Consumer Law, Warranties "As is" disclaimer on Ebay - what does it cover ?

[kbarb]

My jurisdiction is: California

I bought a cell phone on Ebay from an individual and it seems that it is defective. The seller wrote a description, and tacked on "as is" at the end - something very common now on Ebay sales as generic protection.

Does an "as is" statement provided by an individual selling an item - in this case on Ebay - completely protect them from all responsibility for known defects?

Is it not implied that items such as this are in general working order unless stated otherwise - especially if the seller has been an owner and user of the item? (This being different than a situation where a seller is just reselling items without any experience with them through personal use.)

If I am wrong, then a crook could make a good business selling known defective items, stating "as is", and using that as protection against returns and refunds.

To me this seems like fraud for non-disclosure.

I don't have an unresolved issue yet, and will take it up w/ Ebay if so, but I just need a general clarification on "as is" w/ respect to non merchant sales :
What constitutes fraud, and what can be disclaimed with "as is" .

Thanks for you're advice !

 

[PJ_Weber]

Is it not implied that items such as this are in general working order unless stated otherwise - especially if the seller has been an owner and user of the item?

You would be a fool to assume anything like that on eBay

 

[kbarb]

We're not getting off to a good start - you're calling me a fool from the outset

I'm asking this from a legal point of view of course, not as a matter of prudence.

 

[dee_dub]

If the seller is a merchant, there may be an implied warranty of merchantability - that the item will do what its supposed to do. The question is, was your seller a merchant? A merchant is someone who deals regularly in that sort of item. If you bought from an individual, not a business, your seller was probably a private party, not a merchant. As such, you're probably SOL.

Also consider the price you paid - if you spent $5 to get an iPhone, you arguably got goods of a quality you could reasonably expect.

 

[kbarb]

Ok, let me ask the question in a simpler fashion. I'm trying just to ask a legal/theoretical question, not a "how to pursue this" type of thing.

If a private seller sells an item with prior knowledge of significant functional defect (s), does not disclose this, but has tacked on "as is" in the advertisement, does the "as is" clause prevent any pursuit of fraud ?

"Prior knowledge" being key here of course.

(Proving any of this is a different issue which I'm not addressing here.)

Many thanks

 

[dee_dub]

"As is" is essentially irrelevant to the question of fraud. The fraud question really is, did they represent that it was in good working condition or anything to that effect? If they didn't, there's no fraud.

"As is" just means, "AND you can't return it for whatever defects there might be". It doesn't say whether or not there are defects.

 

[PJ_Weber]

We're not getting off to a good start - you're calling me a fool from the outset

I did not call you a fool, I said that you would be a fool to
assume the idea stated. Never assume

I have been buying and selling on eBay for many years, with over
5000 positive feedback, and no negative. The area in which I deal
has no need for the product working, the item just is what it is

I would be highly suspicious of buying an item such as a
cell phone from anyone but a distributor

The motto of eBay is Caveat Emptor - Let the buyer beware

 

[kbarb]

"As is" is essentially irrelevant to the question of fraud. The fraud question really is, did they represent that it was in good working condition or anything to that effect? If they didn't, there's no fraud.

"As is" just means, "AND you can't return it for whatever defects there might be". It doesn't say whether or not there are defects.

Ok, thanks, this is more of the clarification I was looking for.
A bit unexpected though.

I ran it by my brother who has been an attorney for quite some years, and both of us are of the opiniion that if the seller actually knew that something was defective, but didn't disclose it, the "as is" clause wouldn't get them off the hook. I know another long time Ebay seller who thinks along the same lines - an ex NY cop actually

We're of the opinion that it would apply, for instance, if the seller had no knowledge, good or bad, for the item being sold (e.g. the seller was just purchasing and reselling goods), or if the seller had use of it, but no knowledge of a particular function or characteristic of the item.

But you're basically saying that when using an "as is" clause, a seller has no duty to disclose any knowledge of deficiencies even if those deficiencies are rendering the item useless.

That's a surprise to me, but then again, you guys are the legal minds.

Hmmm.
So a crook could just go down to some big box stores, what have you, buy only the defective returns, sell them with "as is", month after month, and Ebay couldn't have any reason to discipline them - as long as they never stated "it works the way you expect."
In fact, Ebay would really be inclined to admonish the buyer it would seem, and leave the seller alone. Somehow I really have a hard time wrapping my head around that one. Ah, well, the mysteries of the universe.

 

[dee_dub]

Again, it's not the "as is" that gets him off the hook. Forget about "as is". What gets him off the hook is the fact that he makes no representations that the item is in good working condition. "As is" isn't ANY kind of representation about the item's condition. (Unless it's negative by implication.)

