So, you’re shipping a watch. Who assumes the risk?

Braindrain · May 23, 2024

gbesq
Joe, I think that you’re generally correct when you are referring to a shipping contract. Where I think we may have different views is what the rules are when it’s a destination contract. My understanding is that in a destination contract, where seller agrees to deliver to buyer’s location (which describes about 99% of the private sales on OF), both title and assumption of risk transfer to buyer when the goods are delivered to the buyer’s location. In a shipping contract, the seller is off the hook when the goods are delivered to the carrier. In a destination contract, the seller remains on the hook until the goods are delivered to the buyer. This is why I think C24, for example, requires the seller to insure the watch for shipment because the risk of loss remains with the seller until the watch is delivered to the buyer. If I’m mistaken, I’m happy to be corrected.

I agree. Most negotiated sales "contracts" for private watches seem to be FOB Destination.

Evitzee · May 23, 2024

gbesq
Joe, I think that you’re generally correct when you are referring to a shipping contract. Where I think we may have different views is what the rules are when it’s a destination contract. My understanding is that in a destination contract, where seller agrees to deliver to buyer’s location (which describes about 99% of the private sales on OF), both title and assumption of risk transfer to buyer when the goods are delivered to the buyer’s location. In a shipping contract, the seller is off the hook when the goods are delivered to the carrier. In a destination contract, the seller remains on the hook until the goods are delivered to the buyer. This is why I think C24, for example, requires the seller to insure the watch for shipment because the risk of loss remains with the seller until the watch is delivered to the buyer. If I’m mistaken, I’m happy to be corrected.

I think this is correct.

C24 is a bit fuzzy on this issue, however. Dealers seem to be required to ship everything fully insured. "Dealers ship every order with full insurance coverage. In rare case of unsuccessful delivery, your shipment would be fully insured, so you can make both domestic and international purchases risk-free." But a private seller's requirements are a bit looser: "We tell every private seller to ship orders with full insurance coverage and with a tracking number, so in rare case of unsuccessful delivery, your shipment would be fully insured to make both domestic and international purchases risk-free. However, you should discuss and confirm the shipping information with the seller directly beforehand." There would seem to be some wiggle room there in the case of a seller not insuring a parcel and it goes missing.

Last year I bought a pre-owned $10k watch from a private seller on C24 (domestic transaction) at a deep discount to the MSRP of $18k, everything looked legit, watch, box, all links, guarantee, the seller was upfront about everything. When we discussed shipping he said he was sending it FedEx next day delivery and I asked how it was going to be insured, he said he checked with his homeowner's insurance agent who said it was covered in transit. Sounded odd to me because most policies don't cover watches and jewelry above a token amount, but I figured if the delivery went haywire C24 would back me up for non-delivery. It all went well and everything was exactly as described, but I still wonder what would happen with a watch that went missing in transit from a private seller, would C24 back the buyer? I think they would because the funds were held in escrow until I released them upon delivery of the watch, so if the watch wasn't delivered the funds wouldn't be released.

Joe_A · May 23, 2024

gbesq
Joe, I think that you’re generally correct when you are referring to a shipping contract. Where I think we may have different views is what the rules are when it’s a destination contract. My understanding is that in a destination contract, where seller agrees to deliver to buyer’s location (which describes about 99% of the private sales on OF), both title and assumption of risk transfer to buyer when the goods are delivered to the buyer’s location. In a shipping contract, the seller is off the hook when the goods are delivered to the carrier. In a destination contract, the seller remains on the hook until the goods are delivered to the buyer. This is why I think C24, for example, requires the seller to insure the watch for shipment because the risk of loss remains with the seller until the watch is delivered to the buyer. If I’m mistaken, I’m happy to be corrected.

I think the issue comes down to whether there exists, in fact, a contract that places the liability on the seller to deliver the goods to a destination.

One should not assume such a thing exists in the absence of a written agreement. That was a point buried somewhere in my earlier post. And then too, there is the cost of enforcement to consider. One can be "right" and still lose.

I agree that, when one buys from C24, there exists such a contract. As the money is held in escrow, this situation is generally fair to both the seller and the buyer, but in the end, whatever C24 decides, the two parties will have to accept or challenge If it comes down to a potential for law suit . . . the suit will probably not happen due to cost. I would not be surprised if C24 anticipated such a possibility and placed an arbitration clause in their contracts. I have not looked into this issue.

