Disclaiming Warranties, Breach of Warranty, Implied Warranties, and "As Is" Sales

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Q: "I'm selling something that I think is a genuine antique, but I'm not sure because I'm really not an expert in these things. Is it okay to list the item "as is," say that I don't know anything about the item, and ask the buyer to rely on the photos to determine if it's real or not?"

A: Doing so won't get you into legal trouble on eBay, although it won't do much to build your buyers' confidence. Unless you're very lucky and you've stumbled across a missing Michelangelo that every knowledgeable art buyer who views your listing recognizes instantly, resulting in a feeding frenzy among buyers (don't laugh—something like this happens once in a blue moon on eBay when someone lists an "attic treasure"), you're probably not going to get much for this item. Most sellers who list items this way are, in my humble opinion, simply too lazy to take the time to research the item on eBay or offline to find out what they've got. With just an hour or two of effort, you should be able to learn enough about the item to write at least a basic description that will get you a few reasonable bids.

Also, note that while you can disclaim knowledge about an item, you cannot disclaim the authenticity or legality of an item—for instance, by saying, "I really don't know if this is an original Gucci handbag or not." As an eBay seller, you always warrant that an item you sell on eBay is original and that it may be sold legally. To see eBay's policy on this, go to pages.ebay.com/help/ policies/authenticity-disclaimers.html.

Q: "If I am handling an estate sale and I get a handbag with a Gucci label that doesn't look like a knockoff, how do I describe this item when listing it on eBay?"

A: Whatever you do, do not list it as a "genuine Gucci handbag" unless you are 100 percent sure it is one. If you don't have the time to get an expert opinion, list it as a used handbag, describe the circumstances under which you acquired it, take lots of detailed photos (including close-ups of any markings), and do not use the word Gucci in your listing title or item description. If knowledgeable buyers recognize this as a genuine Gucci handbag, they will bid accordingly and you will get the price you want without risking a misrepresentation of the item. And if even one person e-mails you saying the item is "clearly a knockoff," pull the listing until you can get more information.

Q: "I buy a lot of tag sale and estate items in bulk and frequently don't examine them very carefully before I post them on eBay. What I do instead is photograph the box and state clearly in the description that I haven't examined the condition of the item and that the sale is 'as is.' Still, a buyer complained that the box didn't include all the parts. Do I have to give him his money back?"

A: When you're talking about warranties, you should realize that there are two kinds: express and implied.

An express warranty is something you actually say in your listing description. So, for example, if you state in your description that something is "100 percent complete and original," the buyer is entitled to a full refund if he or she can show that even a single part—no matter how small and insignificant—has been replaced, repaired, or gone missing.

An implied warranty is something that you don't say outright in your listing but that the buyer has the right to assume, based on what you do tell them.

In this case, by photographing the box, you have made an implied warranty that the box contains all the contents it's supposed to have. This buyer was correct in accusing you of a breach of warranty, and you should give him his money back.

Now, you clearly said you had no idea of the condition of what was in the box, so if the box had contained all the required contents but the condition was just so-so, you would have been on stronger ground. But frankly, even in that case I probably would recommend that you return the buyer's money—any seller who's too lazy to open a box and see what's in it before putting it up on eBay is asking for problems. Who knows? There may have been something really great in that old box. Never judge a package by its label!

Q: "I sold an antique on eBay last week and the buyer called me to say the thing didn't work. I don't know much about these things, and I didn't say in my description that the item was in 'good working condition.' Do I have to give this buyer his money back?"

A: Absolutely. Even if you are not an expert in something mechanical, you should at least test it to make sure it works before putting it up for sale on eBay. If you can't do this (because testing it would be too difficult), then you should state clearly that you haven't tested the item and will gladly refund the buyer's money within x days of the listing close date if the buyer is not satisfied for any reason.

Q: "I recently sold an antique toy from the 1800s on eBay for quite a bit of money. The buyer complained that the toy was painted with lead paint and wanted her money back because she wouldn't allow her child to play with anything that had lead paint on it. Having children of my own, I sympathize completely, but I don't think I should give her money back because this was clearly an antique that children shouldn't be allowed to play with. Scraping off the paint would reduce the value of the toy significantly. Am I in the right here?"

A: In the answer to the previous question, I said that warranties in eBay listings can be either express or implied. One of the implied warranties that you make in every one of your eBay listings is something lawyers call the "implied warranty of fitness for a particular purpose." This means that if you know an object is normally used for a specific purpose, you warrant that the object can be used for that purpose unless you specifically tell the buyer that it can't be used for that purpose.

For example, let's say that I put up for sale on eBay "a genuine 1920s box of Arm & Hammer baking soda." I sell it to a buyer, who e-mails me the following week saying, "I want my money back! I put that box of Arm & Hammer baking soda in my refrigerator and it stinks!" Even though I intended to sell it as an antique and assumed that anyone buying an eighty-year-old box of anything would consider it such, I certainly do know that the biggest reason people buy Arm & Hammer baking soda is to deodorize their refrigerators. Silly as it may sound, I should have warned my buyer that the contents might not still be good.

When you sell toys on eBay—even antique ones—you have to consider the possibility that buyers want something their children can play with. After all, that's what toys are all about. I do know a few people who buy antique mechanical banks in poor to fair condition (which are basically worthless) precisely because they want to teach their children the value of saving money in a fun way and give their child the magic of playing with something over a hundred years old. (Personal note: When I was in fifth grade we studied ancient Rome, and the teacher one day brought in some genuine ancient Roman coins and passed them around. I cannot describe the magic of holding in your hand something that a gladiator, a Christian martyr, or even Julius Caesar himself may have held in his hands at some point. I've been hooked on history ever since....By the way, if any history teachers are reading this, you can buy genuine ancient Roman coins on eBay for about $2 each.)

I would give this buyer her money back, and when you list the item again, state specifically: "This is being sold as an antique; because it contains lead paint, it is not appropriate or healthy for children to play with."

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