Poll regarding item damaged in shipping

[Jerrod]

A guitar is purchased via the internet for $600, and shipped by the seller to the purchaser. The instrument is damaged upon arrival to the point of being a near total loss. Parting out the guitar may yield $100 at maximum. Fixing the guitar will cost approximately $500.

The seller claims the instrument was undamaged upon shipping and doesn't want the item back. Shipping company offers only a partial payout ($300) on the insured amount. Seller offers to split the difference on the loss by paying the purchaser $150.

[Jim Soloway]

It's the seller's responsibility until it's delivered. He owes you a refund.

[Tonefish]

where's the poll?

[plord]

Seller sold a functional piece of gear, not a pile of parts. Sellers owns successful delivery of same. I don't even think the buyer should have to spend time on the phone harassing the carrier; provide photo evidence of damage and then THAT hassle is the seller's job too!

[Wheeler004]

If the seller insured it, it was no longer his responsibility once it was shipped (it was the shipping company's). This is just a bad situation. If you can get the seller to pay half the remaining damages (especially when he is not legally obligated to pay anything), you're getting a better deal than most. Just my two cents...

[Jim Soloway]

If the seller insured it, it was no longer his responsibility once it was shipped (it was the shipping company's). This is just a bad situation. If you can get the seller to pay half the remaining damages (especially when he is not legally obligated to pay anything), you're getting a better deal than most. Just my two cents...

That's between the seller and the carrier not the seller and the buyer.

[XKnight]

You purchased an item in good working condition. You received a significantly damaged item. The seller is responsible for making it right unless some other terms were agreed upon prior to delivery. This is why I maintain personal insurance on all my gear. That way if a piece of gear is damaged during shipping I file a claim with my insurance company which is more likely to pay in full versus a shipping company.

[Tubebender]

sounds fishy....i vote screw job or Full refund, or at least minus 20%. For these reasons, I vote to pick up and try the gear prior to purchase, or trust someone on TGP.

[lougio]

Well first off did you or the seller pay for the shipping? Did you or seller pay for insurance for the full price of the item? Either you didn't have the item insured for what it was worth or there was some short changing going on. I had UPS damage a JTM45 head. They paid me the full insured price. I fixed the amp as well.

[Jerrod]

The guitar was insured for the full purchase price of <EDIT> $600. FedEx says they don't pay when the carton doesn't show damage. Unfortunately, the guitar was apparently dropped, and the neck joint of a set neck guitar is destroyed. FedEx claims they are going above and beyond to make any sort of payment.

I'm not sure what it matters who paid for shipping. You're gonna have to explain that one to me.

[XKnight]

A guitar is purchased via the internet for $600, and shipped by the seller to the purchaser.

The guitar was insured for the full purchase price of $300.

You have some conflicting statements. Please clarify.

[Bryan T]

I hope you paid with a credit card so that you can get the card company to refund your money.

[Reeltarded]

Break something and ship it to him.

[Jerrod]

You have some conflicting statements. Please clarify.

Sorry, typo... insured for full purchase price of $600.

[Jerrod]

I hope you paid with a credit card so that you can get the card company to refund your money.

Tragically, I used a PayPal eCheck. And the claims saga took nearly 2 months to play out.

[Scumback Speakers]

It's the seller's responsibility until it's delivered. He owes you a refund.

Exactly.

If the seller insured it, it was no longer his responsibility once it was shipped (it was the shipping company's). This is just a bad situation. If you can get the seller to pay half the remaining damages (especially when he is not legally obligated to pay anything), you're getting a better deal than most. Just my two cents...

Don't agree. The seller selected the shipper, he packed the guitar for shipping via that shipper, and insurance was paid for the full purchase price. No one slides out of it until the buyer gets the guitar as described before shipping or a full refund. That's just the right/honest thing to do.

I'll bet if your positions were reversed, the seller would want all of his money back, just like you do. Big surprise, huh?

I've shipped many guitars via Fed Ex, never a problem. UPS, big problems...USPS, no problems.

[Luke]

http://www.exporters.sg/info/shipping_terms.asp

[Jerrod]

http://www.exporters.sg/info/shipping_terms.asp

Those are good terms... that most TGP members would be completely unfamiliar with. Unfortunately, in this case (and all other cases), I have approached deals with the understanding that the seller owned the responsibility to deliver the item as advertised. As I type this, 70% of people agree with me, and 20% think the seller's offer is fair. And I want to know who the 5 are that said that the buyer takes all the risk in the shipping of the item, because I don't want to have anything to do with a deal with you unless I'm the seller. From here on out, all my deals will include terms defining this responsibility.

[Blue Fin]

The guitar was insured for the full purchase price of <EDIT> $600. FedEx says they don't pay when the carton doesn't show damage. Unfortunately, the guitar was apparently dropped, and the neck joint of a set neck guitar is destroyed. FedEx claims they are going above and beyond to make any sort of payment.

I'm not sure what it matters who paid for shipping. You're gonna have to explain that one to me.

If the box shows no damage then it probably wasn't packaged properly by the seller.

[OldSchool]

Screw job. But I'd grab the $300, the $150 and call it a life lesson. :dunno

[namrok]

It should be the responsibility of the seller/trader to make sure the item is delivered as described. How well the item was packed and the condition of the item prior to shipment comes into play. Any seller/trader that doesn't take on this responsibility is someone who should be avoided.
Life lesson my A.; only if you like being taken advantage of. You should demand that the right/honest thing is done.

[TDJMB]

Seller's responsibility and owes refund as long as the buyer returns the "parts" so that a claim can be pursued. I really like the idea of going through musical instrument insurance - like Heritage. When UPS stole my Chapin, they tried to pay Bill for the parts. You know, a wood board is worth x, a pickup is worth x, etc.

[Boris Bubbanov]

That's between the seller and the carrier not the seller and the buyer.


Exactly.

And who chose to insure for $ 300, not $ 600?

I don't think the buyer even has a "seat at the table" talking to the shipper.

[Jerrod]

Exactly.

And who chose to insure for $ 300, not $ 600?

I don't think the buyer even has a "seat at the table" talking to the shipper.

As clarified above, the item was insured for $600.

[fullerplast]

The guitar was insured for the full purchase price of <EDIT> $600. FedEx says they don't pay when the carton doesn't show damage. Unfortunately, the guitar was apparently dropped, and the neck joint of a set neck guitar is destroyed. FedEx claims they are going above and beyond to make any sort of payment.

I'm not sure what it matters who paid for shipping. You're gonna have to explain that one to me.

That little detail was probably the most significant thing in determining fault here. It says the guitar was not packed adequately within the case....just like a speaker or transformer that gets ripped off an amp inside a box. It's the packer's (sellers) fault. The boxes will get dropped, that's a given. If it's not dented or punctured, then you can't very well blame the shipper with any degree of certainty. People would be shipping broken vases all day long just to collect money.

All that said, if you get to keep the guitar as is, get $300 from FedEx and $150 from the seller, consider yourself lucky. The amount of work and time involved in trying to get that last $150 from an unwilling seller will probably not be worth it....if you manage it at all. He will probably never accept that the shipper was not at fault.

[Blanket Jackson]

I'm still a relative newbie on TGP, but have had a few deals and have found the TGP members tend to package items like they would want them packaged if they were the buyer. Good way to live. ALWAYS overpack, ALWAYS assume that WHATEVER carrier you use will read "Fragile" as "License to drop, throw, sit on, compress, and otherwide manhandle the shipment". Because the seller has no control over the shipping service, the seller should always do all in his/her power to ensure that bad handling will not compromise the item. If this is done, 99.9% of the time the item will arrive in exactly the same condition that it left.

[treeofpain]

I discagree with those that say the seller should always bear the risk. A seller can pack well, insure, and still have the carrier mishandle and refuse to pay. It's not reasonable to ask the seller to cover the costs in every situation.

However, if the package does not show damage, then the seller did not pack properly (and FedEx really was not obligated to pay out at all).

