Who is entitled to site?

I come to terms..then someone bids..

[davewray]

I'll make this short, just want some opinions if you have any experience in these matters.

1. A guy on Ebay was selling his website.
2. I do research and decide to approach this guy through email.
3. After a dozen emails I give him an offer and he responds by accepting the offer.
3. The seller is a novice and forgets to take down his Ebay listing (which only had 10 hours left on it)
4. Sure enough, someone bids right at the end of the deadline. This bidder bids $500 more than my offer from the day before.

So, who is the seller entitled to sell the site to? Would it be me, the one who made a deal with him the day before through email...and it was agreed upon by him.

Or, would the bidder on Ebay be entitled to the website?

Thanks for your answers and responses.

Dave.

[lovethecoast]

The guy who bid through ebay, period. eBay frowns pretty heavily upon outside transactions.

[ogletree]

In reality the seller can sell to whoever they want to. I have done the same thing as a seller. I sold a site on ebay and a guy contacted me after the auction was over and offered way more than the auction ended for. I sold to the non ebay guy. The ebay person was very pissed and threatened all kinds of things. I never heard from them again. They did not even give me any feedback negitive or positive. I would not make a practice of this but one time is not going to kill you. My experience is just what happened to me I have no idea the legality of it. If there is a legal issuse it will be different in each state. Talk to a lawyer if you are worried about a lawsuit.

[zivkovicp]

depends who the seller wants to sell to.

bottom line is that he/she has two buyers to choose from. .. and if Ebay doesn't like it, who cares... it's not like it's a federal offense to sell your product outside of the auction, all they can do is cancel your account.

Discuss it with the seller if you really want the site bad enough, go after it.

[davewray]

Thanks for the responses guys. See, that's what is totally screwy here. I technically "bought" the site through a verbal agreement with the seller a day before auction end and BEFORE the bidder bid on it at Ebay. The seller, unfortunately, forget to take the listing down and someone actually bid on it. (It was his first sale on Ebay...novice mistake) I agree it's up to the seller who to sell the site to. But in the end, shouldn't he honour the first agreement for sale (which he made with me) regardless of any bids at later times?

Dave.

P.S. I do want the site..God, it was a good deal, and it's a great site with lots of potential (the seller needed to sell quick)

[bose]

I do want the site..God, it was a good deal, and it's a great site with lots of potential (the seller needed to sell quick)

Might cost you a little more, but have you considered buying it from the guy who just bought it on ebay?
It ain't over till...

[martingale]

If you have the agreement in email you have a case: You have a contract to buy the site. If he has some other deal with eBay that prevents him from living up to his end of the contract that is his problem, he may have to make some kind of restitution to you for his breach of his contract with you.

If it's verbal legally it's the same, but how would you prove it? He could just deny and you have no proof.

[davewray]

Bose, sure I want the site, but if I were to buy it from the guy who won the Ebay listing I'd be paying way more for it...I am a businessman afterall and paying more isn't my game if I don't have to.

Martingale...I have the email he sent me. I can prove without a doubt that it came from him. I talked to him on the phone. He felt terrible about the mix up (not taking listing off Ebay)...morally he wants me to have the site, but he's worried about the legal implications with regards to both Ebay and the auction winner.

Dave.

[lovethecoast]

All he's going to get on ebay is possibly a banned account. And since it's his first auction on ebay, I doubt that bothers him.

Now if he's desperate, the $500 difference might be enough to keep his deal with the person that has probably at this point, already paid him.

[incrediBILL]

Seems to me the LAW normally favors the first buyer, but the special circumstances here going against you is you actually found it on eBay and side-stepped the auction.

[bose]

I am a businessman afterall and paying more isn't my game if I don't have to.

Understable. I was only suggesting a plan B.

If the time stamp of his "acceptance" email predates the subsequent "offer" he received on eBay, you certainly have a rightful claim. The real question is, is he going to live up to it? His failure to close the auction on eBay could be intentional, or simply be an oversight as he claims. Unless any money changed hands, it is often difficult to enforce these kinds of things. IANAL and I have not read what he emailed you, but as I see it, what you had from him may probably be construed as a letter of intent, and not a binding contract. A letter of intent and a binding contract are two diferent things.

