Who Has To Eat The Cost Of A Lost/Stolen Gun

[denton]

It depends some on whether the transaction is between businesses, individuals or some combination of those. The Uniform Commercial Code protects individual buyers who buy from businesses.

The Uniform Commercial Code has been adopted by all 50 states. The joke is that the UCC assumes that individuals are incompetent to look after themselves. It provides that unless the purchase agreement states otherwise, the seller is responsible for the item until it lands on the buyer's doorstep.

Now, in practice, it doesn't always work out that way. Regardless of what the UCC says, getting a judgement and collecting on the judgement when the seller is in a different state is seldom worth the cost.

It's always best to insist on insurance.

The shipper has to file for the insurance, so the carrier owes the seller and the seller owes you.

Here in Utah there is no reason to buy an out of state firearm. KSL.com usually has about 1,500 firearms listed for sale at any given time. Most of them are private sales, so one state resident can buy from another without any government participation and still have quite a large selection.

 

[Cosmoline]

For firearms, custom and practice are that the seller has control over shipping and the seller has the risk of loss until tender to the buyer or (I would think) the buyer's chosen FFL. Whether that would hold up in court I do not know, but in many transactions I've done that seems to be the standard practice. It makes good common sense. The seller gets to choose insurance while it's the buyer who picks the dealer and bears the risk not only of theft after that point but of a failure of the background check.

UCC would likely control if it did go to court. Best to make it clear by agreement if you're dealing with a high-value firearm. And absolutely ESSENTIAL you have enough insurance.

 

[Canazes9]

This is the best answer thus far. Assumption of risk can pass between the parties at different points in time, depending on the contract. The link is a wikipedia article that explains the terms a little more.

http://en.wikipedia.org/wiki/FOB_(shipping)

Sorry, this is the wrong answer - FOB is for commercial shipping w/ contractual arranged shipping terms. It has almost no applicability for an end use consumer and without a contractual agreement it's not applicable. Seems like a lot of folks confuse their work experiences w/ being an end use consumer.

As stated many times to the OP's question, the credit card company will reverse the charges every time. Credit card companies are not in the business of committing or aiding/abetting mail fraud - if it was illegal they could not and would not do it. If you are charged for an item that you never received then the credit card company can reverse the charges, they will reverse the charges, they do reverse the charges - EVERYDAY!

This isn't an opinion - call your credit card company and ask them! Please post !

David

 

[EddieNFL]

If you are charged for an item that you never received then the credit card company can reverse the charges, they will reverse the charges, they do reverse the charges - EVERYDAY!

Yep. Haven't lost one, yet. Including an item I received, but was not what I ordered (shipper admitted mistake).

Shipper insisted I return the item at my expense. I refused, contacted my CC company and received a UPS return label a few days after my CC was credited.

I've passed on more than one deal because the seller did not accept CCs.

 

[tazbigdog]

I thought of another thing, when I sell on fleabay, I routinely ask the buyer is they want insurance on the item won. It is stated in the terms, as well as the shipping/handling cost. If the buyer wants insurance, they pay for it. If they don't, it's on them if lost or stolen. Only had one item lost or stolen, lucky for him he paid for insurance. It was a Cold Steel Master Tanto.

 

[denton]

I've passed on more than one deal because the seller did not accept CCs.

A wise precaution. If a seller says he won't accept CC because he has "had trouble with them" it means that he has been charged back for fraud or non-delivery.

It's also easy enough to Google an individual seller to see if he has a real address and a real phone number. It's worth spending a few minutes with him on the phone, just to check it all out. If someone is working out of a PO box, won't give you a physical address, and doesn't have a phone number, I'm a lot less interested in dealing with him.

Some SOB in the midwest still has my money and gave me a BS story about how he shipped my rifle, but it must have gotten lost in transit. Funny how he stopped responding when I pressed for a receipt. It would have been completely impractical to go after him. And Gumbroker was no help either. They completely refused to honor the insurance they offered at the time.

 

[gatorjames85]

Credit card companies are not in the business of committing or aiding/abetting mail fraud

Explain to me how someone has the necessary intent to commit mail fraud when something they shipped gets lost in the mail through no fault of their own? Just because the credit card companies have a broad policy to this effect doesn't mean that it always reflects the governing law.

without a contractual agreement it's not applicable

My point, if you read my post, is that risk can be contractually assigned.

 

[Cosmoline]

Wait a minute. There's a big difference between the seller's fraud or nonperformance and the OP's question about who bears the risk of loss. Being taken for a ride by a seller or rejecting tender of nonconforming goods are not part of the risk of loss. Risk of loss arises when the shipper loses the goods or they're stolen en route.

Also what the credit card companies do or do not do does not govern risk of loss.

Bottom line, if you have a high value transaction you should allocate risk of loss by agreement, insure the goods and so on. Do not just assume that you can reverse charges in the event of a loss and that will be the end of it.

 

[EddieNFL]

Do not just assume that you can reverse charges in the event of a loss and that will be the end of it

.

Unless the seller/shipper can prove it was delivered (to the correct party) where will it end?

About 10 years ago I ordered parts from Hornady that I never received. Hornady insisted UPS had delivered to my door. UPS contacted me asking if I received, could someone else have picked it up and forgotten to tell me, etc. Hornady stood fast and I contacted my CC company. Got my money back.

 

[Cosmoline]

where will it end?

If the dollar value is sufficient, it could end up in a law suit. It typically isn't worth while because few firearms cost more than $1,500. The credit card companies do not sit in judgment of anything. If you reverse charges and the seller can show the item was duly shipped and that someone signed for it at the address you gave them, they most certainly can win a judgment against you.