I bought a rather rare pristine Enicar Sherpa Graph Ib "Jim Clark" Gray & White in a private sale from a gentlemen who lives in Canada. I am located in New York. We conducted a mutually respectful and pleasant transaction that resulted in the process taking some time, but in the end we both felt good about the transaction. We used Escrow.com. My money was held until I got the watch and then . . . we both smiled. At least I do hope John, the former owner smiled as well. 😉

This thread has been terrible so far because it lacks watch photos!

gbesq · May 23, 2024

After nearly three decades of practicing law, my view is that if I offer to sell you a watch, you agree to buy the watch, and you pay me for the watch, that’s a contract - offer, acceptance and consideration paid. Although there are certainly exceptions, I think that the general understanding on OF - and the way that the vast majority of private sales actually work - is that the seller agrees to deliver to the buyer’s location and not just to deliver to a common carrier like the post office. That is the definition of a destination contract. So I’m going to stick with my position that both title and assumption of risk are with the seller until the watch is delivered to the buyer’s location at which time both are transferred to the buyer. Your mileage may vary. Now for the watch photo.

Archer · May 23, 2024

gbesq
After nearly three decades of practicing law, my view is that if I offer to sell you a watch, you agree to buy the watch, and you pay me for the watch, that’s a contract - offer, acceptance and consideration paid.

Agree 100%

gbesq
Although there are certainly exceptions, I think that the general understanding on OF - and the way that the vast majority of private sales actually work - is that the seller agrees to deliver to the buyer’s location and not just to deliver to a common carrier like the post office.

Unless it is specifically spelled out, I would not assume anything like this is the case. Your "general understanding" may be very different than someone else's.

gbesq · May 23, 2024

Archer
Agree 100%

Unless it is specifically spelled out, I would not assume anything like this is the case. Your "general understanding" may be very different than someone else's.

That’s a fair point, Al. Obviously, I’m speaking somewhat from anecdotal experience, but it does seem to me that with most of the deals that I see on OF for private watch sales, it is usually the seller who offers to deliver the watch to the buyer’s location via common carrier. True, the seller doesn’t always pay and sometimes there is “shipping to be discussed.” That being said, I do believe that I am correct in my view that title and assumption of risk is not transferred immediately to the buyer upon payment when the seller has agreed to have the watch delivered to the buyer’s location.

pdxleaf · May 23, 2024

gbesq
After nearly three decades of practicing law, my view is that if I offer to sell you a watch, you agree to buy the watch, and you pay me for the watch, that’s a contract - offer, acceptance and consideration paid. Although there are certainly exceptions, I think that the general understanding on OF - and the way that the vast majority of private sales actually work - is that the seller agrees to deliver to the buyer’s location and not just to deliver to a common carrier like the post office. That is the definition of a destination contract. So I’m going to stick with my position that both title and assumption of risk are with the seller until the watch is delivered to the buyer’s location at which time both are transferred to the buyer. Your mileage may vary. Now for the watch photo.

This is beginning to define how shipping might work on OF, which was the OP's original question.

In short, according to the quoted section, a rule/principle/suggestion could state that once payment is received, the seller is expected to deliver/ship the watch to the buyer, unless there is a prior agreement to do otherwise. In addition, the seller has risk of loss until the watch is delivered to the buyer, unless there is a prior agreement to do otherwise.

Or, the rule could just say "be sure to discuss shipping and who pays in case the watch is lost in the mail."

EuroDriver · May 23, 2024

I am of the opinion that legally, once money changes hands, the buyer is now the owner and assumes the risk of calamity in transit unless otherwise agreed to in writing. (Ask any homebuyer who didn't insure the property while in escrow and the house burned down, etc). That doesn't mean it's ethical, but someone who does not have a clear agreement in a high-value transaction is just asking for it (whether buyer or seller). Assuming two individuals are ethical, how do you resolve the dilemma? The watch is gone. Seller doesn't want to return the money because the watch cannot be recovered. Buyer shelled out the money but got an empty sack (actually not even a sack) in return. Should they split the loss?

That aside, I'll share a personal experience that did not have to do with a watch, however it was a fairly expensive piece of equipment:

Many years ago, I bought said expensive piece of equipment from someone on a forum, with the agreement it would be shipped insured. I paid via PayPal G&S. The package arrived in a beat-up box and when I opened it, the item was shattered to pieces. I informed the seller and before I could blink, the seller opened a claim with USPS. The seller begged and pleaded that I do not take action through PP until we resolved the matter through USPS.