Practically speaking, take the $150 plus the $300 insurance money from FedEx and run. Getting the other $150 isn't worth the grief, and if you can sell the guitar for $100 as is, you are only out $50, right?

Another option is to try to get another $50 out of the seller so you break even after selling the guitar for $100. (Or offer him the broken guitar for $150 plus shipping costs).

[OldSchool]

It should be the responsibility of the seller/trader to make sure the item is delivered as described. How well the item was packed and the condition of the item prior to shipment comes into play. Any seller/trader that doesn't take on this responsibility is someone who should be avoided.
Life lesson my A.; only if you like being taken advantage of. You should demand that the right/honest thing is done.


Oh I agree 100%. But when you have a guitar thats in pieces, and a carrier only willing to give you half of the Value, and a seller only willing to give you 1/4 % ........And when its only $150 and Not $1500.......Then you take it and call it a life lesson. Sometimes people you deal with turn out to suck and life just isn't worth the hassle. :dunno

Oh......and NEVER demand anything. Its always much easier to get something acomplished with Honey rather then Vinegar. http://www.thegearpage.net/board/images/icons/icon12.gif

[Tonefish]

If the box shows no damage then it probably wasn't packaged properly by the seller.

That's what I'm thinking; that or pre-damaged.

[Doug's Tubes]

Exactly.



Don't agree. The seller selected the shipper, he packed the guitar for shipping via that shipper, and insurance was paid for the full purchase price. No one slides out of it until the buyer gets the guitar as described before shipping or a full refund. That's just the right/honest thing to do.

I'll bet if your positions were reversed, the seller would want all of his money back, just like you do. Big surprise, huh?

I've shipped many guitars via Fed Ex, never a problem. UPS, big problems...USPS, no problems.

This seems to be a gray area although it shouldn't be. It has nothing to do with what anyone thinks the right thing to do should be. The Uniform Commercial Code governs these areas, of course rules are different when transactions occur between private parties and when merchants are involved. No one should assume anything, agreements should be made before a sales transaction is entered into.

The party that bears the risk of loss depends on when title for the goods passes from one party to another.

The results of this poll indicate that the majority of folks here may have it wrong. Example. When I order tubes lets say from the JJ factory in Slovakia, title to my tubes passes to me when the containers are delivered to the shipper. It is my responsibility to insure them properly. I could pick up my tubes at JJ's loading dock, but I have instructed them to either select a shipper or use my own carrier. No manufacturer would sell goods any other way, the term is FOB Origin(title passes to buyer when shipped) or FOB destination(seller retains title to goods and bears the risk of loss until delivered to buyer).
http://en.wikipedia.org/wiki/FOB_(shipping)

International shipments have Incoterms as shipping standards.

http://www.foreign-trade.com/reference/incoterms.cfm

So don't assume anything, make sure you understand at what point you own your goods before you enter into a sales transaction.

[Tonefish]

This seems to be a gray area although it shouldn't be. It has nothing to do with what anyone thinks the right thing to do should be. The Uniform Commercial Code governs these areas, of course rules are different when transactions occur between private parties and when merchants are involved. No one should assume anything, agreements should be made before a sales transaction is entered into.

The party that bears the risk of loss depends on when title for the goods passes from one party to another.

The results of this poll indicate that the majority of folks here may have it wrong. Example. When I order tubes lets say from the JJ factory in Slovakia, title to my tubes passes to me when the containers are delivered to the shipper. It is my responsibility to insure them properly. I could pick up my tubes at JJ's loading dock, but I have instructed them to either select a shipper or use my own carrier. No manufacturer would sell goods any other way, the term is FOB Origin(title passes to buyer when shipped) or FOB destination(seller retains title to goods and bears the risk of loss until delivered to buyer).
http://en.wikipedia.org/wiki/FOB_(shipping)

International shipments have Incoterms as shipping standards.

http://www.foreign-trade.com/reference/incoterms.cfm

So don't assume anything, make sure you understand at what point you own your goods before you enter into a sales transaction.

So what does the code say about person-to-person when nothing is specified? I really doubt there was an FOB specification, and what do international examples have to do with this?

[Jim Soloway]

This seems to be a gray area although it shouldn't be. It has nothing to do with what anyone thinks the right thing to do should be. The Uniform Commercial Code governs these areas, of course rules are different when transactions occur between private parties and when merchants are involved. No one should assume anything, agreements should be made before a sales transaction is entered into.

The party that bears the risk of loss depends on when title for the goods passes from one party to another.

The results of this poll indicate that the majority of folks here may have it wrong. Example. When I order tubes lets say from the JJ factory in Slovakia, title to my tubes passes to me when the containers are delivered to the shipper. It is my responsibility to insure them properly. I could pick up my tubes at JJ's loading dock, but I have instructed them to either select a shipper or use my own carrier. No manufacturer would sell goods any other way, the term is FOB Origin(title passes to buyer when shipped) or FOB destination(seller retains title to goods and bears the risk of loss until delivered to buyer).
http://en.wikipedia.org/wiki/FOB_(shipping)

International shipments have Incoterms as shipping standards.

http://www.foreign-trade.com/reference/incoterms.cfm

So don't assume anything, make sure you understand at what point you own your goods before you enter into a sales transaction.

Try telling all of that to FedEx. They won't even talk to the consignee on a shipment unless it was sent collect. On prepaid shipments, all claims must be initiated by the shipper and all payouts are made to the shipper. The only involvement by the consignee is to have the carrier pickup the damaged shipment for inspection. I believe UPS is the same.

[K-Line]

Always check the package before letting the delivery driver get away. I take full responsibility of the piece from the moment it leaves my door till the customer gets it in the condition they expect. No exceptions, that is called customer service. The only way is if it goes cheap over seas where the insurance is limited. This must be agreed upon in advance as most do not want to pay the full international rate from say Fedex or UPS. The buyer cannot even file a claim anyway so ultimately it is the sellers issue.

[Doug's Tubes]

So what does the code say about person-to-person when nothing is specified? I really doubt there was an FOB specification, and what do international examples have to do with this?

That's a very good question, I've been trying to remember what rules govern sales transactions between private parties where nothing is stated. The UCC is a huge document.

[Doug's Tubes]

Try telling all of that to FedEx. They won't even talk to the consignee on a shipment unless it was sent collect. On prepaid shipments, all claims must be initiated by the shipper and all payouts are made to the shipper. The only involvement by the consignee is to have the carrier pickup the damaged shipment for inspection. I believe UPS is the same.

That seems to be the case. A damaged item is usually sent back to the senders location. I usually prefer to get involved in damage claims anyway, I've only had one damage claim ever with Fedex.

[Scumback Speakers]

This seems to be a gray area although it shouldn't be. It has nothing to do with what anyone thinks the right thing to do should be. The Uniform Commercial Code governs these areas, of course rules are different when transactions occur between private parties and when merchants are involved. No one should assume anything, agreements should be made before a sales transaction is entered into.

The party that bears the risk of loss depends on when title for the goods passes from one party to another.

The results of this poll indicate that the majority of folks here may have it wrong.
So don't assume anything, make sure you understand at what point you own your goods before you enter into a sales transaction.

We aren't talking about a uniform commercial shipment between two businesses, domestic or international, Doug. We're talking about one private party to another. And I think the "right thing to do" still applies in this case.

The buyer trusted the seller with his money for a guitar that was undamaged based on an ad/pics/etc. He paid for shipping insurance, packing, and the seller to ship the guitar with a reliable carrier. Since it was delivered damaged, that's not the buyer's fault. It lies with the seller and the shipper, and as far as I'm concerned, and the majority of the polled people, the buyer is due either an undamaged guitar or a full refund.

For myself, there is no gray area in this transaction. The seller should deliver the item to the buyer as advertised if they're paid for the appropriate services (packing/insurance, etc).

