Legal Question in Consumer Law in California

Phony "Campaign Buttons" not labeled repro from online auction house and they refuse to take them back.

I recently won an online auction for several President pins in good condition. Upon receiving them I immediately could tell they were reproductions except for 2 of the 35 of them. Besides being in poor condition because they obviously were in the sun, the remaing 33 pins were not labeled "reproductions". eHow's webpage states that the pins must be "labeled" by law. An email to the auctioneer fell on deaf ears with my return request for a refund, less a 20% fee, was met with:

"Thank you for writing. I have reviewed the listing in great depth and have carefully considered your request. I do not see a major distortion/discrepancy in the listing; as we list items as they appear to us and state that we are not experts in any one given field. There was really no way for us to know the origination period/"authenticity" of these items. This is also why we strongly encourage contacting us with any and all questions prior to bidding to avoid and confusion or to clear up any misconceptions (as we sell our items 'as-is.) As our terms and conditions state, we can only issue a refund when an item is received in a condition significantly not as described. I hope this helps to clarify and regret any inconvenience to you ." They are based in PA and the auction server in CA.

Thus I have two questions, the first being, Aren't they liable for auctioning an illegal item, as the pins do not have a "reproduction" label on them and it was their responsibility to make it known in their ad? Secondly, how should I proceed from here? Thank you very much for your assistance, I know your advice will prove useful now and with future purchases that I make online.

Respectfully,

Philippo

5/17/234th


Asked on 5/20/11, 2:18 am

1 Answer from Attorneys
George Shers Law Offices of Georges H. Shers

Your case depends in large part on what the ad stated exactly. If the pins are if poor condition, take pictures showing that and send to the auction house pointing out that you paid what yo did because the pins were supposed to be in good condition and their value is much less because of the poor condition. That there are two "real" pins among the others shows that it was intended to be sold as real pins and the prior owner may not have even realized what he was selling. There is no contract because there is no meeting of the minds [classic English case of the ship Peerless--no contract unless both parties have the same object in mind when buying and selling -- i.e. real pins versus copies]. If the law also requires that the be labeled reproductions then the seller is held to know the law and has violated it so again no valid contract. They should have known to put in the ad that the had no idea if they were real pins or copies, so another basis as to no contract.

You do not say how much money is involved so i do not know if it is worthwhile for you to hire an attorney to write a legal demand letter [I charge $100 per hour as I am semi-retired; you might be able to find others in your geographic area for $200-250] or you do it yourself. if there are no results, then you would need to file in Small Claims Court but they would try to argue they are not subject to its jurisdiction--you would argue they are doing business in California.

Contact me [ 510-441-2684] if you have questions.

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Answered on 5/20/11, 8:43 am


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