USPS asked me to bring the package to my nearest post office location. Upon inspection, they informed me that they were inclined to deny the claim because it was packaged very poorly. In the process, I come to find out that the insurance covered the shipper, not the recipient. The seller appealed the denial and kept asking for my patience, promising to send me a new piece of equipment once the claim resolved.

Eventually, I lost patience and opened a claim with PP. guess what? PP directed me to send the package back, and I would be refunded when the seller received the package. No matter how I explained that USPS was in possession of the package and the seller made a claim on the insurance, I was not able to get around this requirement. I lost the equipment and my money. I never heard back from either the seller or from USPS.

I know this is a little different than a package that is outright lost (I've been there too with smaller value items) but I figured I'd share this as food for thought...

My personal view on the topic is that if I'm the seller - whether or not the buyer and I spelled out terms of delivery, insurance, etc., if I elect to ship uninsured, I am ready to refund the buyer if it is established that the package never arrived.

Archer · May 23, 2024

gbesq
most of the deals that I see on OF for private watch sales, it is usually the seller who offers to deliver the watch to the buyer’s location via common carrier.

As long as it is spelled out, and the parties agree, that works well. I can’t say the I’ve ever seen it spelled out the way you describe, but I don’t study the listings here.

What I take issue with is you assumption that this is the norm in the absence of any details. If you are okay with making that assumption, that’s up to you. I certainly wouldn’t.

Faz · May 23, 2024

DaveK
Does Canada Post’s insurance cover watches?

I declare it as a chronometer/timing device. They won’t cover jewelry or watches. I never had to make a claim so there’s a few unknowns.

pdxleaf · May 24, 2024

Faz
I declare it as a chronometer/timing device. They won’t cover jewelry or watches. I never had to make a claim so there’s a few unknowns.

When the USPS lost my watch (stolen out of the truck), I had to give them receipts to prove the value of the watch. Even then, it was a bit of a battle. If you suffered a loss, you might have a tough time proving you had what you claimed. Better no insurance than paying for worthless insurance.

iamvr · May 24, 2024

Disclaimer: I'm not a lawyer.

I've been reading this thread with great interest as I might be in the situation of sending a high value watch to the US (from Europe). When I read the thread title, I faintly recalled my private law 101 classes from university and thought ok, pretty clear, the buyer bears the risk for shipping. I was then rather surprised to read the responses by mainly US-based members who know / or assume that the seller generally bears the risk until the buyer receives the item.

So I got curious and started to look into local Swiss law and by chance also found the equivalent German law. In Swiss private law (and I remembered correctly) the risk is generally passed on to the buyer upon completion of the purchase contract if not agreed otherwise. The seller is off the hook once the item leaves his/her premises and handed over to a courier. The German law seems to make a distinction between a B2C and C2C transaction. In the latter case, i.e. a sale among private individuals, the German law is equivalent to the Swiss, i.e. the seller is off the hook once the parcel is handed over to the shipping company. It doesn't seem fair as the buyer has not yet control of his/her new property, but apparently it's based on old Roman law, periculum est emptoris (buyer's risk). This is how we Europeans roll 😀

I recently send a watch to France. The shipping company would only provide insurance up to 500€ (pretty much standard). External insurance was not possible. Communicated the situation to the buyer, he accepted and prayed. Everything went well.

So as so often, rules and laws are different in different regions, which makes me hesitant of shipping a watch to the US because if anything goes wrong the buyer might hire @gbesq as an attorney to hunt me down 😀 (just joking on a Friday).

gbesq · May 24, 2024

iamvr
Disclaimer: I'm not a lawyer.

I've been reading this thread with great interest as I might be in the situation of sending a high value watch to the US (from Europe). When I read the thread title, I faintly recalled my private law 101 classes from university and thought ok, pretty clear, the buyer bears the risk for shipping. I was then rather surprised to read the responses by mainly US-based members who know / or assume that the seller generally bears the risk until the buyer receives the item.

So I got curious and started to look into local Swiss law and by chance also found the equivalent German law. In Swiss private law (and I remembered correctly) the risk is generally passed on to the buyer upon completion of the purchase contract if not agreed otherwise. The seller is off the hook once the item leaves his/her premises and handed over to a courier. The German law seems to make a distinction between a B2C and C2C transaction. In the latter case, i.e. a sale among private individuals, the German law is equivalent to the Swiss, i.e. the seller is off the hook once the parcel is handed over to the shipping company. It doesn't seem fair as the buyer has not yet control of his/her new property, but apparently it's based on old Roman law, periculum est emptoris (buyer's risk). This is how we Europeans roll 😀

I recently send a watch to France. The shipping company would only provide insurance up to 500€ (pretty much standard). External insurance was not possible. Communicated the situation to the buyer, he accepted and prayed. Everything went well.