[guitardirky]

the one thing that was ever damaged when I shipped was covered by the carrier. but i still offered to refund him the difference in what ever he lost. we both came out happy campers.

[twinrider1]

I agree with Doug that terms should be discussed ahead of time. But I think 99% of the retail purchases are made with the seller bearing the responsibility of safe shipping (or at least that is the expectation).

Just imagine the crap storm if Amazon told you they weren't responsible for a damaged item!

[trickness]

A guitar is purchased via the internet for $600, and shipped by the seller to the purchaser. The instrument is damaged upon arrival to the point of being a near total loss. Parting out the guitar may yield $100 at maximum. Fixing the guitar will cost approximately $500.

The seller claims the instrument was undamaged upon shipping and doesn't want the item back. Shipping company offers only a partial payout ($300) on the insured amount. Seller offers to split the difference on the loss by paying the purchaser $150.

why should the seller owe the buyer anything if the guitar has been packed well and insured? it's the shipping company that damaged the item. buyer should not have accepted the package, especially if it was so damaged as to be described as a "near total loss". once the buyer accepted the package, despite it being visibly damaged, the seller, and probably even the shipping company to some degree, are off the hook.

buyer needs to readdress with the shipping company, the seller is doing him a major solid taking any responsibility, especially as insurance was provided.

[Jerrod]

why should the seller owe the buyer anything if the guitar has been packed well and insured? it's the shipping company that damaged the item. buyer should not have accepted the package, especially if it was so damaged as to be described as a "near total loss". once the buyer accepted the package, despite it being visibly damaged, the seller, and probably even the shipping company to some degree, are off the hook.

buyer needs to readdress with the shipping company, the seller is doing him a major solid taking any responsibility, especially as insurance was provided.

Until now, I have not tried to sway the discussion much, preferring to let the poll take its course. I think at this point, I've learned what I wanted. I beg to differ with your stance. The seller owes the buyer the goods. The seller packs the item and chooses the shipper. You can say that the issue is between the buyer and the shipper, but that is completely untrue. The shipping transaction is between the seller and the shipping company, and I have no significant influence on the outcome of any claim.

As the buyer, I can't say whether it was the seller's fault or the shipper's fault. I can however, unequivocally, say that it was not my fault. I am certain that I didn't destroy the neck joint of a set neck guitar when I cut the tape on the box and opened the guitar case. I also think you didn't read the thread very well... the box was NOT visibly damaged from the outside. Insurance was provided because I paid for it. I may or may not convince you that you're wrong, and quite honestly, I don't really care. But the terms of my next transaction will be expressly stated.

Don't get me wrong... the guitar isn't destroyed. It still looks quite nice and is suitable for display at the Hard Rock Cafe. But when you string it up with 11's, the neck joint opens up and the action is a mile high. Ain't no truss rod adjustment that's gonna fix that.

[Doug's Tubes]

We aren't talking about a uniform commercial shipment between two businesses, domestic or international, Doug. We're talking about one private party to another. And I think the "right thing to do" still applies in this case.

The buyer trusted the seller with his money for a guitar that was undamaged based on an ad/pics/etc. He paid for shipping insurance, packing, and the seller to ship the guitar with a reliable carrier. Since it was delivered damaged, that's not the buyer's fault. It lies with the seller and the shipper, and as far as I'm concerned, and the majority of the polled people, the buyer is due either an undamaged guitar or a full refund.

For myself, there is no gray area in this transaction. The seller should deliver the item to the buyer as advertised if they're paid for the appropriate services (packing/insurance, etc).

Regardless of the results of this threads unscientific poll, whether it's between private parties, or professionals, you're still dealing with a sales contract where standardized laws apply that are the same in every state. The best way to avoid misunderstandings and disputes is to make contract terms clear ahead of time! I think too many folks here just assume that things are one way when they're not. I am not an expert in contract law, but as a NYS licensed CPA, I did have to have a greater than average knowledge of Business Law(over half of it was UCC) in order to pass the exam. The passage of title and risk of loss are determined by the terms of sale, either FOB origin or destination. Make sure you know which type of sales contract you enter into before you do it!

I sell a $600 guitar and I'm paid in full, the buyer is free to pick the guitar up in person, or arrange their own shipping. Most of the time they instruct the seller to ship the instrument on their behalf. I'm saying this shipment type sales contract is common, and once the package is delivered to the shipper, title to the guitar passes to the buyer who then bears the risk of loss.

This still doesn't excuse the seller for negligent packing, which is another story.

You're right, there is no gray area, there are specific laws.

[Doug's Tubes]

I agree with Doug that terms should be discussed ahead of time. But I think 99% of the retail purchases are made with the seller bearing the responsibility of safe shipping (or at least that is the expectation).

Just imagine the crap storm if Amazon told you they weren't responsible for a damaged item!

Neither the seller or the buyer have any control over a third party shipper. That's why insurance is available. It's in the owners best interest to protect their property for things beyond their control. Which brings us full circle. The question seems to be, who has the insurable interest. That would be the owner of the property. It all comes down to at what point during the sales contract does title pass to the other party.

[Jerrod]

Regardless of the results of this threads unscientific poll, whether it's between private parties, or professionals, you're still dealing with a sales contract where standardized laws apply that are the same in every state. The best way to avoid misunderstandings and disputes is to make contract terms clear ahead of time! I think too many folks here just assume that things are one way when they're not. I am not an expert in contract law, but as a NYS licensed CPA, I did have to have a greater than average knowledge of Business Law(over half of it was UCC) in order to pass the exam. The passage of title and risk of loss are determined by the terms of sale, either FOB origin or destination. Make sure you know which type of sales contract you enter into before you do it!

I sell a $600 guitar and I'm paid in full, the buyer is free to pick the guitar up in person, or arrange their own shipping. Most of the time they instruct the seller to ship the instrument on their behalf. I'm saying this shipment type sales contract is common, and once the package is delivered to the shipper, title to the guitar passes to the buyer who then bears the risk of loss.

This still doesn't excuse the seller for negligent packing, which is another story.

You're right, there is no gray area, there are specific laws.

I agree that the poll is unscientific, but would claim that the results are reasonably instructive. I also agree that all terms should be expressly stated... as I expressly stated above. :o

[Doug's Tubes]

I agree with Doug that terms should be discussed ahead of time. But I think 99% of the retail purchases are made with the seller bearing the responsibility of safe shipping (or at least that is the expectation).

Just imagine the crap storm if Amazon told you they weren't responsible for a damaged item!

Here's a perfect example of what I'm talking about, and I guarantee that 99.99% of retail purchases are this way and not the way you and everyone here think.

Anyone here buy stuff from Musicians Friend? Ever read their Sales contract terms? (Yes you are entering into a binding contract)
http://mf.custhelp.com/cgi-bin/mf.cfg/php/enduser/std_adp.php?p_faqid=1254

Direct off their website, and I quote:
Shipping Charges—Taxes and Title

All items purchased from Musician's Friend are made pursuant to a shipment contract. This means that the risk of loss and title for such items passes to you upon our delivery to the carrier.

You, the buyer are responsible for your stuff as soon as its shipped!

I rest my case. End of thread.

[twinrider1]

Oh I agree with you, especially in the case of manufacturing/wholesale. I just think that, in practice, with the general public, the seller is usually the one contracting with the shipper. Because of that, he has to be the one to handle the issues.

Bottom line, if I'm a seller, the buyer and I will talk it out beforehand. If the buyer doesn't want the package fully insured with signature required, he's sending me a waiver before I ship. Assume nothing.

Edit: I just read your quote from Musician's Friend. That is very interesting. I'm sure I've heard of folks returning damaged gear successfully though. Maybe the language is there for them to use if they want, but general policy may be to accept returns just to maintain customer satisfaction levels?

[Jim Soloway]

Here's a perfect example of what I'm talking about, and I guarantee that 99.99% of retail purchases are this way and not the way you and everyone here think.

