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Old March 04, 2008, 23:36   #1
Abominog
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CYA: Terms of sale, shipping, and ownership

I write this with the hopes that it clarifies some responsibilities and also provides some CYA for transactions.

Largely, I will follow legal terms of transaction (UCC and/or INCOTERMS as followed by US and international law, respectively) but will make references and examples as “ordinary” people do things. This is not comprehensive; nor do you necessarily want to follow all if it, since the formal process is cumbersome, particularly for small transactions.


BUYING AND SELLING

A prospectus- this is an overview of the item to sell. It is not, in most cases, a LEGAL commitment to sell. For example, an ad for “1967 GTO, $5000 call 555-1212” does not mean the first caller gets it- legally or realistically.

Likewise, an ad in FAL Files Marketplace would largely (legally) be considered a prospectus. While we as gentlemen generally accept an “I’ll take it” as a commitment, legally it probably would not be considered a commitment to purchase. That said, it works, and cuts out the often unnecessary steps.

Inquiry/ Negotiation- this is the dance where parties finalize terms. This may include actual price, shipping method, etc. Now, keep in mind though that here on FAL Files “I’ll take it” means just that- while legally not a commitment, I would not expect to be well respected if one falls back on this write-up to crawfish.

Sales Offer- this is a legally binding commitment to sell. If the buyer takes your offer, then you MUST deliver. IMPORTANT: A seller should specify the time the offer is valid; if one does not, it is effectively valid forever.

Order- a formal commitment by buyer to purchase. Once done, the buyer is legally committed to pay (or trade, or whatever) along the agreed terms, and is committed to receive sale item(s).

Sometimes and order may include, even hide, an attempted renegotiation. This is not typically encountered on FAL Files, and would be considered to be in poor taste; buyer will probably be blacklisted.

Order Acknowledgment- Seller legally acknowledges buyer’s order and is committed to sell upon those terms.

Shipment- item is shipped to buyer.


Now, all that said, we informally generally combine/skip a few steps in the sake of reasonableness, time, and in light of value. Nobody is going to die over a set of handguards; but if I were selling or buying a Poyer, I’d make sure the dance was documented pretty close to the above.

THE ITEM

What if the shipper doesn’t ship? What if the item isn’t as described? Let’s talk about that.

Upon reaching the point of the order acknowledgement, both parties are locked in. If either does not perform (say, seller doesn’t send the payment) then that party is in breach of contract and can be sued. Legally, however, both parties must perform without reflection on the other- this means that (legally) even if buyer doesn’t pay, and seller agreed he’d “ship tomorrow” he still has to ship the item; no kidding. Of course, in real life this rarely happens even in the corporate world- but it does happen.

If the buyer receives the item and finds it’s not as described (say, it’s a rock, not a Poyer) then seller is in breach of contract. Seller must provide what was sold, period. He has to provide it whether the buyer returns the rock or not. “Return the rock and I’ll send you a Poyer” is not legal.

Of course, there is bound to be disagreement on some items, such as used handguards (“you said they were VGC, these are only GC!”). And, while it could be resolved in court, it’s not worth the time or money on small transactions, so inevitably turns into a pissing contest instead. That’s just the way it is unless a party wants to file court papers. Would I do it on a Poyer? Yes. But not handguards.

Now if the seller described the item in good faith, then generally (legally) it is considered to be the buyer’s problem. Let’s say a seller sells a USA made 922r FCG, but buyer is a know-it-all expert and knows they are not (once received). This is a very grey area legally, but in the land of informal FAL Files transactions, this is again not legalise, but the seller should make right.

If the seller cannot provide a proper replacement, seller must provide a refund. If the seller cannot provide a replacement, then legally, seller could be made (in court) to cover the difference in cost that the buyer incurred by procuring the correct item. For example, a seller and buyer agree to transact a Poyer for $3000, but the delivered item is one of Pat’s close clones, and seller cannot offer a Poyer for a replacement, then buyer can go buy a Poyer for $6000, and ask the court to make seller pay the difference.