For small orders they are unlikely to bother with it. Though they may decide not to ship to you again. Don't make the mistake of applying these practices to serious purchases. Get it in writing, and make sure everyone knows the FOB terms.

 

[EddieNFL]

If you reverse charges and the seller can show the item was duly shipped and that someone signed for it at the address you gave them, they most certainly can win a judgment against you.

Pretty sure I said something about proving item was received.

Though they may decide not to ship to you again.

If I reversed charges, they didn't get it to me the first time, so no loss there.

 

[woad_yurt]

I thought of another thing, when I sell on fleabay, I routinely ask the buyer is they want insurance on the item won. It is stated in the terms, as well as the shipping/handling cost. If the buyer wants insurance, they pay for it. If they don't, it's on them if lost or stolen.

In effect, you're saying that even though you are the one who arranged shipping with the carrier, it's someone else who must eat it if it goes wrong. We're talking about legalities and what is, not what you'd like it to be. Just because you say something doesn't make it so. I could say that a screwdriver is a tree but it would still be a screwdriver.

Over the years, as a sometimes frequent eBay buyer, I've had two item-not-received episodes and I got my money back both times. I called up my CC company; both times, they charged back the sale to the seller.

CC companies make their living by your wracking up a balance and paying interest so it's against their financial interest to charge back (negate) a transaction. So, why do they shoot themselves in the financial foot that way? Because, if they side with a seller who doesn't deliver as promised, they'd be profiting from a breached contract. They don't want to be seen as facilitating or being complicit in a fraudulent sale.

Explain to me how someone has the necessary intent to commit mail fraud when something they shipped gets lost in the mail through no fault of their own?

If something accidentally goes astray in shipping and, after being informed of the situation, the seller then refuses to make it right by a giving a refund or sending another item, then it becomes the seller's fault because the seller has then knowingly taken money for something he/she has not delivered.

Ever have an auto repair in which parts and labor are guaranteed for a length of time? If the mechanic has provided the water pump, for example, and it goes bad within the warantee period, the mechanic must replace it free of charge and then must go back to wherever he got the failed water pump to haggle with them for a refund. The car owner (buyer) deals with the mechanic (seller) and the mechanic deals with the parts source (shipper.) How'd you react if the mechanic said "yeah, the part is under warrantee but you have to take it back to NAPA, not me." You folks that say the buyer, rather than the shipper, has to eat a shipping loss are saying the same thing.

The seller names figure, charging for the item and the shipping and he/she has to provide both once he/she accepts the money. Even if the seller says "free shipping," the seller still has to refund or deliver another if the original is lost in transit.

For those of you who say otherwise, how about posting some proof? This is the age of Google; it should be easy and simple to find if it exists. Copy and paste away!

Think: You're saying that the shipper is not responsible for the shipping. It makes no sense and I would love to see any bona fide citation that says so. I challenge any and all to find and post one! Look down; the gauntlet has been thrown! ¡Venga, Sancho, montamos a caballo!

 

[Cosmoline]

If you want to know the law, the UCC governs.

§ 2-509. Risk of Loss in the Absence of Breach.

(1) Where the contract requires or authorizes the seller to ship the goods by carrier
(a) if it does not require him to deliver them at a particular destination, the risk of loss passes to the buyer when the goods are duly delivered to the carrier even though the shipment is under reservation (Section 2-505); but
(b) if it does require him to deliver them at a particular destination and the goods are there duly tendered while in the possession of the carrier, the risk of loss passes to the buyer when the goods are there duly so tendered as to enable the buyer to take delivery.

http://www.law.cornell.edu/ucc/2/2-509.html

I would say that implicit in most firearm sales is a promise to deliver to the buyer's FFL. That makes them a bit different from other transactions. But once there, the risk passes to the buyer. And all of this is subject to change by agreement. And as I said earlier, if you have a high dollar value item it's deeply stupid not to get the risk of loss and insurance issues taken care of in advance. DEEPLY stupid.

You have to remember though that the UCC does not cover services, only goods. An auto mechanic working on your car would probably not fall under the code.

 

[woad_yurt]

(1) Where the contract requires or authorizes the seller to ship the goods by carrier

Like when the seller says "Pay me $385, $350 for the gun and $35 S/H" followed with the buyer giving the seller $385.00?

He who ships* is responsible for shipping and he who buys is responsible for paying.

* Often referred to as a "shipper."

 

[Rail Driver]

The Uniform Commercial Code has been adopted by all 50 states.

This is not entirely true. The UCC has been adopted in some form by all 50 states. This means that there ARE differences, however minute, from state to state. These differences may not mean much in the grand scheme of things, but in some situations (such as the one being discussed in this thread) the differences could mean a great deal to a buyer, especially when buying across state lines.

I don't claim to know all of those differences, however it's something to consider.

 

[milefile]

I have a gun in transit right now and they sent it ground. Very nervous about it getting here... Wednesday can't come fast enough. I don't know if it's isnsured. Hopefully the fact that it's a rifle will make it too hard to steal.

 

[dogtown tom]

tazbigdog I thought of another thing, when I sell on fleabay, I routinely ask the buyer is they want insurance on the item won. It is stated in the terms, as well as the shipping/handling cost. If the buyer wants insurance, they pay for it. If they don't, it's on them if lost or stolen. Only had one item lost or stolen, lucky for him he paid for insurance. It was a Cold Steel Master Tanto.

It doesn't matter if the buyer bought insurance. If that item never arrived or if it arrived damaged.........you the seller are responsible.

Ebay policies are very clear, the item must arrive in the same condition as when it was sold. If it doesn't the buyer can file a claim with Ebay and WILL WIN. Ebay will refund their purchase price including shipping fees and reverse any payments they may have sent to you.

Insurance protects the shipper, not recepient.