Anyone here buy stuff from Musicians Friend? Ever read their Sales contract terms? (Yes you are entering into a binding contract)
http://mf.custhelp.com/cgi-bin/mf.cfg/php/enduser/std_adp.php?p_faqid=1254

Direct off their website, and I quote:
Shipping Charges—Taxes and Title

All items purchased from Musician's Friend are made pursuant to a shipment contract. This means that the risk of loss and title for such items passes to you upon our delivery to the carrier.

You, the buyer are responsible for your stuff as soon as its shipped!

I rest my case. End of thread.


Except that Musician's Friend also has a policy of taking back any goods that are damaged in delivery and providing a full refund. They even pay the return shipping.

[tokiswartooth]

Make sure it is insured, but be aware on vintage guitars they have limited liability. Boutique stuff, it is hard to get the full cost for a repair, or a reasonable setlement. I shipped hundreds of guitars through DHL, but they are no longer doing domestic. FEDEX is better, but UPS, and USPS are ridiculous. I will not ship thorugh either if I can avoid it.

[Tonefish]

Regardless of the results of this threads unscientific poll, whether it's between private parties, or professionals, you're still dealing with a sales contract where standardized laws apply that are the same in every state. The best way to avoid misunderstandings and disputes is to make contract terms clear ahead of time! I think too many folks here just assume that things are one way when they're not. I am not an expert in contract law, but as a NYS licensed CPA, I did have to have a greater than average knowledge of Business Law(over half of it was UCC) in order to pass the exam. The passage of title and risk of loss are determined by the terms of sale, either FOB origin or destination. Make sure you know which type of sales contract you enter into before you do it!

I sell a $600 guitar and I'm paid in full, the buyer is free to pick the guitar up in person, or arrange their own shipping. Most of the time they instruct the seller to ship the instrument on their behalf. I'm saying this shipment type sales contract is common, and once the package is delivered to the shipper, title to the guitar passes to the buyer who then bears the risk of loss.

This still doesn't excuse the seller for negligent packing, which is another story.

You're right, there is no gray area, there are specific laws.

Doug, I think you are flat wrong here. The buyer has a right to inspection and never is forced to accept non-conforming goods. Here's some of the meat:

§ 2-301. General Obligations of Parties.
The obligation of the seller (http://www.thegearpage.net/board/#Seller) is to transfer and deliver and that of the buyer (http://www.thegearpage.net/board/#Buyer) is to accept and pay in accordance with the contract (http://www.thegearpage.net/board/#contract).

§ 2-509. Risk of Loss in the Absence of Breach.
(1) Where the contract (http://www.thegearpage.net/board/#contract) requires or authorizes the seller (http://www.thegearpage.net/board/#Seller) to ship the goods (http://www.thegearpage.net/board/#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 (http://www.thegearpage.net/board/#Buyer) when the goods (http://www.thegearpage.net/board/#Goods) are duly delivered to the carrier even though the shipment is under reservation (Section 2-505 (http://www.thegearpage.net/board/#s2-505)); but
(b) if it does require him to deliver them at a particular destination and the goods (http://www.thegearpage.net/board/#Goods) are there duly tendered while in the possession of the carrier, the risk of loss passes to the buyer (http://www.thegearpage.net/board/#Buyer) when the goods are there duly so tendered as to enable the buyer to take delivery.
(2) Where the goods (http://www.thegearpage.net/board/#Goods) are held by a bailee to be delivered without being moved, the risk of loss passes to the buyer (http://www.thegearpage.net/board/#Buyer)
(a) on his receipt (http://www.thegearpage.net/board/#Receipt) of possession or control of a negotiable document of title covering the goods (http://www.thegearpage.net/board/#Goods); or
(b) on acknowledgment by the bailee of the buyer's (http://www.thegearpage.net/board/#Buyer) right to possession of the goods (http://www.thegearpage.net/board/#Goods); or
(c) after his receipt (http://www.thegearpage.net/board/#Receipt) of posession or control of a non-negotiable document of title or other direction to deliver in a record, as provided in subsection (4)(b) of Section 2-503 (http://www.thegearpage.net/board/#s2-5034).
(3) In any case not within subsection (1) or (2), the risk of loss passes to the buyer (http://www.thegearpage.net/board/#Buyer) on his receipt (http://www.thegearpage.net/board/#Receipt) of the goods (http://www.thegearpage.net/board/#Goods) if the seller (http://www.thegearpage.net/board/#Seller) is a merchant (http://www.thegearpage.net/board/#Merchant); otherwise the risk passes to the buyer on tender of delivery.
(4) The provisions of this section are subject to contrary agreement (http://www.thegearpage.net/board/#agreement) of the parties and to the provisions of this Article on sale (http://www.thegearpage.net/board/#sale) on approval (Section 2-327 (http://www.thegearpage.net/board/#s2-327)) and on effect of breach on risk of loss (Section 2-510 (http://www.thegearpage.net/board/#s2-510)).

§ 2-512. Payment by Buyer Before Inspection.
(1) Where the contract (http://www.thegearpage.net/board/#contract) requires payment before inspection non-conformity of the goods (http://www.thegearpage.net/board/#Goods) does not excuse the buyer (http://www.thegearpage.net/board/#Buyer) from so making payment unless
(a) the non-conformity appears without inspection; or
(b) despite tender of the required documents the circumstances would justify injunction against honor under this Act (Section 5-109(b) (http://www.law.cornell.edu/ucc/5/article5.htm#s5-109b)).
(2) Payment pursuant to subsection (1) does not constitute an acceptance of goods (http://www.thegearpage.net/board/#Goods) or impair the buyer's (http://www.thegearpage.net/board/#Buyer) right to inspect or any of his remedies.

§ 2-513. Buyer's Right to Inspection of Goods.
(1) Unless otherwise agreed and subject to subsection (3), where goods (http://www.thegearpage.net/board/#Goods) are tendered or delivered or identified to the contract for sale (http://www.thegearpage.net/board/#Contractforsale), the buyer (http://www.thegearpage.net/board/#Buyer) has a right before payment or acceptance to inspect them at any reasonable place and time and in any reasonable manner. When the seller (http://www.thegearpage.net/board/#Seller) is required or authorized to send the goods to the buyer, the inspection may be after their arrival.
(2) Expenses of inspection must be borne by the buyer (http://www.thegearpage.net/board/#Buyer) but may be recovered from the seller (http://www.thegearpage.net/board/#Seller) if the goods (http://www.thegearpage.net/board/#Goods) do not conform and are rejected.
(3) Unless otherwise agreed and subject to the provisions of this Article on C.I.F. contracts (http://www.thegearpage.net/board/#contract) (subsection (3) of Section 2-321 (http://www.thegearpage.net/board/#s2-3213)), the buyer (http://www.thegearpage.net/board/#Buyer) is not entitled to inspect the goods (http://www.thegearpage.net/board/#Goods) before payment of the price when the contract provides
(a) for delivery "C.O.D." or on other like terms; or
(b) for payment against documents of title, except where such payment is due only after the goods (http://www.thegearpage.net/board/#Goods) are to become available for inspection.
(4) A place or method of inspection fixed by the parties is presumed to be exclusive but unless otherwise expressly agreed it does not postpone identification or shift the place for delivery or for passing the risk of loss. If compliance becomes impossible, inspection shall be as provided in this section unless the place or method fixed was clearly intended as an indispensable condition failure of which avoids the contract (http://www.thegearpage.net/board/#contract).

§ 2-606. What Constitutes Acceptance of Goods.
(1) Acceptance of goods (http://www.thegearpage.net/board/#Goods) occurs when the buyer (http://www.thegearpage.net/board/#Buyer)
(a) after a reasonable opportunity to inspect the goods (http://www.thegearpage.net/board/#Goods) signifies to the seller (http://www.thegearpage.net/board/#Seller) that the goods are conforming (http://www.thegearpage.net/board/#conforming) or that he will take or retain them in spite of their non-conformity; or
(b) fails to make an effective rejection (subsection (1) of Section 2-602 (http://www.thegearpage.net/board/#s2-6021)), but such acceptance does not occur until the buyer (http://www.thegearpage.net/board/#Buyer) has had a reasonable opportunity to inspect them; or
(c) does any act inconsistent with the seller's (http://www.thegearpage.net/board/#Seller) ownership; but if such act is wrongful as against the seller it is an acceptance only if ratified by him.