Moreover, as I said above, if a seller did what you're describing regularly, he'd be a merchant, and the goods would then be subject to an implied warranty of merchantability, i.e. that the items were good for what he was selling them for. So then he WOULD get dinged.

If he does it a couple times, he's just a douchebag taking advantage of people. Unethical, yes. Illegal, no.

I agree, it's rotten.

Sounds like you have pretty good legal minds close at hand. Feel free to take their opinion over the words of some strangers on the internet. However, go straight to the horse's mouth if you like. eBay's returns policies refer to "items not as described". Not "defective", not "crappy", not "unworking". The key is whether the item matches its description. If the seller says it works, and it doesn't, then you can return it with eBay's blessing. If he's mum, then caveat emptor applies, and you're stuck with it.

 

[kbarb]

[ I made a couple edits right when you were posting, but I don't think it signifcantly affects your interpretation. ]

Again, it's not the "as is" that gets him off the hook. Forget about "as is". What gets him off the hook is the fact that he makes no representations that the item is in good working condition. "As is" isn't ANY kind of representation about the item's condition. (Unless it's negative by implication.)

Ok, thanks for your feedback and opinion. I'm seeing your point . . . trying to banish the connection in my brain

It is going to be interesting if I end up with Ebay Dispute Resolution, or whatever it's called. It's not a tremendous amount of money actually.

Indeed there was no statement that the item works, as many times there is not - just a description of specs and so on. The seller relied on the buyers expectation that "it works" because that's why it's being sold without being given reason to believe otherwise. Often sellers say "for parts only", or make clear the faults because their reputation is at stake.

People don't always think, "I better ask him if it works, because he didn't say anything about that," myself included in this instance.

Not to put too fine a point on it, but "As is" sort of begs the question, "Does it work" - the negative implication you speak of above.
But if there was no "As is", then you really don't think to ask, as many times I don't if not a lot of money is involved.

I haven't given you all the details here, but in my particular case it's pretty obvious (now) the seller knew the device was defective, thus my post here - so it will be interesting to see how Ebay decides in this case.
I'm going to predict that Ebay is going to come down in my favor, as they have to protect their reputation against unscrupulous sellers, but who knows.

I guess the only way to be protected is to ask, if it's not explicitly stated, "Does everything work?". And then you will have a response you can bank on. The answer will constitute representation.

 

[dee_dub]

I'm interested to see how it goes, but I confess to being a little more sceptical about eBay's motivation to protect its own reputation. Please keep me posted. And good luck to you!

 

[kbarb]

After looking at the Ebay ad again I realize I missed that the generic description included in its feature list - the feature that's defective in my phone (ability to sync to computer).
This constitutes representation of usable functional features it would seem.

So would you agree then, that representation trumps "as is" (=can't return for any defects) ?

 

[dee_dub]

Not without knowing what this description says and the context in which it says it, and that anything else required for your phone to sync with your computer has been met.

 

[kbarb]

Not without knowing what this description says and the context in which it says it, and that anything else required for your phone to sync with your computer has been met.

Ok. I just meant that as an "other things being equal" question.

Other things being equal, if the description says the phone will "sync with a pc" (in this case) and the user has all met all the requirements for that feature to work, but there is a hardware defect which prevents "sync with PC", does that trump "as is" -- you can return it after all.

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In other words:

For sale: Item A which does X, as you long as you fulfill / have Y requirements, but sale is "as is" - you can't return it for defects.

You fulfill / have Y requirements.
But item A is defective, doesn't do X.

Can you return it for refund ?

------------------------------
Sorry if I'm beating this to death, but I'm just sort of curious.

 

[dee_dub]

I'm sort of curious too. I had a smart reply, but it's pointless. If the seller represents that he's selling an A that does X, and it turns out the A doesn't do X, then I would say you have grounds to return it. If he didn't, then you don't. But what do I know.

 

[kbarb]

The final report :

So after dickering with the guy for a while, basically getting blown off, I had to start a Paypal Resolution process.

I kind of threw the book at him, detailing everything, knowing it was all going to be read by the Paypal arbitrators if necessary. I think he looked pretty shaky on paper and by past behavior.

So the guy started out somewhat recalcitrant, then got exacerbated and offered a refund less shipping. I held out, not seeing why I was going to have to pay both shipping to and from, for a disfunctional item.

Finally he accepted my offer of a full refund, and went into double apology mode. Perhaps he remembered that I hadn't given him feedback yet and he doesn't have that many sales at that, plus I think he had the feeling it was going to be reviewed (which I don't believe it is, unless you escalate it).

It was a big hassle by the time it was over, but at least I got the sale and shipping money back. So it goes.

Thanks very much again for all the opinions and counseling. It helps to run it by others to sort out your approach.

 

[dee_dub]

Congrats, and way to go.