Expert: Rob James - 7/21/2007

Question
QUESTION: I recently used the 'Buy It Now' option to purchase a used car from a dealer in Texas. I immediately received confirmation from EBay and the dealer that the sale was accepted. An hour later, I received an email from the dealer that the vehicle had been sold off their lot earlier and so was not available. They are refusing any compensation to me as winning bidder on their auction, citing a disclaimer on their listing that they reserve the right to terminate the auction at any time to sell their vehicles locally. The auction I won was active when I used 'Buy It Now' and I retain all supporting documents. I have reported the matter to Trust and Safety but they seem unwilling to coerce the dealer to help me; I do think they will discipline him but that won't help me. I have filed a complaint with BBB. What are my legal remedies? Is this a breach of contract worth pursuing in court? There seems to be a $4000 difference between the Buy It Now price I exercised and the Kelly Blue Book value. Thnaks!

ANSWER: Hi John,

I've heard of this happening many times before and have actually seen ads like you mentioned. There are many dealers out there who use ebay as a marketing tool for their cars etc. and most of them will include a disclaimer, of sorts, that does indicate the item may be sold off auction.

You initial reactions were correct. Contacting Trust and Safety is a must. I'm not sure what the BBB can do aside from  adding the complaint to the company's file. So where does this leave you?

Well, the good thing is you haven't paid any money to them so you are not out any cash. Yes, you don't have the car you wanted to purchase but it's definitely a lot better to be empty handed than having an empty pocket too. The only thing ebay can do is possibly suspend their account. However, it is the option of the seller to discontinue any auction as he or she sees fit. The fact that you had already done the Buy It Now may have some weight on the discipline invoked on the company but it's hard to say. Ebay is a funny beast and I know they like getting money so if this is a consistent seller who generates a lot of sales then they may just slap the sellers wrist and tell them to be more careful about closing listings that have already sold.

As far as a legal recourse, I honestly don't think you have anything to go on. If you had handed over money to them then it would be different. However, since they did include a disclaimer in the listing I think they are off the hook. The only issue is between them and ebay as far as their selling practices go.

One thing you may want to do in the future is to go through as much of the seller feedback as possible prior to bidding oe buying to see what others have experienced. Since you completed the Buy It Now option on your auction, you should be able to leave negative feedback for them even though you didn't get the car. They may not want to see that on their profile and may ask you to remove it, at which time you may want to discuss compensation with them. It's a long shot but it may work. On the flip side, they could hit you with a negative but ebay should quickly remove that due to the circumstances.

If you still had questions and you haven't already done so, try going to the Live Help from the ebay home screen (tiny link in the upper right hand section of the page). There you can ask a live person pretty much anything. It's worth a shot if you aren't getting anything from the e-mail inquiries.

Sorry it's not the answer you want to hear but I hope it helps.

Rob

---------- FOLLOW-UP ----------

QUESTION: Thanks for the honest input, Rob. The disclaimer they run says 'We reserve the right to end this auction early for any reason and to sell the car to our walk up traffic at any time before end of auction.' My legal point is that they never ended the auction. I ended the auction by winning it (using the Buy It Now option). If they had a valid disclaimer on their listing, I might agree with you, but since they didn't end the listing and even sent me a confirmation that I had bought the vehicle, I still think they are in breach of a valid contract. What do you think of the validity of their disclaimer given the fact that they allowed me to 'Buy It Now'. Thanks!

Answer
Hey John,

I understand what you are saying and while it seems to both you and me that there should be some recourse on the sellers part, I think the chance is slim at best that you would be able to get anything from them.

The issue with them not ending the listing and you getting a confirmation email probably won't matter. Mainly because the seller could have sold the car an hour before you clicked Buy It Now and he simply didn't have time to pull the listing. While I don't know that as a fact, I would imagine that is something they would probably say. Or, it could be that they update their listings at the end of the day.

As for the email, they most likely use an automated system that send replies after an auction closes. This is common for large sellers and it gives the impression of personalized service.

Like I said, I wish there was something ironclad that you could go after but I really think it's basically between ebay and the seller at this point. Unless they have your money I don't know what else you can do.

Rob