[Doug's Tubes]

No, it pretty much is a whole lot of verbage for what I said. Most of those provisions don't apply to a simple "shipment contract" where payment by the buyer is prepaid and title to the goods and risk of loss passes immediately upon delivery of said goods to the carrier. There is no breach of contract in the OP's example that I can see. The shipper destroyed the goods, and insurance should have covered the loss.

Musicians Friend will take the goods back because they have insured them and will be made whole. I do the same thing in the tube biz, I don't involve the customer in the insurance claim.

[Boris Bubbanov]

Direct off their website, and I quote:
Shipping Charges—Taxes and Title

All items purchased from Musician's Friend are made pursuant to a shipment contract. This means that the risk of loss and title for such items passes to you upon our delivery to the carrier.

You, the buyer are responsible for your stuff as soon as its shipped!


This is called a "contract of adhesion". The legal department sticks that in there, to give MF the upper hand if they ever wanna get tough with somebody. There's also, no doubt, an arbitration clause which would prevent (in theory) the disgruntled customer from seizing the upper hand by going to a possibly even handed, actual court of law. If the MF lawyers forgot to put that crap in there and I managed those people, I would fire them, or risk being fired myself. Nobody else in a big corporation would do it differently; that's not how corporations operate.

But then MF doesn't use this advantage in 99.6 % of the cases. They take the guitar back, and they send another one.

Chris is right; this should be about letting the vendor deal with the shipper. If the shipper won't even talk to the buyer, forget about the buyer. It is up to the vendor to get satisfaction from the shipper. These shippers stink and they make a point of screwing everyone they can on these claims. I apologize if I misunderstood that someone only got $ 300 in coverage I should have known the carrier was trying to weasel out, offering half what they owed.

Everytime I receive something damaged, the vendor does a little something to make it right, his expense. I would break UPS's arms but he won't do it. I respect him, and at some point my friendship with him is more important than demanding he go to war against good for nothing carriers like UPS/Fed Ex/USPS.

[BigPapiFan]

Legal schmegal, let's talk about fairness. In the contract between buyer and seller, it is the seller's responsibility to deliver or have delivered the goods in their advertised condition. (Ebay and Paypal also see it this way.) Shipping insurance protects the seller against losses incurred during shipment, not the buyer.
Think about this: Suppose you bought a car at a dealership. The car was in fine shape during the test drive. Back at the dealership you agree on a price and pay. When you go to the lot to get in the car and drive away, you notice that somebody had smashed it up while you were inside. You want to back out of the deal but the dealer says, "Sorry it's yours now. Take it up with the insurance company!"

[trickness]

I may or may not convince you that you're wrong, and quite honestly, I don't really care. But the terms of my next transaction will be expressly stated.

If you don't care about opinions that differ from yours, then you probably shouldn't post polls on the internet soliciting other people's opinions.

[whitehall]

This is ebay ..remember ? the buyer just says the item arrived "not as described" files a claim with ebay and pp and his cc and gets all his money back.

[Jerrod]

If you don't care about opinions that differ from yours, then you probably shouldn't post polls on the internet soliciting other people's opinions.

Oh, I was interested in the opinions, just not interested in convincing you to alter your position.

[Guitar Josh]

Doug, I think you are flat wrong here. SNIP

All well and good TF, but the UCC applies to transactions between MERCHANTS (one who regularly deals in goods of the kind) and non private party transactions.

[Scumback Speakers]

Here's a perfect example of what I'm talking about, and I guarantee that 99.99% of retail purchases are this way and not the way you and everyone here think.

Anyone here buy stuff from Musicians Friend? Ever read their Sales contract terms? (Yes you are entering into a binding contract)
http://mf.custhelp.com/cgi-bin/mf.cfg/php/enduser/std_adp.php?p_faqid=1254

Direct off their website, and I quote:
Shipping Charges—Taxes and Title

All items purchased from Musician's Friend are made pursuant to a shipment contract. This means that the risk of loss and title for such items passes to you upon our delivery to the carrier.

You, the buyer are responsible for your stuff as soon as its shipped!

I rest my case. End of thread.

No matter what it says, they don't follow that, Doug. I've received shipping damaged guitars from MF, they sent another one free of charge, and I was reimbursed for shipping the damaged guitar back.

Oh I agree with you, especially in the case of manufacturing/wholesale. I just think that, in practice, with the general public, the seller is usually the one contracting with the shipper. Because of that, he has to be the one to handle the issues.

That's also correct. The seller has the contract with the shipper, not the buyer, so the buyer can't even discuss it unless the seller assigns the shipping claim to the buyer. And sometimes carriers won't allow you to do that, like UPS for example, with which I have EXTENSIVE DAMAGE CLAIM experience. We wound up in court over it, but that was well covered here four years ago. UPS lost for more than I sued for, in case anyone wants to know, due to their arrogant claims and crappy service.

Except that Musician's Friend also has a policy of taking back any goods that are damaged in delivery and providing a full refund. They even pay the return shipping.

This is what I experienced as well.

Bottom line for me, the seller and seller's choice of carrier is responsible. His guitar wasn't $600, come pick it up, it was a $600 (or more) including insurance, packing, shipping, etc. That made him liable up until it got to the buyer safely, which it did not.

Granted, without outside box damage, there was no reason for the buyer to open the box in front of the carrier to check to see if it was ok, either, but I'll bet he does that in the future after this experience!

[Craig Walker]

The guitar was insured for the full purchase price of <EDIT> $600. FedEx says they don't pay when the carton doesn't show damage. Unfortunately, the guitar was apparently dropped, and the neck joint of a set neck guitar is destroyed. FedEx claims they are going above and beyond to make any sort of payment.

I'm not sure what it matters who paid for shipping. You're gonna have to explain that one to me.



This is the way FedEx rolls. They suck.


If you scream loud enough, long enough, they'll eventually pay.

[pickaguitar]

Who would argue that it is the buyers problem?

Definitely between the seller and shipper

[Doug's Tubes]

No matter what it says, they don't follow that, Doug. I've received shipping damaged guitars from MF, they sent another one free of charge, and I was reimbursed for shipping the damaged guitar back.



That's also correct. The seller has the contract with the shipper, not the buyer, so the buyer can't even discuss it unless the seller assigns the shipping claim to the buyer. And sometimes carriers won't allow you to do that, like UPS for example, with which I have EXTENSIVE DAMAGE CLAIM experience. We wound up in court over it, but that was well covered here four years ago. UPS lost for more than I sued for, in case anyone wants to know, due to their arrogant claims and crappy service.



This is what I experienced as well.

Bottom line for me, the seller and seller's choice of carrier is responsible. His guitar wasn't $600, come pick it up, it was a $600 (or more) including insurance, packing, shipping, etc. That made him liable up until it got to the buyer safely, which it did not.

Granted, without outside box damage, there was no reason for the buyer to open the box in front of the carrier to check to see if it was ok, either, but I'll bet he does that in the future after this experience!

I'm not disputing anything you are saying here. MF has specific contract terms spelled out on their website which say that the buyer is entering into a "shipment contract" which means MF bears the risk of loss up until the goods arrive at the shipper. The buyer has title while in transit to his destination, and the insurance is there to protect the buyers property. This is a standard sales contract, but that doesn't mean that MF can't replace your item and do what they feel is necessary to complete the transaction that is satisfactory to both parties.

[Scumback Speakers]

Doug: fair enough!

Jerrod: IMO, the seller isn't getting full reimbursement for one of two reasons.