SHIPPING & OWNERSHIP

These are actually two different parts of the transaction, but for the sake of simplicity I will combine them. This means what I’m going to write is not all legally correct, and certainly not comprehensive. But stick with it.

There are two main means to ship and determine who owns what, FOB and CIF.

FOB/ Ex-Works means that the seller pays for shipping, and BUYER is responsible for any insurance. Once the item is handed to the shipping company (DHL, UPS, USPS, etc.) it becomes property of buyer (this sentence is not legally correct according to UCC, but let’s just roll with it, OK? I can’t go into it without huge dissertations).

That means that if the transaction is conducted under the agreed terms “FOB Tulsa” the seller has the responsibility to ship it from Tulsa. But as soon as it’s sent, it’s not his- it’s the buyers. If it’s lost, then the buyer is SOL. I often sell in this manner so I have no legal responsibility if it’s lost (often I can’t replace it, and don’t want to suffer the financial loss). In other words, the risk is assumed by the buyer. Generally, we are “self insured” in that if it’s lost we can either claim it on homeowner’s insurance or bitch, complain, and then forget about it.

The other means is CIF destination. This means seller pays (directly or indirectly) or assumes risk and insurance until delivery. The seller may elect not to insure, but better be prepared to refund or replace if it’s lost (very dangerous).

So if something is transacted as “CIF Tulsa” that means it is going to Tulsa and seller owns it, and is responsible, until it gets to the delivery address. If it gets lost, then seller must replace or refund, then go after the carrier.

CIF “destination”; destination means the shipping address. If buyer had specified a home address, and it gets delivered but stolen off the front porch, it is the buyer’s problem. It does not mean “in your grubby hands” unless signature is required.

Now, I often sell as FOB destination but do insure anyway. Why? Well, I want to release my risk as soon as possible- but I insure (big stuff anyway) just so that if it gets busted/lost then I can compensate the buyer. It is a gentlemanly thing to do. Or (and I’ve never done this) if I insure it and it gets busted and buyer is a jackass, I can claim the insurance, and double dip, and do not have to compensate buyer. Don’t do this.


NOW, ALL THAT SAID…

As you can see, even the short version is cumbersome, and we don’t need to make things overly complicated.

Here is an ad I ripped off FAL Files; I’ve changed it a bit. You can use it as a guideline.


Price for item is $550 shipped.

Terms and Conditions
1. The above items will be offered to the first individual to post an unconditional "I'll take it" to THIS THREAD. "I'll take it IF" or "I'll take it PENDING" is an inquiry and will not be honored as a purchase commitment. Buyer will follow up with a formal order inclusive of these terms via PM or email within 24 hours.
2. Payment will be made in a timely fashion in the form of a United States Postal Money Order and must be recieved within 10 days.
3. If the first buyer fails to complete payment as indicated, the items will be offered to other interested individuals in the order in which they post.
4. Price includes CIF destination, with shipping by UPS ground with tracking and insurance.
5. A 3-day non-firing inspection, from the date of receipt by the buyer, will be allowed. At the conclusion of the three days, the sale becomes final. If the buyer finds the items unsatisfactory they must notify the seller by PM within 3 days of receiving the items. All items must be returned, undamaged, within 14 days of the initial notification via insured shipment. Buyer will be responsible for return shipping costs. The purchase price less the actual original shipping fees will be refunded via United States Postal Money Order within 14 days of seller receiving the return shipment. If the buyer fails to follow these stipulations, the sale becomes final.
6. I will NOT ship to the following states: California, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, New York, or Washington DC.
7. By agreeing to purchase these items, the buyer asserts that they are of legal age, not subject to any legal disabilities, and that the items are legal to own in their city/county/state.
8. I reserve the right to refuse sale to anyone for any reason.
9. Valid until 22 March 2008

I’m sure I’ll be editing this. How about a mod sticky this?
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Last edited by Abominog; March 05, 2008 at 03:51.
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Old March 05, 2008, 00:02   #2
Radio
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Done.

If you want it locked, too, just let somebody know.

