ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Tuesday, February 22, 2011

How To eBay Your Children's Offending Toys (Moms: Do Not Try This At Home).

EBayed Bayblades 

As the mother of two preteen children this story hit a little too close to home.  In short, kids insist on playing with Beyblades in the bathtub, said tub is chipped and soap holder is broken by the rough play, frustrated Mom seizes toys, and presumably, after reducing the kids to tears by threatening to get rid of the toys, takes a snapshot of the tearful kids holding the offending toys in a ziplock bag; frustrated Mom makes good on her threat by actually auctioning toys of traumatized kids on eBay. 

Now here's the thing: there was keen bidding for the toys (estimated retail price $69) - the bids skyrocketed to $999,999!   So, what's wrong with this picture? I'll tell you what's wrong - like a virtual Hydra, an online community known for rapidly rallying behind the causes of its members became indignant at the 'heartless' Mom.  Members waded in, sparing no expense, to bid the auction to ridiculous heights.  

The last auction bid was for $999,999.  As we know, an auction sets up a contractual sale - in ordinary circumstances notice of the sale is an invitation to make offers, bids are offers, and the bang of the auctioneer's gavel (or in these circumstances, expiry of the fixed time predetermined for auction of the particular item) signifies acceptance of the highest bid.  Are you serious???  Surely not $999,999 for a Ziploc bag of silly used toys (plus the guilt of being an accomplice to the trauma of two kids).  Is there a law against this?  There may be.

The first rule is READ THE CONTRACT.  eBay's terms provide:

As an auction-style listing proceeds, we’ll automatically increase your bid on your behalf, up to your maximum bid, to maintain your position as the high bidder or to meet the item’s reserve price. The bid increment is the minimum amount by which your bid will be raised.

So, there may be automatic bidding.  Okay.  But you may pay less than your bid if you win:

When you win an auction you always actually pay only a small amount more than the next highest bid-even if your bid was thousands of dollars more.  If your bid wins, you must buy. Your bid on an auction is a legally binding contract. If when time runs out your bid is the highest, you have purchased the item and must pay the seller for it.

So what happened here?  Was the last bid $999,999, or was it in reality say (I'm picking a number out of thin air here) $73.01?  Clearly this would be less cause for excitement/incredulity (take your pick).  And that brings me to my next point: what was said frustrated Mom supposed to make of the bids?  Was she expected to take it all seriously?  Was she one of those rare creatures that actually read the fine print, and knew that $999,999 meant squat? 

These are not merely rhetorical questions.  If she had reason to believe the bids were in jest, would that negate the intention of the vengeful Hydra to enter into a legally binding agreement?  Do eBay's terms permit this - can any random group decide to use eBay as a means of punishing (whom in its opinion is) a bad mom by frustrating her lesson-in-financial-responsibility punishment?  Maybe not - eBay's terms state further:

Bidding is meant to be fun, but remember that each bid you place enters you into a binding contract. The only bids that are non-binding are those placed in the Real Estate category and for vehicles on eBay Motors. All bids are active until the listing ends. If you win an item, you’re obligated to purchase it. 

But was this auction binding?  Let's think this through: 

  • if you bid in malice believing that your bid is patently ridiculous and obviously not to be taken seriously = no intention [read: not binding],
  • but the terms say a bid is binding, period, and you are presumed to read the terms = intention [read: binding],
  • but the size of the bid may not be what it seems [read: binding. Caveat: for a lesser price unknown to all except eBay during bidding],
  • but bids may be withdrawn in some circumstances = possibly not binding [read: not binding],

So, what's a mom to do: exasperated, ask eBay to cancel the auction? Can this be done without a reserve price?  Can eBay do whatever its adhesion contracts say it can?  Apparently, yes, and in this case, that is what happened.  eBay cancelled the auction (presumably at the request of the humiliated Mom) and that was that.

Well I say there ought to be a law.  Not necessarily against on-again-off-again auctions (if there can be such a thing - you either bid or you don't, you either accept the bid or you don't?), but against the unsympathetic hounding of frustrated mommies.  You see, I know all too well how hard it is to balance lessons in obedience, responsibility and (dollars &) 'sence' with warm hugginess, patience and forgiveness.  As the mother of two children, I know that sometimes, you need to just let it lie.   But there are those moments when you've simply had it - when you've heard 'let 'er rip"a hundred million times, and that irritating rattle and roll in the beyblade arena (yes, one of my kids looooooves beyblades too) is ringing in your ears, for example. 

Imagine another scenario: You've had a long day teaching, you are starving because all you had to eat all day was that granola bar snatched between classes.  You're finally home juggling cooking dinner, supervising homework and checking voicemail messages.  The fact that someone has contributed to the daunting mess in the family room by leaving beyblade paraphernalia scattered all over the place is ticking like a timebomb, at the back of your brain, setting up a 'Mommy moment'.  Must you not only patiently endure your hunger, your exhaustion and your frustration, but fight the temptation of eBaying the offending toys too?

I've tried the maligned discipline tactic before, you see.  Someone who will remain nameless once shattered my car windscreen during a tantrum.  Exactly $173.16 of the $1000+ it cost to replace the windscreen emptied the culprit's piggy bank.  Admittedly I didn't take a picture of the culprit, post it on eBay, round up all the beyblades I could find, and attempt to raise the $826.84 balance by auctioning them on eBay.  I'm not even sure the lesson had the desired effect because from time to time, I'm reproachfully reminded by a certain someone (who's saving up for the latest computer-game-thingy), that s/he would have $173.16 more by now if I hadn't raided his/her piggybank.  Hercules Slaying the Hydra But what's a mom to do? 

Its a sometimes thankless job, being a Mom, but really, what has this world come to when a random Hydra can rear up to (caution: link contains coarse language) frustrate your non-spanking discipline attempts , and you earn yourself a place in the Mommies Hall Of Shame for even trying the discipline attempt?  With a chipped bathtub and broken soap dish on top, to add insult to injury?

So now I have a hilarious intended-in-jest-or-serious-contractual-offer teaching hypo for my contracts students.  And, the urge to check that I have not been outed in the Mommy's Hall of Shame as a bad mom everytime I cringe at hearing 'let er rip!"


[Eniola O Akindemowo]

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I'll admit to being less than sympathetic to people who try to screw around with my attempts to discipline my children. Does the mom have an action for tortious interference with prospective business relations, or possibly for restitution here?

I just feel like the perpetrator, as well as the person who ridiculed the mom for attempting to do constructive discipline, really needs a good (metaphorical) smack with the wooden spoon of justice.

Posted by: Dan Barnhizer | Feb 22, 2011 8:51:36 AM

I agree with Dan. If you look at the actual comments on eBay, they are quite abusive. Clearly, this mother has chosen an unfortunate way to discipline her children, but the response was excessive.

Fortunately, now that we have the Tiger Mom book, we all know that the best way to discipline children is to call them garbage and threaten to burn all their toys. eBay, sheesh! Get some dignity!

Posted by: Jeremy Telman | Feb 22, 2011 9:41:40 AM

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