withhold.  Not least because they would need to adjudicate on the dispute which is what they are trying to avoid.   The Classifieds forum is quite a useful service and if the admins keep getting dragged into disputes this it may place the forum at risk.



#12 UW3D

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Posted 21 March 2019 - 09:38 AM

All valid points Chris. Adam reports that the admins do release information when they determine there has been fraud, so they do make legal calls at times. I am suggesting some clearer rules on classified practices, coupled with a subscriber's agreement stating that when the admins determine the rules have clearly been violated, the subscribers agree in advance to the release of specified personal information. Thus, the admins would no longer have to interpret the law (as they may be doing now in the case of suspected  fraud?), which is certainly fraught with risk. Rather, the admins would be able to interpret and apply Wetpixel's own rules in their own discretion.  I simply out the concept out there for debate.  

 

The Wetpixel classified rules I propose for discussion are:

 

1) If a seller offers an item for a fixed price and terms, and a buyer accepts the seller's sale offer on the seller's terms with no counter offer, or if the buyer accepts the seller's sales offer after a negotiation over terms, the seller is committed to sell and deliver upon payment.

 

2) If a buyer accepts a seller's offer to sell an item on definite terms, or if a buyer agrees to purchase an item after a negotiation with seller over terms, the buyer is committed to buy and pay. 

 

3) If either a seller or buyer does not perform a commitment so as to violate the WP rules, they agree in the subscriber's agreement that their specified information may be released to the other party in the administrators' discretion.



#13 adamhanlon

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Posted 21 March 2019 - 01:03 PM

For clarification:

 

1. Wetpixel is a membership community. Hence, Wetpixel is made up of members, not subscribers. A subscription implies the payment of a regular fee or another form of obligation. Wetpixel membership is not subscription based.
 
2. Wetpixel admins act when there are de facto instances of fraud. They have access to tools that allow them to determine this accurately. They have not and do not release personal details in cases of "suspected fraud."  
 
3. The OP's issues are related to a failed sale which was not in any way fraudulent. To suggest any form of linkage between his experience and fraudulent behavior is disingenuous.
 
4. There is no need, requirement or demand to change the common sense guidelines that have governed Classifieds sales on the forum since its inception. I have noted these in my post above. There have been many thousands of successful and mutually beneficial sales within the forum following these guidelines. 
 
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#14 dreifish

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Posted 21 March 2019 - 09:30 PM

Eagle Ray correctly identifies the general rule that advertisements don't form contracts, but he fails to recognize the exception to the rule. For anyone interested, I refer to this lay article describing when an advertisement is sufficiently definite to form a contract. https://www.legalmat...rtisements.html.

 

Eagle Ray opines that there was no present intent to form a contract with this particular advertisement by wraptor, because the general practice is to negotiate the details of the sale, shipping, etc. before entering into a formal agreement. But this advertisement specified those details. There was nothing left to negotiate.

 

Thanks to Moray Eel for his comments too. Based on the minimal responses here, I do think I am wasting my time and that is indeed silly. Moray Eel, it's your call about the hot tub, but if you feel you had a deal with someone, I encourage you not to take that treatment lying down.

 

Seriously? Do we need to get into citing specific case law in California? The exemption to the general rule you're relying on requires not merely definite terms, but also, to quote the article you linked, that the offer "is communicated to a specific person or persons (usually limited group of people)." (emphasis added). There are plenty of cases out there holding that advertisements in a newspaper or catalogue in general circulation don't meet this requirement because they are not directed to a limited group of people and theoretically could be accepted by more people than there is inventory to sell. The situation with a forum post is analogous. You'd have a much stronger claim if you had received the offer in a private message from the seller, but those aren't the circumstances here. For all you know, someone could have contacted the seller by private message, email, telephone or some other means before you did, or multiple people could've "accepted the offer" simultaneously. When an advertisement is directed to the public at large and not a limited group of people, you'd have a hard time convincing a court that the advertiser intended to enter a contract as opposed to inviting people to make a deal. 

 

The exemption further requires that "the circumstances surrounding the publication show that the advertiser has the intent to enter into a contract." and the article goes on to explain that "the main factor that most courts look at is whether the parties had the intent to assume legal responsibility of entering into a contract. However, different courts have different ways in dealing with this issue." Given the general understanding of the community about how online classified posts work, I think you'd have a very hard time showing that the seller had an intent to enter a contract with the first taker just based on a forum post. The seller could very well have had reservations about the first responder's ability to pay, ability to pay on time, etc. that would weigh against construing such an intent to contract merely on the basis of a post that contained the price. 



#15 oneyellowtang

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Posted 24 March 2019 - 09:48 AM

This is a truly mind-numbing conversation... and a complete exercise in futility.

When I sell gear I usually advertise it in 2-3 places at once (including, on occasion, on display at a physical community garage sale). 

UW3D - this was an ad to sell, not a commitment to sell. In the state of CA (and many other states) the owner could have easily said they changed their mind and they don't want to sell the gear, or even they don't want to sell the gear to you (and because they know virtually nothing about you [other than you are coming across as annoying]) this is not discriminatory (which can only be argued if the basis is on race, religion, gender, color or national origin).

Just.stop. Otherwise no one will want to deal with you in this forum.



#16 TimG

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Posted 24 March 2019 - 10:31 AM

Can I suggest it's time we draw a line under this? Folks have had had their say and Adam has set out the WP policy.

 

One of the great things, I think, about WP is that almost never does anyone fall out with anyone, people are respectful, thoughtful, helpful and generous of their time and knowledge.

 

Please let's keep it like that.......


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