1) The guitar wasn't packed right, and Fedex's system proved that. Neither Fedex wants to pay, nor the seller.

2) The seller is getting full reimbursement and isn't telling you. As far as I know, you can't even talk to Fedex unless he's assigned the claim to you fully. If he's done that, then you can bitch up a storm until you get fully reimbursed. But my guess is the packing wasn't done right, so Fedex won't come to the table, and the seller knows it, so I wouldn't accept the claim responsibility and let the seller off the hook.

I've never had Fedex not pay the full insured amount on a damaged package if it was due to their handling and not the fault of the packer (seller usually).

I've only had five claims in 7 years though, and I was fully reimbursed for all of them, some of them two years before I started the speaker company, so it's not like I was doing as much business with them as I'm doing now. But over 3000 shipments later, five claims isn't very much. Two of them were from other folks packing (no names, I still do business with them), three were packages I packed that Fedex damaged.

I was still fully reimbursed for all of them, though. Try that with UPS.

[Jon Silberman]

I love it when folks quote the Uniform Commercial Code in these threads - brings me back to law school (and that's quite a trip back at this point!).

Bottom line, though, is that the UCC is what controls (in states where it does) in the absence of express contract language to the contrary. So, as far as MF and others with superceding contractual terms, my vote is with Doug.

I do not believe a contact of adhesion argument would be likely to succeed under these circumstances.

[Guitar Josh]

Who would argue that it is the buyers problem?

Definitely between the seller and shipper

I would, because that's what insurance is for. Generally speaking, a seller's liability is only to bring the item safely to the carrier. After that, because the seller doesn't exercise any control over the manner of shipment, his liability would be absolved absent any supervening agreement.

Now, whether a seller SHOULD ETHICALLY take responsibility, that's a whole other argument. And not all that crystal clear. After all, how fair is it to penalize a guy who well-packed an item, brought it to a reputable carrier, only to have some warehouse guy 1,000 miles away act negligently and destroy the parcel?

That's what insurance is for people. Historically, insurance protects a BUYER from risk of loss, not a seller.

[Jon Silberman]

You can (and always have been able to, for as long as it's existed) buy insurance for anything, as buyer or seller.

[Doug's Tubes]

Doug: fair enough!

Jerrod: IMO, the seller isn't getting full reimbursement for one of two reasons.

1) The guitar wasn't packed right, and Fedex's system proved that. Neither Fedex wants to pay, nor the seller.

2) The seller is getting full reimbursement and isn't telling you. As far as I know, you can't even talk to Fedex unless he's assigned the claim to you fully. If he's done that, then you can bitch up a storm until you get fully reimbursed. But my guess is the packing wasn't done right, so Fedex won't come to the table, and the seller knows it, so I wouldn't accept the claim responsibility and let the seller off the hook.

I've never had Fedex not pay the full insured amount on a damaged package if it was due to their handling and not the fault of the packer (seller usually).

I've only had five claims in 7 years though, and I was fully reimbursed for all of them, some of them two years before I started the speaker company, so it's not like I was doing as much business with them as I'm doing now. But over 3000 shipments later, five claims isn't very much. Two of them were from other folks packing (no names, I still do business with them), three were packages I packed that Fedex damaged.

I was still fully reimbursed for all of them, though. Try that with UPS.

Absolutely 100% agree with this. This was a point I wanted to address. In the OP's example, Fedex claimed no damage to the box, and therefore no liability. In my mind, if the box took a hit and snapped the neck, that guitar was not packed properly and the seller is liable for negligent packing. I see poor packing a lot. UPS's favorite excuse to deny a claim is that original packing material wasn't used.(in the case of a Gretsch guitar lets say). Now the seller can be a prick, or own up to their mistake and make the buyer whole, which I would definitely do. But we pack properly here so I never worry!

[Guitar Josh]

You can (and always have been able to, for as long as it's existed) buy insurance for anything, as buyer or seller.

Exactly. The parties are able to allocate risk of loss in any manner they choose.

[Doug's Tubes]

Exactly. The parties are able to allocate risk of loss in any manner they choose.

My favorite buyers are the international ones that want you to undervalue the shipment for customs purposes, or want you to use a service like USPS that has maximum insurance limits way below the value of the sold item. We get paid by wire transfer on those........

[Guitar Josh]

My favorite buyers are the international ones that want you to undervalue the shipment for customs purposes, or want you to use a service like USPS that has maximum insurance limits way below the value of the sold item. We get paid by wire transfer on those........

:thud

Smart man.

[Antelope]

This seems to be a gray area although it shouldn't be. It has nothing to do with what anyone thinks the right thing to do should be. The Uniform Commercial Code governs these areas, of course rules are different when transactions occur between private parties and when merchants are involved. No one should assume anything, agreements should be made before a sales transaction is entered into.

The party that bears the risk of loss depends on when title for the goods passes from one party to another.

The results of this poll indicate that the majority of folks here may have it wrong. Example. When I order tubes lets say from the JJ factory in Slovakia, title to my tubes passes to me when the containers are delivered to the shipper. It is my responsibility to insure them properly. I could pick up my tubes at JJ's loading dock, but I have instructed them to either select a shipper or use my own carrier. No manufacturer would sell goods any other way, the term is FOB Origin(title passes to buyer when shipped) or FOB destination(seller retains title to goods and bears the risk of loss until delivered to buyer).
http://en.wikipedia.org/wiki/FOB_(shipping)

International shipments have Incoterms as shipping standards.

http://www.foreign-trade.com/reference/incoterms.cfm

So don't assume anything, make sure you understand at what point you own your goods before you enter into a sales transaction.

This is right. The application of it here is harsh to the buyer, but this is generally the default where the parties don't affirmatively contract for risk of loss to stay with seller until delivery by the carrier. The reason generally cited is that the seller and buyer are usually far apart, and the buyer is in the better position, because he has the good in question, to make a claim with the insurer and/or carrier.

[Antelope]

That's a very good question, I've been trying to remember what rules govern sales transactions between private parties where nothing is stated. The UCC is a huge document.

It's Article 2 of the UCC.

[Julia343]

Well, if the shipping companies are only going to pay 50% of the item value, then it only leads to padding of the actual sale price when one purchases insurance on it.. example: You paid $600 for the instrument. I need the money. Because of this, when I ship the item I have it insured for $1200. That way if they only pay out 50% you get your money back. The only people that make out are the insurance carriers whose job it is to screw people because they got paid probably double what they should have. Why don't they just jack up the rates and fully cover their large end of year bonuses?

The seller isn't the bad guy here. The item was shipped FOB seller. The carrier is the bad guy. Put it in perspective.

It's kinda like that protection insurance the mob sells.

Perhaps the solution for shipping guitars is to include a charge for a hard case or at least a hard gig bag (like the Gator). Something that protects the neck of the instrument. Then pack this or have the shipping point pack this in a box with appropriate packing material. That way unless it is really mishandled the instrument should arrive intact.

So would you pay $60 extra for a hard gig bag to make sure your item got there?

[Jerrod]

Doug: fair enough!

Jerrod: IMO, the seller isn't getting full reimbursement for one of two reasons.

1) The guitar wasn't packed right, and Fedex's system proved that. Neither Fedex wants to pay, nor the seller.

2) The seller is getting full reimbursement and isn't telling you. As far as I know, you can't even talk to Fedex unless he's assigned the claim to you fully. If he's done that, then you can bitch up a storm until you get fully reimbursed. But my guess is the packing wasn't done right, so Fedex won't come to the table, and the seller knows it, so I wouldn't accept the claim responsibility and let the seller off the hook.

I've never had Fedex not pay the full insured amount on a damaged package if it was due to their handling and not the fault of the packer (seller usually).

I've only had five claims in 7 years though, and I was fully reimbursed for all of them, some of them two years before I started the speaker company, so it's not like I was doing as much business with them as I'm doing now. But over 3000 shipments later, five claims isn't very much. Two of them were from other folks packing (no names, I still do business with them), three were packages I packed that Fedex damaged.

