Alex Watts :
Hello my name is Alex and I will help you with this. Please note that I am a working Solicitor and may be on and offline as I have to attend Court and meet with clients, even at weekends. As such you may not get an instant response when you reply as this is not an ‘on demand’ live service, but rest assured I will be giving your question my immediate attention upon return. There is no need to wait here, you will get an email when I reply.
Alex Watts :
Was it ever discussed the deposit would be returned? Have you raised a dispute through Paypal please?
No the deposit was never discussed other than the Seller asked for 10% as a gesture of good faith and intent to purchase.
Alex Watts : Have you disputed it through paypal?
I did say I approached both ebay and paypal. I raised a case with paypal but they ruled against me because a Static Caravan is categorised as Real Estate and anything in this category does not qualify for their refund scheme as I have already stated.
Alex Watts : indeed.
Alex Watts : My view is that if you put a deposit down it is non refundable unless it is agreed between the parties that it is not. Otherwise what is the point of a deposit? The seller had to pay the ebay fees etc and is worse off,
Alex Watts : The law in the uk says that he seeking to rely on a term must prove its existence,
Alex Watts : Therefore if you want a refund you have to show it was refundable.
Alex Watts : However this does not stop you from taking action.
Alex Watts : You can issue a county court claim given the value.
i offered in writing to pay botheebay and paypal fees incurred as a gesture to ensure the Seller was not out of pocket.
Alex Watts : You may be able to do this online at www.moneyclaim.gov.uk - but it may only let you serve against UK mainland.
Alex Watts : Bur it may let you issue against against someone in France.
Alex Watts : Otherwise you would need to complete form N1 and take it to your local county court.
Alex Watts : The form is here
Alex Watts : http://hmctsformfinder.justice.gov.uk/courtfinder/forms/n001-eng.pdf
Alex Watts : If and when you get judgment you could enforce it in France with a European enforcement ordrt
Alex Watts : Order
The Seller has a residence in UK and I have this address.
Alex Watts : Can I clarify anything for you about this today please?
Alex Watts : you can only serve at the last known address, so it's the uk then fine, otherwise it has to be France.
I agreed to pay the deposit on the terms he asked for wghich were to ensure that I was serious about the purchase but they did n ot preclude me from not completing as I said in my email.
Alex Watts : Ok. You would need to convince a court, if it went to trial that it was understood or agreed it would be returned.
Alex Watts : You bring the claim, you have to prove it.
Alex Watts : Can I clarify anything else?
In my unlearned view, this is quite specific and not related to any other terms. Therefore, the issue seems to revolve around the interpretation of "deposit" in these circumstances. Of course I would not have paid anything had it been retainable.
Alex Watts : It would be a small claim if disputed and therefore you need to convince a judge this is the view.
Alex Watts : But generally the whole point of a deposit is to secure something.
Alex Watts : Therefoee if you can pursuade a judge that it was returnable if you did not go through with it, then you would get judgment and win.
Alex Watts : Can I claiify anything else for you about this at all?
I need the legal definition of "deposit" for goods not seen where it is agreed that they are to be seen before completing a purchase. To me quite clearly a deposit is only relevant where a transaction is completed not where it is not and where it has been provided as "good faith and intent to purchase" rather than offset against an already agreed purchase. The purchase was not agreed and was subject to confirmation on visit and inspection upon which it was clear to me that the item was neither what I expected nor fit for my purpose.
Alex Watts : It is nothing to do with the word deposit. That makes no difference.
Alex Watts : It is all to do with the terms of contract.
Alex Watts : You agreed to contract and paid a depsoit,
Alex Watts : Was it a term that it would be refundable in the event you withdrew from sale.
Alex Watts : That is the point on which you need to pursuade a judge on balance.
Alex Watts : The term of the contract.
Alex Watts : The basic rule is that a deposit acts a surety for you entering into the contract and effectively guarantees that you will fulfil your side of the bargain. Therefore, if you change your mind and pull out of the deal the supplier is entitled to keep your deposit.
Alex Watts : Please also see
Alex Watts : http://www.adviceguide.org.uk/wales/consumer_w/faq_index_consumer_affairs/faq_consumer_affairs_deposit_back_if_cancel_goods_or_services.htm
I did not agree to contract. I agreed to visit to confirm a decision to purchase based on inspection of the item. There were no terms specified regarding a deposit or anything else. Clearly i would not pay a non refundable deposit if I was planning to withdraw. This was not a contract at this stage. In ebay's definition a bid or offer for a Real Estate item is to demonstrate good faith and intent to purchase and that is what I demonstrated. So my payment was not a deposit against a contract but a gestuire i poof good faith in response to the Seller's request to show that I was serious.
I agree that if you buy someting and pay a deposit and then withdraw, then the Seller has the right to keep the deposit- he may not but I would understand this situation. This is not the case here.
There was no guarantee of completion either expressed or implied. My emails and his response quite clearly show this so I fail to see how it could be construed that a contract was in place.
Alex Watts : You miss the point, as soon as you agree to purchase via ebay then it's a contract,
Alex Watts : as I said its a matter of convincing a judge,
Alex Watts : You asked for the law on deposit and I have given you the law on that
Alex Watts : This is a matter of terms agreed or otherwise.
Alex Watts : Does this clarify the position?
No, I think with respect I followed ebay's rules which clearly state that my opffer was not an agreement to purchase but an indication of good faith and intent to purchase. Not the same thing at all.
And thast offer was subkeject to personal inspection as agreed by the Seller and subject to confirmation.
Alex Watts : there was an offer.
Alex Watts : It was accepted.
On ebay's terms
Alex Watts : There is a contract, even with conditions ie inspection.
Alex Watts : As I said, it's a matter of terms.
Alex Watts : But if ebay say real estate or motor is not binding then you can seek a refund.
Alex Watts : I see ebay have a non binding policy.
Alex Watts : http://pages.ebay.com/help/policies/non-binding-bid.html
Alex Watts : If that is the case the deposit is refundable.
Alex Watts : Does that clarify?
I don't see it but clearly we are getting nowhere and therefore I can see no point in trying to convince a Judge if you do not agree that there was no contract in place and for the life of me I cannot see how it could be interpreted that there was. How can an offer that is specific to ebay's terms of offers be construed as a contract when clearly there is no agreement to purchase.
Alex Watts : Please refer to the above.
Alex Watts : If ebay are saying its real estate or a motor, not covered by their policy, there is a non binding terms clause anyway.
Alex Watts : In that case you can get a refund of the deposit.
Alex Watts : Please see the ebay link above to confirm this.
Yes that is my interpretation as I said that ebay policy on real estate items was not binding and was cosidered a gesture of good faith and intent to purchase. I have previously read the ebay T's and C's which ius why I made the offer in the first place because I knew it was not binding.
Ebay have advised me that they advised the Seller the refund the deposit and offerd their assistance if I pursued a Police course for recovery. They were not prepared to do anything else and this matter did not quality for their refund claim process ( naturally).
Do you now think that I should pursue a claim through the Small Claims Court?
Alex Watts : I think that assists you, but litigation is not guaranteed.
Alex Watts : But I think you have a stronger case now.
Alex Watts : Have a good Easter.
Alex Watts : If this answers your question could I invite you leave feedback on my service which I hope has been excellent today, if you need more information or help then please click reply.Please remember that I am always happy to help if you have future questions, even if I am in Court I can normally respond within a few hours. For future information, please start them with ‘For Alex W’.Please bookmark my profile if you wish for future help: http://www.justanswer.co.uk/law/expert-alexwatts/
Alex Watts :
Can I clarify anything for you about this today please?