He would be more inclined to let you have the site and put up with whatever eBay throws at him if you make the deal a little sweeter for him. If the site indeed has a lot of potential, consider making a good will gesture by offering to cover the difference between your bid and the bid he received on eBay, and some more. Give him reasons to do it your way.

he's worried about the legal implications with regards to both Ebay and the auction winner.

It is an issue of his contract (terms of eBay user agreement) with eBay. He may be breaching terms of a contract, not breaking any Law. IIRC, there is no exclusivity clause there. Have him explain to eBay (a) he is a n00b there (b) he feels obliged to honor the agreement he has with you, (c) offer to pay eBay the commission.

Again, try to work with him. Give him reasons do it your way, Dave. Afterall, all business transactions have a human angle to them. Think of it this way: how motivated he would be if he stands to lose money, and invite trouble with eBay. Unless this is an up and up guy who believes in doing it right, every single time, he may hide behind the so called "potential of trouble with ebay" or plead ignorance.

[kevinpate]

just to be contrary because it's been a long day,

is the seller truly a noob rube, or is the game afoot?

I have no dog in the hunt, so I can toss this gernade from the sidelines
(a) you offer
(b) seller accepts
(c) someone says to seller the site was probably
worth some 500 more than he got
(d) a buddy bids 500 more
(e) auction closes with that as winning bid
(f) seller simply claims to want to do right by you but is worried about upsetting the winning bidder

yeah, I'm being cynical, and maybe seller is a rube.
Butmaybe,justmaybe, it's all a neat trick to see if you'll up the price.

[bose]

Kevin,

I never thought of that possibility. It could very well be the case. who knows...

[davewray]

Kevin...Trust me, I've thought of that too. I guess it's my achilles heal to think that he's honest. He's given me no reason to believe otherwise. In all of the emails I've sent him and asked him questions he's answered all questions to the best of his knowledge and has backed up stats and revenue figures.

I was on the phone with him today. He himself in his own words said that the $500 is not a big deal to him and he wished he had taken the listing off Ebay, so this all could have been avoided.

There's just too many things pointing in the direction that he's being above board for me to think otherwise. If he is in fact playing a little game, then I'm pretty sure he'll lose. He's going to contact me tomorrow regarding info he gets from Ebay, his lawyer, and the winning bidder. We'll see what happens.

If he was in fact trying to fool me, why would he agree beforehand to my terms in an email to the sale of his site? He seemed ready to transfer ownership of domains, acct and passwords. He was willing to help in the transfer and other things too.

Bose, it was a letter of intent for all intents and purposes, and was not a binding contract with signatures (that was going to be the next step...)

Thanks for the comments, I'll keep you all posted.

Dave.

[davewray]

IncrediBILL...I'm sure lots of people side-step auctions. It saves the seller any commission fees and the buyer may get it at a lower price as a result.

Kevin..Let's accept what you've thrown out here as a possibility for a moment. Let's say you're right and he did get a buddy to bid up thinking that he could prompt me to bid higher.

Well, now the pressure is on him hoping that I do in fact bid up and he makes more money. However, if I do not bid up, then either his buddy has to pay him in full for his website, or he doesn't sell his website at all. I don't think he wants either of those two scenarios to unfold. He has reasons for selling his site. Based on how his site is doing and its potential I tend to believe him when he says he can no longer operate it and must sell it. I'd like to think he's not playing any games. I am Canadian...perhaps he thinks I'm a stereotypical naive, innocent Canadian? :)

Dave.

[davewray]

Just thought I'd update...the whole thing went bust for me. He sold the website the guy on Ebay. Fine, but you'd think he could have at least emailed me or called to let me know so I could get on with my life! This guy was obviously full of crap on the phone when he told me that morally he felt obligated to sell me the site because we had come to a deal first and that $500 was no big deal to him. I even tried emailing him several times sweetening the deal and he didn't even respond. You know...the internet can be wonderful when it comes to money-making, but it's a sack of #^$@ when it comes to anonymity and people thinking they can just ignore you...ok, end of rant.

Dave.