I was still fully reimbursed for all of them, though. Try that with UPS.

The seller signed a form, and the claim reimbursement check was sent directly to me. He and I may disagree on how to finalize the settlement, but I don't believe he has lied or been disingenuous.

[Jerrod]

I would, because that's what insurance is for. Generally speaking, a seller's liability is only to bring the item safely to the carrier. After that, because the seller doesn't exercise any control over the manner of shipment, his liability would be absolved absent any supervening agreement.

Now, whether a seller SHOULD ETHICALLY take responsibility, that's a whole other argument. And not all that crystal clear. After all, how fair is it to penalize a guy who well-packed an item, brought it to a reputable carrier, only to have some warehouse guy 1,000 miles away act negligently and destroy the parcel?

That's what insurance is for people. Historically, insurance protects a BUYER from risk of loss, not a seller.

I strongly disagree. The seller chose the carrier. The carrier is performing a service for the seller. The seller may not exercise control over the manner of shipment, but the carrier is acting on behalf of the seller, not the buyer.

[Travst]

All the legal wrangling aside - I think the real issue here is how much your time is worth. How much time are you willing to spend on this to recoup $150? I tend to think of these things as business decisions... I'm a simple man. ;)

[Guitar Josh]

I strongly disagree. The seller chose the carrier. The carrier is performing a service for the seller. The seller may not exercise control over the manner of shipment, but the carrier is acting on behalf of the seller, not the buyer.

You seem to be trying to imply an agency relationship. There is none. There is only a common carrier relationship.

The carrier is acting on behalf of itself.

[Guitar Josh]

All the legal wrangling aside - I think the real issue here is how much your time is worth. How much time are you willing to spend on this to recoup $150? I tend to think of these things as business decisions... I'm a simple man. ;)

The one time I had an issue with this, about 7-8 years ago, I got $900 back on a $1200 insured item (pulled the "improper packing" excuse. I'm sorry my packing didn't survive a 30 foot fall from negligent employees). Anyway...the way I viewed it was that the buyer was out $1200. If I gave him $1050, $150 out of my pocket, then we were both out $150, instead of one of us being out $300. IMHO, it was worth it for my selling reputation at the time and was not a huge sum of money.

However, even back as a young lad, I did not feel like I was "legally" obligated to give him anything other than what the insurance paid. I did it because it was worth $150 to resolve what had been an almost 3 month ordeal.

FWIW, buyer almost didn't take that, but I held firm and common sense prevailed.

[Scumback Speakers]

Well, if the shipping companies are only going to pay 50% of the item value, then it only leads to padding of the actual sale price when one purchases insurance on it.

You have to prove the value of what you claimed for insurance. That means a receipt that can be tracked. Nice try!

The seller isn't the bad guy here. The item was shipped FOB seller. The carrier is the bad guy. Put it in perspective.
You don't know if the seller shipped it FOB, that's an assumption. The seller still needs to properly pack the guitar to withstand the carrier's shipping system, which he chose. Put that in perspective.


Perhaps the solution for shipping guitars is to include a charge for a hard case or at least a hard gig bag (like the Gator). Something that protects the neck of the instrument. Then pack this or have the shipping point pack this in a box with appropriate packing material. That way unless it is really mishandled the instrument should arrive intact.

So would you pay $60 extra for a hard gig bag to make sure your item got there?

You can pack a guitar properly into just about anything, including a gig bag in a cardboard box. But you also have to loosen the strings to relieve the tension on the neck, support the neck fully, not just in two spots. And you have to give it a good 3-4 inches all the way around the gig bag, less if it's a hardshell guitar case, but it still will need two inches in any case.

I've packed a few guitars, some that went overseas. None that were ever damaged.

There's quite a few of you on this thread that aren't addressing the issue of how the guitar was packed. If the box showed no damage, then it landed flat. With a properly supported neck, that won't kill it. It's fairly obvious that the guitar was not packed properly to me. Although I'd imagine I have a bit more experience with packing than most. But no matter how you look at it, buyer paid $600. Item was damaged through no fault of buyer. Seller gets to keep his $600, buyer gets $450 and hunk of wood.

How many of you would sign up for that as a buyer?

Yeah, that's what I thought...

Or let's take it a step further. You buy a speaker from me. I pack it poorly, it gets damaged. Fedex gives you 50% I give you 25%, you're out 25% of the payment for the speaker you never got.

How many think I owe the buyer another speaker? That's right...everyone. So frankly I don't know how any of you can blame the buyer. Sheesh.

[Travst]

I went through this with an Ebay seller last year. I was shipped a Laney Lionheart that arrived with only faint sounds coming from the amp. The seller said everything was perfect when shipped and UPS wouldn't pony up without me shipping the amp back to the shipper and having him go through the claims process... although they crawfished on this silly answer later. Eventually, I got fed up with the finger pointing and had a tech fix the thing for $152. Of course, no one was going to pay for my costs. It simply wasn't worth the ordeal, as Josh stated above, to attempt to recover the money. When my buyers have had shipping damage (twice), I've worked it out to their satisfaction, but that's just me. I want to be fair, and fair is a bit subjective.

[Bryan T]

Mental note to self: when buying a guitar in the Emporium, check this thread to see who not to buy from.

[Guitar Josh]

You don't know if the seller shipped it FOB, that's an assumption. The seller still needs to properly pack the guitar to withstand the carrier's shipping system, which he chose. Put that in perspective.


Let me flip this for you. Let's say the buyer says "I want FedEx". Seller takes it to FedEx. Parcel is appropriated packed. Item is damaged. What then?

[Scumback Speakers]

Let me flip this for you. Let's say the buyer says "I want FedEx". Seller takes it to FedEx. Parcel is appropriated packed. Item is damaged. What then?

If the buyer demanded Fedex, then it's his choice, he deals with the claim. If the seller made the decision, it's his responsibility. Fair is fair.

I use Fedex for domestic shipping, USPS for international. I NEVER use UPS, and if told I have to, I inform the client that they are the worst carriers in LA, and while they may be great in their area, they suck major bunghole here. And if it has to ship from here...well...then they're on their own for any damage, I won't be involved at all. Been there, done that. For those who are wondering, my last tally with UPS in Los Angeles is 15 shipments, nine damage claims. Any questions?

The seller still has to pack the guitar properly, no matter who the shipping carrier is. People bitch about how much I charge for packing guitars. It's like $25 to do it right with a hard shell case, more if it's a gig bag.

But then you never see me start threads like this due to my packing, or shipping damage claims, either. I learned from other people's mistakes. :D

[Jerrod]

Mental note to self: when buying a guitar in the Emporium, check this thread to see who not to buy from.

Don't think I haven't made that note also.

[Guitar Josh]

If the buyer demanded Fedex, then it's his choice, he deals with the claim. If the seller made the decision, it's his responsibility. Fair is fair.

I don't agree that in this situation fair is fair my friend. Despite any reputation, Fedex and UPS are well known highly regarded international shippers. It's one thing to take it to Don's Shipping Express. But FedEx and UPS are totally different. It's why you buy insurance. A seller's responsibility is to pack it well and take it a reputable shipper. Beyond that, he has no control. If something goes wrong, you invoke the insurance.

Now I'm not saying that a seller's responsibility ends there. He needs to back up his service by cooperating with the insurance process and be available. He also needs to pay out any funds recovered.

There is NO agency relationship under the law. Agency relationship require ABC - Assent, Benefit and Control. There is, at the very least, no Control (the right to control the agent by supervising the manner of performance). Where there is no control, the relationship is not one of agency but of independent contractor, therefore no principal liability.