We need more articles like this.
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Old March 05, 2008, 04:10   #3
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No, don't lock it, it may well bring us some important point I didn't cover. As well, I already fixed one error.


One member reccomended that # 6 of the example read "I will not SELL" as opposed to SHIP. You can sell to anyone, anywhere worldwide. It is the buyers responsibility to comply with shipping terms of the contract. Note, of course, it may be seller's responsibility to comply with shipping law (ie no shipping mags to NJ). But if they want to buy it, and pay for it, who cares? Sit on it if they can't find a place to send it.

There was a thread (not sure if it was FAL Files) a while ago about a guy who didn't pass the background check. Well, legally, tough beans dude. It shipped to the FFL, which is what the buyer designated. Not the seller's problem. FOB or CIF doesn't matter, the seller completed his end of the transaction.

There's one running now on a purchase from a seller that provided the wrong part. First, the seller must now make right. The topic really involved who pays return shipping. Well, if the seller wants it back, they pay return shipping. The buyer received an unsolicited item, and has no responsibility to maintain or return it on his tab. Now, that's the basic edition and it gets much more complicated in the minutiae, but you get the idea. Of course, that doesn't mean you have to be a prick either. If it costs you two bucks to return it, then spend the two bucks and shut up.

But do not let the vendor pull the "return it and I'll send you the right one" crap- no, you can send it today. But be careful, if you ordered a GC L1A1 kit and you got a "fair" L1a1 kit, that's a matter of subjective opinion and the buyer may not be right...so don't be a prick.


On a scary example: I traded some very expensive gear lately. I went to USPS and they wouldn't insure it since they didn't like the way I packaged it. But since the other party had already shipped, I wanted to get it out to him. So I shipped certified, but uninsured. Let me tell you, I almost shipped my pants when the packaged didn't arrive in two days...three days....over a week (for certified mail!). Not only could I not replace the shipment, but I couldn't comfortably afford to pay the other party for the value of what he shipped. Now, we didn't specify FOB or CIF or whatever, so what was I to do? I could have BS'd and said it was "FOB" and the loss was the other party's but what would that make me? I wouldn't feel very good about myself, even if I thought I could legally weasle out of it. Luckily it was finally delivered, so I was saved, and at the same time got a very valuable lesson (that I friggin' already knew better) seriously and scarily reinforced.

Let the above be a lesson: the best intentions can go to ship, and when they do, somebody is going to get it. So make sure it's not you. Better still, make sure it's neither of you.



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Old March 05, 2008, 08:46   #4
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I feel that an "I will take it pending pictures, or clarification or better description of some part" is a valid offer, and should be honored by the seller. Of course this is an offer with a short time limit, and when prospective buyer is provided with photos or the information requested, he or she should make up their minds in short order, and if they decide not to purchase item, should state it clearly.

I have had people post "I will take it" unconditionally, and then later renege with stories like "I don't really need it", "my wife will be mad", or "it's not really what I thought it was" (because you didn't do your homework and read the whole post). Not on the board though, people here seem to be a cut above the uneducated masses!

