Weird E-Bay Auction


Via one of my contracts students, I found this bizarre ebay auction. The winning bidder paid $611.00 for the following item [emphasis added]

This is the PREMIUM BUNDLE BOX only. It would include bonus accessories, if it were the actual PREMIUM XBOX 360! DOES NOT Come with 20GB Hard Drive, Console, HD Cables, Wireless Controller, Headset! In other words for those of you who do not understand, YES YOU ARE GETTING AN EMPTY BOX SO DO NOT ASK! Great for gags! DO NOT bid if you don’t intend to buy! No excuses, I will not retract bids for you! You will be reported to eBay if you backout after winning the auction. I Cannot be more clear! This is not even a factory made xbox 360 box. I made it myself, just a few minutes ago. It does not contain an Xbox 360 console, just the Xbox 360 home-made box. this box is great hand made by me says XBOX right on it[.] It doesn’t look anything like the picture I included in the auction. It looks much better, in my opinion.

The student (rightly) noted that a disappointed buyer would have a hard time making out a fraud claim. Other defenses and excuses (mistake, unconscionability, no meeting of the minds, etc.), seem similarly problematic. The only possible wriggle-room I can think of – if the buyer does in fact feel aggreived when she or he receives the empty box – is that the auction history seems to bear some marks of puffing.

So, I guess someone is getting a $600+ empty box (not even an XBox Box!) under the tree, or by the menorah, this holiday season. They better appreciate it.

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20 Responses

  1. Anon says:

    This is clearly a bait and switch — what’s the purpose of the picture and the title otherwise? I honestly can’t imagine, if the buyer refuses to pay, that any judge with an ounce of common sense would find for the seller in this case.

  2. KipEsquire says:

    eBay is very strict about yanking stunts like this. Expect the listing to be remvoed by the end of the day.

  3. Dave Hoffman says:

    I’m not sure that you can fairly characterize this as a bait & switch when the description is, apparently, attempting full disclosure. However, KipEsq. is probably right that Ebay can, and will, go beyond the requirements of traditional contract doctrine and void the (completed) sale.

  4. Brian Duffy says:

    I don’t see the problem here. If I buy a washing machine, and decide to sell the box on ebay to the highest bidder, am I wrong if some dope doesn’t read and bids $600?

  5. Bill Sjostrom says:

    I would characterize this as deceptive advertising. I’m sure silentbarrel will soon be prosecuted by Eliot Spitzer.

    On what grounds could ebay void the deal? Does it have something to this effect in its user agreement?

  6. Paul Gowder says:

    heh. some marks of puffing, eh?

    Retracted: US $525.00

    Explanation: Seller changed the description of the item

    I’m with anon: the mere fact that he discloses the fraud in a sentence or two of the multi-paragraph fraud doesn’t make the deceptive intent (or likely effect) any clearer.

    Suppose I sent you a 20 page contract, fine print, offering to sell a porsche.

    PORSCHE 911, candy apple RED! Get all the girls with this GREAT CAR! Featuring a 420 horsepower WATER-COOLED ENGINE (100:1 replica). According to the PORSCHE WEBSITE, “The six-cylinder ‘boxer’ engine is a DEFINITIVE ELEMENT within the 911 concept. [which you don’t really get because this is A MATCHBOX model car made of ADVANCED SPACE-AGE PLASTIC] Flat and compact, with a low center of gravity, its rear-mounted installation has generated optimum traction throughout more than four decades of continuous evolution. In today’s generation, its immediacy and sound are more inspirational than ever.” As the Porsche (who did not make this vehicle) website notes, “Shorter braking distances. Brighter headlights. Better airbags. More effective crash structure. The standard safety features on the new 911 are equal to the car’s performance.”

    Here are 20 pictures of the car [not on auction]!:

    Only $90,000.00!

    and you bought this, would you experience yourself as defrauded? More to the point, does the seller experience himself as tricking anyone?

  7. John Armstrong says:

    This is not the first I’ve seen of its sort. I don’t know how eBay dealt with the first one I saw (months ago, for a PSP), but it was posted for at least a couple weeks after the close of bidding.

  8. jimbino says:

    Now that headhunters are using machines to read resumes, I have included in mine, “don’t know nothin’ ’bout history, … geography, … science books, … French I took, … SAP, … PeopleSoft” and I get lots of responses!