I know we have taken a very simple question and made it unnecessarily complicated. I think we can all agree, at a bare minimum:

1) Pack extremely well
2) Purchase insurance in full
3) Work fairly with a buyer in the event of a problem (including giving due consideration to a full refund and waiting reimbursement from the shipper)
4) Pay any recovered funds promptly

[Scumback Speakers]

I don't agree that in this situation fair is fair my friend. Despite any reputation, Fedex and UPS are well known highly regarded international shippers. It's one thing to take it to Don's Shipping Express. But FedEx and UPS are totally different. It's why you buy insurance. A seller's responsibility is to pack it well and take it a reputable shipper. Beyond that, he has no control. If something goes wrong, you invoke the insurance.

Now I'm not saying that a seller's responsibility ends there. He needs to back up his service by cooperating with the insurance process and be available. He also needs to pay out any funds recovered.

Can't agree, Doug. If I ship exclusively Fedex for a reason, I can also take the responsibility of a full refund, or replacement if there's a problem during shipping.

If the client insists I use something other than my usual trusted shipper, then he's over-ruled my accumulated business sense and experiences and he's liable. I've had it happen a long time ago. And UPS screwed the buyer. They didn't come back to me, though, because I clearly spelled out that it was their choice to use UPS, and they'd be on their own.

I know how to pack speakers and guitars, so the point is moot. Those who sold to the OP didn't. And since it didn't matter, using your scenario, who shipped it since they're well regarded (disagree on that, too), then there's still the matter of making the buyer whole, not 50 or 75%. The buyer's money was worth full value to the seller, so the seller's item should be worth full value of the payment to the buyer.

That's the entire crux of the biscuit here. Seller got what he asked for, buyer didn't. It's the seller's problem to resolve, no matter what.

But hey, that's just me. I realize my ideas are old fashioned, outdated and unpopular. :D

[Jerrod]

I suspect that my observations won't end the debate, but here's what I've learned.
1. There are a lot of opinions about what's fair. You're all entitled to those opinions.
2. The law may or may not correspond to the prevailing opinion about what fair is.
3. If your opinion of what fair is differs from the law, you're entitled to expressly state your terms and conditions as part of the sale. I hate to have a TGP deal with a lot of fine print, but it's readily apparent that a few things are going to go in a Word document for me to have handy the next time I do a deal... especially if I'm the buyer.

Caveat emptor, have a nice day, etc, etc!

Thanks all,
Jerrod

[Guitar Josh]

I suspect that my observations won't end the debate, but here's what I've learned.
1. There are a lot of opinions about what's fair. You're all entitled to those opinions.
2. The law may or may not correspond to the prevailing opinion about what fair is.
3. If your opinion of what fair is differs from the law, you're entitled to expressly state your terms and conditions as part of the sale. I hate to have a TGP deal with a lot of fine print, but it's readily apparent that a few things are going to go in a Word document for me to have handy the next time I do a deal... especially if I'm the buyer.

Caveat emptor, have a nice day, etc, etc!

Thanks all,
Jerrod

Beautifully stated. :banana

[Guitar Josh]

Can't agree, Doug. If I ship exclusively Fedex for a reason, I can also take the responsibility of a full refund, or replacement if there's a problem during shipping.

If the client insists I use something other than my usual trusted shipper, then he's over-ruled my accumulated business sense and experiences and he's liable. I've had it happen a long time ago. And UPS screwed the buyer. They didn't come back to me, though, because I clearly spelled out that it was their choice to use UPS, and they'd be on their own.

I know how to pack speakers and guitars, so the point is moot. Those who sold to the OP didn't. And since it didn't matter, using your scenario, who shipped it since they're well regarded (disagree on that, too), then there's still the matter of making the buyer whole, not 50 or 75%. The buyer's money was worth full value to the seller, so the seller's item should be worth full value of the payment to the buyer.

That's the entire crux of the biscuit here. Seller got what he asked for, buyer didn't. It's the seller's problem to resolve, no matter what.

But hey, that's just me. I realize my ideas are old fashioned, outdated and unpopular. :D

I'm not sure where you got "Doug" from Guitar Josh, but that's okay :beer

P1 - Seller can always take responsibility, that's never in question.

P2 - Sounds like you had an agreement, which was exercised.

P3 - I think most of us can agree that no matter how well you pack something, UPS and FEDEX can find a way to damage it :D

P4 - Clearly I disagree :)

P5 - It's not old fashion to run your business like that! A reputation of taking care of buyers is very valuable to any business.

[Scumback Speakers]

Whoops! Sorry Josh...I'd replied to Doug so many times, I guess my fingers had keyboard memory. LOL

Can't agree with P4, eh? Ok, the next time you're on the receiving end of the OP's predicament, let's see if you start a thread, or just "take it as a life lesson" for the loss.

My guess is you won't. I know I wouldn't, and haven't.

[rivaeast]

It's the seller's responsibility until it's delivered. He owes you a refund.

I think I could argue this point. If it is disclosed as FOB - you then own it the minute it leaves his hands. Your responsibility to deal with the loss and damage. He should be prepared to assist you in the claim.

[Jerrod]

I think I could argue this point. If it is disclosed as FOB - you then own it the minute it leaves his hands. Your responsibility to deal with the loss and damage. He should be prepared to assist you in the claim.

I wasn't sold as FOB.

[Guitar Josh]

Whoops! Sorry Josh...I'd replied to Doug so many times, I guess my fingers had keyboard memory. LOL

Can't agree with P4, eh? Ok, the next time you're on the receiving end of the OP's predicament, let's see if you start a thread, or just "take it as a life lesson" for the loss.

My guess is you won't. I know I wouldn't, and haven't.

I've made it pretty clear throughout this thread that I never agreed with the point made in #4. :D

I would let the process play out a little. I wouldn't be immediately demanding a refund. If I felt like I wasn't being treated fairly, then we'd go from there.

But you gotta realize - unless insurance pays out in full, SOMEONE is going to lose. There is ample argument on both sides as to who is the more "deserving" party. The law is fairly clear, but not everything is about the law (unless it is about the law).

As I stated before, in this situation as a seller, I found a workable solution. Hopefully others would do the same for me.

[Guitar Josh]

I wasn't sold as FOB.

FOB is generally the default method in commercial transactions in the US. It doesn't need to be stated, unless the parties agree differently.

[Jerrod]

FOB is generally the default method in commercial transactions in the US. It doesn't need to be stated, unless the parties agree differently.

You can say it's the default for commercial transactions, but over 75% of the voters in this poll think their default is something different. Again, I will expressly state my terms going forward.

[Guitar Josh]

You can say it's the default for commercial transactions, but over 75% of the voters in this poll think their default is something different. Again, I will expressly state my terms going forward.

I'm not saying it. It's not my opinion. It's reality.

Fortunately the laws in this country are not based on unscientific polls conducted in casual discussion forums.

[Jerrod]

I'm not saying it. It's not my opinion. It's reality.

Fortunately the laws in this country are not based on unscientific polls conducted in casual discussion forums.

You say that dismissively, but the FOB default isn't magic, or something inherent to the nature of shipping goods. It's a convention that's arisen over time, and just as people chose to codify it, they could choose to change it. :rolleyes:

[Tonefish]

All well and good TF, but the UCC applies to transactions between MERCHANTS (one who regularly deals in goods of the kind) and non private party transactions.

You're kidding, right? You don't think someone selling a guitar to someone else is commerce?

[Guitar Josh]

You're kidding, right? You don't think someone selling a guitar to someone else is commerce?

:thud

Re-read and re-post.

[Guitar Josh]

You say that dismissively, but the FOB default isn't magic, or something inherent to the nature of shipping goods. It's a convention that's arisen over time, and just as people chose to codify it, they could choose to change it. :rolleyes:

:rolleyes: indeed.

[Tonefish]

:thud

Re-read and re-post.

You're kidding, right? You don't think someone selling a guitar to someone else is commerce?

[Boris Bubbanov]

I do not believe a contact of adhesion argument would be likely to succeed under these circumstances.


No, and the poor sucker isn't gonna beat the arbitration deal either. I thought that was self evident.

Musicians Friend takes the damaged guitars back and provides another, so what is your point?