Asking for more info normally means it is an educated buyer showing real interest, and they should at least have the courtersy of first refusal without some yahoo jumping in with an "I will take it right now" and then later coming up with an excuse.
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Old March 08, 2008, 08:42   #5
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if one guy posts i will take it pending pictures and then another guy posts i will take it .
its going to the second guy .
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Old March 09, 2008, 10:36   #6
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Quote:
Originally posted by mosbysmen
if one guy posts i will take it pending pictures and then another guy posts i will take it .
its going to the second guy .
This has always been a grey area and has been the cause of many hard feelings. It's confusing for several reasons. Suppose the seller has a very short description of an item and no pictures. Example "WTS gas plug $25 shipped" I see the ad and desperately need a G1 style metric gas plug to finish a build so I post that I will take it pending answers to a question and possibly a pic. At this point as far as anyone knows it could be Imbel style, inch pattern, Rhodie grenade sight type, or the one I need. Do I have to take a gamble that it's the right one in order to insure that someone else dosn't jump on it with the first "I'll take it" only to return it to the seller later because it wasn't what he expected ? I will go along with the "first I'll take it" method of conduct, in fact I have been one of the ones for years who believes completely in this way of doing things BUT it should be the responsibility of the seller to provide a detailed description of exactly what it is he's selling up front and unless you live in the stone age and all you have is a 1960s Polaroid provide at least one damn pic. There are several free picture hosting sites that you can use to link to from here so the excuse that you're not a contributor and can't post a pic dosn't fly. Also do NOT advertise something here with the "I'll take it" rule posted in your ad if you have the same freakin thing posted with the same rules on 5 other websites... A large percentage of the bad feelings caused in the marketplace could be easily avoided if the SELLER was a bit more reponsible in his initial post and makes his terms clear to everyone. And if you're a seller and privately working a deal with someone via email or PM (only if it hasn't been claimed publically already) then please post that the sale is on hold until it's either sold to the secret negotiator or it's back for sale to the first poster... This is the internet and it's not always carved in stone how things should be done but defined rules of proper conduct are a good thing that most of us old timers understand. If you see that someone has expressed a serious intent to buy but is simply waiting for the answer to a question then have enough class to back off until he gets his answer. If you were at a gun show and a guy had a rifle IN HIS HANDS and was asking what caliber it was would you grab it out of his hands and buy it or would you wait until he put it down and walked away ? Abominog thanks for doing this. It has been sorely needed for a LONG time and every newbie who signs up here should be required to read it before being allowed to buy or sell ANYTHING on the files...
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Last edited by NHBandit; March 09, 2008 at 11:00.
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Old April 08, 2008, 21:00   #7
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here one that just popped up:

Seller says I have items A & B that I'd like to trade for 1,2,3 or 4

If I can't find a good trade i'll sell A for X and B for Y prefer to sell A & B as a package.

potential buyer(PB) #1 i'll take A
PB#2 ill take B
PB #3 i'll trade you 1 for A&B

seller chooses PB #3


my opinion is that the seller set his order of preference (OOP) as:

#1 trade
#2 sell as a group
#3 sell as pieces

so the first guy to meet OOP#1 gets the goods. What is the consensus opinion.
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Old June 03, 2008, 09:56   #8
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OK, let me finally reflect on the "I'll take it" issue. This will be from a contractual (legal) view as best as I can tell.

Unfortunately, "I'll take it" legally means nothing. It is a verbal promise, that is all. To be legally binding, the buyer would have to hand, fax, mail, or email a signed "something" (that would be a purchase order).

So "I'll take it" is simply a gentlemen's agreement. That is all. It is not legally binding.

So then the discussion returns to whether "...pending..." means anything of substance in a gentleman's agreement.

I will contrast this with legal documents again. If the buyer faxed a signed document (that's again the purchase order) stating either "I'll take it" OR "I'll take it pending..." both are legal offers to buy.

It then is up to the seller whether to accept it or not. The seller of course is inclined to sell to an "I'll take it"; the "...pending..." is essentially a counter-offer, and seller can accept it or decline it.

So if we reflect real contracts upon gentleman's agreements, then the seller makes the determination on what to do. Note that the seller can also decline the "I'll take it" since the original offer, not being a legal obligation to sell, is only an ad.

Since there will never be agreement on this issue, I suggest that sellers who adhere to the strict "I'll take it" rule make it very clear that is what it means.

Likewise, sellers should clarify any requirement for "I'll take it" posted in the thread as opposed the "I'll take it" send via PM or email.
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Old April 04, 2012, 09:45   #9
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Edit: disregard
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Old July 23, 2013, 07:11   #10
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New Add

My pics won't upload. Can you help?
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Old October 20, 2013, 11:32   #11
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QUestion on the no shipping or sales to Illinois...

I can understand California, New Jersey, etc...but why Illinois ?
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Old October 21, 2013, 07:56   #12
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Quote:
Originally Posted by HikerLT View Post
QUestion on the no shipping or sales to Illinois...

I can understand California, New Jersey, etc...but why Illinois ?

That was an EXAMPLE. You can pick where you want to sell to.
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