what is the proper protocol

Viridian, since no Audiogon member must agree to the quidelines to which you refer as a condition of one's membership, I submit that those guidelines do not constitute an agreement between a member and Audiogon, nor do they constitute terms of use. Therefore, no member is bound by them.

They are quidelines of conduct based on an honor system. Period.

Why you continue to hammer these guidelines into intractable rules by which we must all adhere is known only to you.

Recognizing that Audiogon is not a democracy, and the terms of use are dictated by the Audiogon owners/founders, I propose the following:

All prospective Audiogon members, and all present Audiogon members shall accept or reject the Audiogon Seller and Buyer guidelines as terms of use for all paid listings and transactions resulting from Audiogon listings. Acceptance of the Audiogon Buyer and Seller guidelines shall be binding. Present Audiogon members shall be notified via email of the changes to the terms of use and shall have the opportunity to accept or reject the Seller and Buyer guidelines. Those present members who decline the revised terms shall have their memberships revoked. Members who after completing a dispute process are determined to have violated the terms of use shall have their memberships revoked.

Sincerely,
Your friendly local Libertarian.

. . . well I thought I posted this last night, but it must have gone into a black hole.

The contract between seller and common carrier and the contract between seller and buyer are two different contracts.

Just because the seller agrees with the carrier that he bears risk of loss as it relates to their contract, he does not necessarily agree that he bears risk of loss in the contract with the buyer.
Nhtran (Threads | Answers)

thanks NT, I think our difference of opinion is based on the fact that you're making a legal argument, and I think this discussion is about expectations we have on this site, and what are fair, good faith practices. I'm not a lawyer, though you appear to be.

Regardless, the sellers I feel comfortable dealing with are those who stand behind their deal all the way, not those who wash their hands of responsibility once the item is handed to UPS.

As for parsing words in Audiogon terms of use doc's, I think the "Shipping Policy" which is published on the site FAQ is unambiguous, would appreciate other views of it. It's probably not legally enforcable, but a clear articulation of expectation. Here's the link again:
http://www.audiogon.com/cgi-bin/faq.pl?Sellers/Shipping&1065032072&actg#1

Tvad, try signing up like you are a new member, you will be asked to agree to the rules of Audiogon as a condition of membership. Please, just try it.

Sincerely,
Your friendly local heretic.

P.S. This may be known only to me, but it seems that there is some agreement by other members who must not understand my motivations either ;^)

Very interesting thread and educational too. Previously I had only contemplated an item being damaged in transit, not lost or misplaced. I clearly underestimated the ingenuity of UPS and FedEx.

As to the debate on whether the seller or buyer bears the risk of loss in transit, I did a little research (by no means complete) and came up with the following:

1. Mitch2's observation that the item belongs to the seller (and therefore the seller bears the risk of loss) until the item is delivered is correct. Nhtran’s assertion on 07-21 that, unless otherwise negotiated, the BUYER bears the risk of loss during transportation is also (largely) correct. How can these apparently contradictory statements both be correct?

All states have adopted the Uniform Commercial Code, with some local variations. I have only the California version available, but I think the following provision is the same in most other states.

“Unless otherwise agreed:
(a) The place for delivery of goods is the seller’s place of business or, if he has none, his residence.”

Notwithstanding that the seller arranges transportation, he is deemed to have delivered the goods at his residence, so the buyer would bear the risk of loss in transit unless otherwise agreed.

2. So, have the parties agreed otherwise? That was the issue raised by Nhtran in his posts today. I agree with his statement that the contract with the carrier is separate from the contract with the buyer and does not place the risk of loss on the seller. I don’t agree with the rest of his observations.

a. "May be you should read the FAQ more carefully before you comment. There is a big difference between 'should' and 'must'. "Should" is aspirational but not required, "must" is required."

As far as risk of loss is concerned, I read the FAQ and it reads exactly as previously quoted by Bdgregory. The operative provision is

"The buyer and seller will determine which party is responsible for paying the shipping charges. Regardless of this determination all items shipped will be F.O.B.* destination. In other words it will ALWAYS be the responsibility of the seller to guarantee that items shipped will be as described and fully functional upon arrival."

The word “will” appears several times, but the word “should” does not appear at all.

b. "Audiogon 'customary practice' won't help anyone in a dispute."

If by "help" Nhtran means support your legal position, I disagree. I believe that the standard practices expressed in the FAQ become part of the contract between the seller and buyer, unless otherwise agreed. When the written portion of a contract (in this case, a classified ad and an exchange of e-mails) is silent on a particular subject, courts will usually refer (or defer) to practices that are customary in a trade or other association to which the contracting parties belong and under whose auspices they are conducting their transaction. Also, contracts for the sale of goods don’t have to be in writing to be legally binding - written contracts are just much easier to enforce because its harder to dispute their terms later on.

If you want evidence of the importance of trade practices in the law of contracts, look no further than the creation of the legal concept of a contract itself. In the 15th and early 16th centuries, English law courts refused to recognize the concept of a contact (that mutual promises were enforceable), so merchants formed an association with its own procedures that recognized and enforced contracts among its members, creating the “law merchant.” Concerned about competition from this early version of alternative dispute resolution, a few decades later the law courts decided that contracts were enforceable after all and adopted many of the rules and practices of the law merchant.

Tvad’s assertion that the guidelines expressed in the FAQ are not compulsory is also probably true, but that simply means that the seller and buyer are free to agree to something different from the guidelines. However, in the absence of a specific agreement varying from the guidelines, those parts of the guidelines that are affirmatively stated (not merely suggested) probably are part of the contract.

07-25-06: Viridian
Tvad, try signing up like you are a new member, you will be asked to agree to the rules of Audiogon as a condition of membership. Please, just try it.

Thanks for pushing me to look at that link. I had forgotten about the Terms Of Use. However, now having read it again, there is nothing in the terms that requires a Seller to offer an immediate refund to a Buyer upon the loss of an item. The Seller Guidelines are not part of the terms, nor are the guidelines linked to the terms of use via HTML. There is a link in the Terms of Use that links to Auction Rules, but the Auction Rules mention only the Honor System, which is a paragraph I have previously posted.

Finally, the Detailed Terms of the Agreement section of the Terms of Use explains it clearly:

Audiogon is only a Venue
Our web site acts as a venue to allow eligible members to offer, sell, and buy audio related products via "online auctions" or "classifieds." We are not involved in the actual transaction between buyers and sellers. As a result, we have no control over the quality, safety or legality of the items advertised, the truth or accuracy of the listings, the ability of sellers to sell items or the ability of buyers to buy items. We cannot ensure that a buyer or seller will actually complete a transaction.

I like to believe that Audiogon members conduct themselves honorably in all transactions and disputes. However, it does appear that in those few rare occasions when transactions go wrong, members cannot look to Audiogon for a remedy.

In closing, I have always conducted myself honorably in all transactions as a buyer and seller. Conflicts and/or problems have been resolved honorably, but the resolutions may not have followed the Audiogon FAQ guidelines. If that is grounds for cancellation of my membership (I submit that it is not), then I will freely relinquish my membership.