Re: [Leica] Zoom Saga...instead of fuss...DELETE IS YOUR FRIEND! USE IT!

["Bryan Caldwell" <bcaldwell@softcom.net>]

Austin,

I do not believe it is reasonable to represent to the entire world that you
have an item for sale, and thus the power to sell it, simply because you
have seen it for sale elsewhere. In the case we have discussed, the lister
had no commitment whatsoever from the actual owner to provide the item to
him.

For a fraud to become criminal - there need be no loss to anyone. If someone
printed copies of your checks, tried to cash them at a bank and was stopped
before any money had been paid, there would have been a criminal fraud and a
forgery - but no loss.

The law can be complicated, not because people profit it from it being so,
but because factual situations are infinite and it easy not easy to create
simple rules to govern them. Those who make the laws are not generally those
who profit from their complexity.

If you wish to continue this, please do so privately,

Bryan


- ----- Original Message -----
From: "Austin Franklin" <austin@darkroom.com>
To: <leica-users@mejac.palo-alto.ca.us>
Sent: Saturday, March 10, 2001 7:48 AM
Subject: RE: [Leica] Zoom Saga...instead of fuss...DELETE IS YOUR FRIEND!
USE IT!


> > Austin,
> >
> > I hope this is what you've asked me to provide:
> >
> > I do not believe that posting an item with reserve on eBay which one
does
> > not own or does not have power to transfer title is, by itself, a
> > violation
> > of the law. If, however, someone met the reserve before the item was
> > withdrawn, that might well be a different story.
>
> No, you can stop the auction at any time, for any reason, even if reserve
is
> met.  The auction can be stopped, with no legal obligation to any parties,
> until the auction if final, ie, stopped or completed, with reserve met,
with
> a winning bidder.  In order to stop an auction in progress, with no
reserve
> or when reserve was met, the seller must cancel all bids on that auction.
>
> > It is eBay's
> > position that
> > a bid which meets or exceeds a reserve price constitutes a
> > binding contract.
>
> Again, eBay does not make the law, so whether this constitutes a legal
> contract is another story.  eBay, as I stated above, does allow the
seller,
> FOR ANY REASON, to cancel the auction...and/or any bids with no
obligation.
>
> > Entering into a binding contract to transfer title to something you do
not
> > own or have the power to transfer is fraudulent.
>
> But the contract is not a contract until the auction is over, and there is
a
> winning bidder.
>
> > The problem here is that
> > the minute a bid is placed which meets the reserve, a binding contract
has
> > been formed (at least according to eBay).
>
> Nope.  Not until the auction is over, and there is a winning bidder.
> Bidders can cancel their bids too, with no obligation.
>
> > If the seller knows he does not
> > have the power to pass title, he has acted fraudulently.
>
> Only if the auction went to closure, which, in this case, it did not.
>
> > Listing something for which you do not have power to transfer title
brings
> > into play several sections of eBay's User Agreement.
> >
> > Section 6.1: "Your information (or any items listed therein): (a)
> > shall not
> > be false, inaccurate or misleading . . .  (c) shall not infringe any
third
> > party's . . . proprietary rights . . .  (d) shall not violate any law,
> > statute, ordinance or regulation (including . . . false
> > advertising)." [for
> > the sake of brevity here I'm only including the relevant portions]
>
> I do not see anything WRT this issue violated here.  The listing did not
> contain any false, inaccurate or misleading...didn't infringe...and didn't
> violate any laws etc.
>
> > Section 14: "You shall comply with all applicable laws, statutes,
> > ordinances
> > and regulation regarding your use of our service and your bidding on,
> > listing, purchase, solicitation of offers to purchase, and sales
> > of items."
>
> Yep, and no laws were broken.  I find no clear violation of the Cal Civil
> Code section 1572.  Any arguments would be weak, at best.
>
> > Look at "1" done for the purpose of inducing someone to
> > enter into
> > a contract. Isn't that what happens when you post something on eBay
which
> > you have no power to sell?
>
> If you have reasonable belief that you DO have power to sell it, then
there
> is no violation.  You keep avoiding the word "reasonable".
>
> > Of course it doesn't violate the statute until
> > the contract is actually formed, i.e., the winning bid is
> > received. Then it
> > is the winning bidder who has been damaged - or perhaps the rightful
owner
> > of the item posted.]
>
> And there was NO winning bidder, so now that you admit this, why are you
> arguing the point?
>
> > The legalities of eBay
> > listings are much more complicated than they might seem at first.
>
> I disagree.  Law is complicated only if people make it complicated, and
> there are a large group of people in this country that like it complicated
> since they profit from its complication.
>
> > If there is
> > a misrepresentation of a material fact made in order to induce someone
to
> > enter into a contract, that seems to be covered by the above Cal
> > Civil Code.
>
> And I say there was no misrepresentation of any material fact.  The seller
> had reasonable belief that the lense was available to him, and again,
> someone had to have injury, in this case, for there to be a case...also
you
> need a Plaintiff, and there is none.
>
> > >>in all fraud cases there has to be injury<<
> >
> > Austin, are you sure of this? If someone fraudulently writes
> > checks on your
> > account but gets caught before any money is actually paid would you
agree
> > that there is no case?
>
> Certainly, IMO, in the case we are discussing.  Your situation above is
> different...first, it is theft (of the check), then there is forgery (the
> signature).  There is injury, in the fact that the check as been, in fact,
> stolen.
>
>