  9. Dan Filler says:

    While this may be a genuine attempt at fraud, isn’t it also possible that this posting was either an experiment (would it require IRB approval if done by a university prof?) or a post-modern artistic event?

  10. thrashor says:

    The ethics of selling nothing

    Temple University law professor David Hoffman invites us to consider if selling an empty box, and describing it as just that, for $611 USD constitutes some form of fraud.

  11. Eric Goldman says:

    I’m sure we could find other applicable laws making this sale illegal, but 18 USC 2318 seems like a modestly close fit. Eric.

  12. Matt Bodie says:

    You guys have been doing this too long. I agree with the first commenter — this is totally fraudulent. There are two pictures of the X-Box. The “description” box calls it a “video game system” and then specifies that it’s a “Microsoft X-Box 360.” There’s a lengthy list of all the X-Box features. This one fails the common sense test. The only thing the seller can hope is that the buyer pays before they get the product, and then feels too stupid to sue. But it could also just be a prank.

  13. Bruce says:

    Eric, interesting suggestion about 18 USC 2318. Have courts held devices like the X-Box 360 to fall within the definition of “computer program”? According to 17 USC 101, a “computer program” is “a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.” Obviously an X-Box 360 contains computer programs, but then so do some refrigerators.

  14. Candace says:

    People are willing to try anything to make a dime. I was looking through the Ebay auctions for Xbox 360’s and came across this one:

  15. Simon says:

    Seems a simple case of not reading the fine print. The only possible room for debate is whether or not the item description included warnings that it was the box only at the time the bid was made, rather than at the time the auction ended.

  16. Paul Gowder says:

    Simon, I really love it when I hear people say that. Because eventually, it comes back to bite them. You’ve gotta live in the society you defend, where deliberate and conscious attempts to trick and decieve people are justified by caveat emptor. One day, you’ll get a credit card, and you’ll only find the “universal default” clause in the fine print after you find that your interest rate has leapt from 5% to 40% because you forgot to pay your phone bill before you went on vacation and it arrived in the company’s offices a day late. Or you’ll buy a $500 software program and not notice the line in the clickwrap license that says you can’t transfer it to a new computer & it disables hardware when you try. Or you’ll be in a best buy, purchasing a cellphone on the salesman’s assurance that there’s a rebate applicable to your purchase, only to read the fine print on the rebate form after you get home and find you’re not eligible. Or you’ll buy something off ebay and miss the 1point font footnote (written backwards, and in german) that says that actually, all you’re really buying is the first bodily excretion to come out of the seller after you pay.

    (guess which one of those seemingly ridiculous scenarios actually happened to me, and I’ll give you an xbox*)

    And then you’ll tell your story. And someone will call it “a simple case of not reading the fine print.” And you won’t get very much compassion. I’ll feel compasssion, personally, because I happen to dislike consumer fraud. But don’t take the story to your local Young Libertarians group. It’ll fall on deaf ears. And lo, the cycle continues.


    * By “xbox,” I mean a “box,” made of cardboard with the value of “x,” where x=0. and you pay shipping costs. In advance. Which I can set at my sole discretion. By even attempting to guess, or even reading this footnote, you agree to take the xbox under those terms, should I decide, also at my sole discretion, that you win. You also consent to absolute binding arbitration by my best friend, waive jury trial and all right to appeal in any court whatsoever, and give me the right to reposess any and all of your property using deadly force without judicial process to enforce your obligations under this agreement.

  17. … there is a more detailed description of what actually transpired with this auction at: THIS LINK.

    It appears that the seller made it fairly clear from the outset that the auction was intended as a joke, even emailed the “winning” bidder to tell them it was a joke, and refunded the money.

  18. This stunt was also pulled when the PS2 launched, and some poor twit bought an empty PS2 box(plus receipt!) for $400.

    It’s called cashing in on stupid people who don’t know what a “gag” is.

  19. Ryan C says:

    Does the item categorization count for anything? It seems to me that listing this under Video Games > Systems (instead of, oh, Video Games > Other) is a pretty deliberate act of deception.

    I can’t speak for the legal issues. But the item description and photos attached to the auction (which the seller points out do not represent the actual product being auctioned in any way) are pretty deceptive. This is NOT, seller’s disclaimer’s aside, a good-faith attempt to clearly describe the item offered for sale.

    The fact that this is all a hoax (as opposed to a fraud) underlines the point: people have been fooled by this auction because it was designed to fool people. Possibly legally, but I don’t need a law to tell good from evil.

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