Is a Private Seller Obligated to Issue a Refund for a Used Product

[jessy15]

My question involves a consumer law issue in the State of: California

I purchased a camera from the LetGo app. The listing on the selling and buying platform, Letgo, described it as in “excellent condition” and when I further inquired on its condition, the seller replied that is was “barely used”. During the pre-purchase, in person conversation, the seller mentioned that if anything was wrong with the camera to bring it back for a refund.

Within 2 hours after purchasing, the camera showed signs of a malfunctioning grip on the camera, which was not present at the time of inspecting the product prior to purchasing. It was not as advertised- “excellent condition” & “barely used”. On the same day, two hours later, I messaged the seller via LetGo that the grip on the camera was loose and falling off and that I would like to return. The seller acknowledged in writing “Ok, no problem”.

I have attempted to reach the seller various times through his cell, house number and the app. He has blocked my number and from the app as well. I do have the sellers information (address and full name)- can I file this case in small claims court? What is the likelihood of the judgement in my favor?

[Guybrush]

Yes - you can file. Question is; Is it worth it?

The verbal conversation is worthless - unless they agree they said what you claim they did.

The "ok, no problem" message you received is not that strong of a warranty.

What does the receipt say that you received? Does it say anything about returning it if it fails? Does it list the serial number of the camera? If not, could the seller claim you did a swap?

Your chances of winning in small claims is 50/50. If he doesn't show to court, you may get a judgment against him, and then you have to work to find him to get payment.

Heck, call Judge Judy - it may be easier.

[adjusterjack]

In a for sale ad the phrase "excellent condition" is called "puffing." "Puffing" is generally an expression or exaggeration made by a salesperson or found in an advertisement that concerns the quality of goods offered for sale. It presents opinions rather than facts and is usually not considered a legally binding promise.

You physically examined the item before buying. You did not get a written guarantee or refund agreement. Items sold between private parties are "as is." You will have difficulty overcoming that presumption in court.

However, you can educate yourself by reading California appellate case decisions regarding "puffing" in advertising at Google Scholar.

https://scholar.google.com/scholar?h...ing&oq=puffing

I don't have time to read them. I'll leave that to you. Note that California has a false advertising law that you can look up.

http://leginfo.legislature.ca.gov/fa...pter=&article=

[1claire]

Will it be better if you contact LetGo first before filing a case? Do you have the screenshot of the conversation? Maybe you can have it as proof. I feel like things like this can be settled without going to court.

[budwad]

In a for sale ad the phrase "excellent condition" is called "puffing." "Puffing" is generally an expression or exaggeration made by a salesperson or found in an advertisement that concerns the quality of goods offered for sale. It presents opinions rather than facts and is usually not considered a legally binding promise.

You physically examined the item before buying. You did not get a written guarantee or refund agreement. Items sold between private parties are "as is." You will have difficulty overcoming that presumption in court.

However, you can educate yourself by reading California appellate case decisions regarding "puffing" in advertising at Google Scholar.

Jack, you should read some of the case law. Perhaps you will change your mind.

Saying that the camera was in excellent condition was an affirmation of fact in the bases of the contract and the reliance on that statement does form an express warranty, IMO.

https://scholar.google.com/scholar_c...=en&as_sdt=4,5

[adjusterjack]

Could be argued both ways but I think the OP's case is week since he personally examined the item before buying.

[budwad]

I do agree with you. I was commenting on the law and thought I should point out that statements made by the seller can be considered a warranty rather than puffery.

[Guybrush]

statements made by the seller can be considered a warranty

Only if it was in writing or the seller admits to those statements.

Sounds to me like he did not put anything in writing and I doubt he will admit he gave a warranty.

[budwad]

Only if it was in writing or the seller admits to those statements.

Sounds to me like he did not put anything in writing and I doubt he will admit he gave a warranty.

Go back and read the case I linked to. It does not have to be in writing.

California Uniform Commercial Code section 2313, regarding express warranties, was enacted in 1963 and consists of the official text of Uniform Commercial Code section 2-313 without change. (3) In deciding whether a statement made by a seller constitutes an express warranty under this provision, the court must deal with three fundamental issues. First, the court must determine whether the seller's statement constitutes an "affirmation of fact or promise" or "description of the goods" under California Uniform Commercial Code section 2313, subdivision (1)(a) or (b), or whether it is rather "merely the seller's opinion or commendation of the goods" under section 2313, subdivision (2). Second, assuming the court finds the language used susceptible to creation of a warranty, it must then be determined whether the statement was "part of the basis of the bargain." Third, the court must determine whether the warranty was breached. (See Sessa v. Riegle (E.D.Pa. 1977) 427 F. Supp. 760, 765.)

And this from the same case:

It has even been suggested "that in an age of consumerism all seller's statements, except the most blatant sales pitch, may give rise to an express warranty." (1 Alderman and Dole, A Transactional Guide to the Uniform Commercial Code (2d ed. 1983) p. 89.)

[Guybrush]

Go back and read the case I linked to. It does not have to be in writing.

I agree, but a "statement" has to be admitted by the seller. In this case, what statement would the OP argue? If it was through a verbal discussion, then the seller would have to admit he said that for the court to determine whether it constituted an "affirmation of fact or promise" or "description of the goods". It is highly unlikely the seller will admit that. If you are referring to a written statement, then the only one mention was the "oh, okay" - which means nothing. If you are referring to the statement that the article was in excellent condition, then the definition of "excellent" comes into play. My 2000 Volvo is in "excellent" condition - for a 19 year old car, but that doesn't mean excellent compared to a new car. Excellent does not mean perfect nor having no faults. It is relevant only to the item and age. In China town, you can buy excellent Rolex watches all day for $20.