So as so often, rules and laws are different in different regions, which makes me hesitant of shipping a watch to the US because if anything goes wrong the buyer might hire @gbesq as an attorney to hunt me down 😀 (just joking on a Friday).

Simple solution. Just put your agreement in writing and that will control. Disclaimer: This is not legal advice, we have no attorney-client relationship, and no animals were harmed in the making of this post. 😁

Ron_W · May 24, 2024

pdxleaf
When the USPS lost my watch (stolen out of the truck), I had to give them receipts to prove the value of the watch. Even then, it was a bit of a battle. If you suffered a loss, you might have a tough time proving you had what you claimed. Better no insurance than paying for worthless insurance.

Good points, you need to produce quite some evidence to make your case, so make pictures of the item in hand, in the box etc like Secursus.com demands, and weigh the box and take a picture of the weigth scale so the courrier can compare with the weight during transit and final delivery point if something is wrong.

iamvr
n Swiss private law (and I remembered correctly) the risk is generally passed on to the buyer upon completion of the purchase contract if not agreed otherwise. The seller is off the hook once the item leaves his/her premises and handed over to a courier. The German law seems to make a distinction between a B2C and C2C transaction. In the latter case, i.e. a sale among private individuals, the German law is equivalent to the Swiss

It seems the Old World is in agreement here, all the way back to the Romans. Unfair in case of shipping abroad etc so all the more important to agree before sending it out on who arranges and insures what.

Faz · May 24, 2024

pdxleaf
When the USPS lost my watch (stolen out of the truck), I had to give them receipts to prove the value of the watch. Even then, it was a bit of a battle. If you suffered a loss, you might have a tough time proving you had what you claimed. Better no insurance than paying for worthless insurance.

True. Either way, if I commit to insuring the watch, I’m responsible. If an unfortunate event happens with Canada post, I’ll have receipts and if they decline, I’ll pay. That’s why I use it for lower value pieces. When I use USPS, I’m fully backed up with receipts or proof of value just in case.

gbesq · May 24, 2024

No matter which school of thought one subscribes to, what is readily apparent is that it is getting more and more difficult for individuals to get shipping insurance for luxury watches that provides sufficient coverage without so many exclusions and loopholes that it's useless. I do find that the USPS is better than most other carriers, especially if you use registered mail. Not inexpensive, but very secure.

Braindrain · May 24, 2024

Faz
True. Either way, if I commit to insuring the watch, I’m responsible. If an unfortunate event happens with Canada post, I’ll have receipts and if they decline, I’ll pay.

I seem to remember there was a pay-out limit for Canada Post. Like many, they'll happily accept your $$ to insure above that amount.

Faz · May 24, 2024

Braindrain
I seem to remember there was a pay-out limit for Canada Post. Like many, they'll happily accept your $$ to insure above that amount.

I didn’t know this. Then again, it’s been a while since I sold anything.

Larry S · May 24, 2024

pdxleaf
When the USPS lost my watch (stolen out of the truck), I had to give them receipts to prove the value of the watch. Even then, it was a bit of a battle. If you suffered a loss, you might have a tough time proving you had what you claimed. Better no insurance than paying for worthless insurance.

I learned from a master, @mr.kaplan. Wrap it so it takes 15 minutes to unpack and only use professional couriers.

pdxleaf · May 24, 2024

Larry S
I learned from a master, @mr.kaplan. Wrap it so it takes 15 minutes to unpack and only use professional couriers.

Trouble is it was sent priority mail with signature required. The irony was that I missed the delivery because I didn't hear the door bell. The box was taken back to the truck and he continued on his delivery route. At one point, someone broke the windows and took a bunch of boxes, including my package.

This could happen to any carrier, no? Who would think someone would be crazy enough to break into a US postal service truck?

Sorry, I don't think I did anything risky or negligent. I also think the USPS is a professional carrier.

I see you're in Yosemite. Very cool. Still haven't been there yet. Hopefully you're beating the crowds.

So, you’re shipping a watch. Who assumes the risk?

Braindrain

Evitzee

Joe_A

gbesq

Archer

gbesq

pdxleaf

EuroDriver

Archer

Faz

pdxleaf

iamvr

gbesq

Ron_W

Faz

gbesq

Braindrain

Faz

Larry S

pdxleaf

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