alleged merchandise fraud
October 28, 2009 | 30,00 EUR | answered by Andreas Scholz
I have the following problem:
Some time ago, I sold a mobile phone worth 200 euros on Ebay as a private seller and sent it as a parcel as agreed with the buyer. Now, the buyer claims that the product did not arrive and has filed a criminal complaint with the police for alleged fraud. I have received a summons for questioning by the police next Thursday. What should I do now?
Unfortunately, parcels are uninsured with DHL, and I did not receive any receipt or similar. Am I as a private seller on Ebay obligated to cover the damage, as I heard that with private sellers, the shipping is at the recipient's risk, is that true?
What should I do now? I am considering buying the buyer a new mobile phone, which would cost significantly more. Do I have to go to the police for questioning despite the summons?
Dear inquirer,
As a suspect, you do not have to attend the police interrogation. You are not even required to cancel the appointment. You simply do not need to show up.
The situation is different if you have been summoned by the Public Prosecutor's Office. In that case, you must appear, but you are not required to make any statements regarding the matter.
In consumer contracts, the risk of transport lies with the recipient, § 447 BGB.
In principle, it is not your burden to prove that you sent the package, rather it would need to be proven that you did not do so. Such proof is of course difficult to provide, and therefore the proceedings against you are likely to be dropped due to insufficient suspicion.
However, you are obligated to assign to the buyer the damages you are entitled to from dhl. It is relevant here that you do not actually have a shipping receipt that identifies dhl as the contractor. In this case, dhl will likely claim that they never received the order in question. Therefore, no claim for damages can be assigned. If you can prove through witnesses (who were present at the counter) that you sent the phone, this should be sufficient.
In conclusion: If you have not previously appeared in a similar criminal manner, the proceedings are very likely to be dropped. The buyer can then recover the purchase price as damages from dhl if they are responsible for the loss. However, it must be proven that the phone was actually received by dhl. If this cannot be proven, it is unfortunate for the buyer, as you are not generally required to keep shipping receipts. You would only be liable if prior convictions or other compelling external factors suggested that you did not actually send the device.
I hope this information has been helpful. If you have any questions, please feel free to ask.
Sincerely,
Andreas Scholz, Attorney
