Date: Fri, 13 Aug 2004 17:09:36 -0700 (PDT)
From: Heather McCamey
Subject: Re: [CB] Stolen Goods on Ebay
I think we've all heard good and bad stories now about Ebay --
as I said, caveat emptor. I've had sweet deals as well.
The funniest part about working with the police for a stolen
contra... they kept calling it "clarinet". I tried to describe
how it was not "just a clarinet --
it's bigger". I finally brought them pictures, which
showed me playing the horn. The detective's dry comment was "wow,
that is big".
(And yes, I do have nice files and photos at home now for all my
instruments!)
-Heather
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From: Ken Shaw
Date: Sat, 14 Aug 2004 08:38:52 EDT
Subject: [CB] Law of Stolen Instruments
Peter Hurd writes:
I have a cautionary tale about an
Ebay experience (legal advice appreciated here...). I bought a late
model Loree oboe on Ebay in January 2004. Durin the auction,
seller represented the serial # as "LX18"- I checked the IDRS stolen
instrument list- no LX18. When I received the instrument, I saw that
the "8" in fact appeared to be a "0". It took two different attempts
with a jewler's loop to discern the that last number was a "9". The
numbers were not worn, simply poorly executed to say the least. I went
back to the IDRS list and found LX19.
I notified the police and the
original owner. The Ebay seller refused a refund. It turns out
the pawn shop the seller bought the oboe from had entered "LX10" on the
police card they had filed. The oboe was stolen in Illinois, "sold" in
Ohio, resold in Ohio, and sent to Washington. The original owner was
compensated (indemnified) by their insurance company. I still have the
oboe , now 8 months after "purchasing" same. A complete mess ! I can
not believe that Ebay does not require:
1) posting the serial number for ALL musical instruments IN the auction
title !
2) posting a photograph of the serial number amongst the auction
photographs!
3) Sellers being liable in full for selling "hot" instruments.
This to me just seems common sense,
and would save an untold amount of grief.
Peter -
I'm a lawyer.
The law on stolen property varies from state to state. In
New York, where I live, it goes this way.
The "common law" rule (i.e., in the absence of any statute) is
that "no one can take good title from a thief." If a thief sells
stolen property to you, the owner can get it back, and you,
unfortunately, must pursue the thief for your money. This is so
even if you bought the property in good faith and for a fair
price. This is true no matter how often the property is
sold. If Thief sells to A who sells to B who sells to . . .
Y who sells to Z, the owner can recover the property from Z, who has a
claim against X, and so on through the chain.
However, certain types of sellers (for example, pawnbrokers,
auctioneers, lost and found rooms and police property clerks) regularly
get hold of property that may have been stolen and need to be able to
sell it without fear of having the owner make a claim against
them. Thus the common law rul is altered by statute to cut
off the owner's rights, so long as these special sellers take
reasonable precautions to avoid selling stolen property and follow
procedures designed to let the owner (at least in theory) find out that
the property is in the seller's hands.
The pawnbroker to whom the thief sold the oboe was, at the
least, required to copy down the serial number accurately and to use a
jeweler's loupe to make sure what it was. S/he probably also was
obligated to check with the local police to find out whether it had
been reported stolen. That would no help in your case,
since the oboe wasn't pawned in the city where it was stolen, but
pawnbrokers are required to be aware of stolen instrument registries,
such as the one kept by the IDRS. A Loree oboe is unusual enough
to put a pawnbroker on warning that it might be stolen, particularly if
the pawn price was low. Even if a pawnbroker operating in good
faith would be protected, that protection disappears if the price is
too good to be true.
Thus, depending on the facts, the oboe's original owner (and,
now, the insurance company, which was assigned the owner's rights when
it paid out on the policy) may have been able to get through the
pawnbroker's right to cut the chain of ownership. However, you
wrote that even with a jeweler's loupe, you couldn't read the serial
number accurately. Thus, the pawnbroker's defense may be good, if
s/he can show a reasonable effort to read the serial number, a fair
price, and that the existence of the IDRS stolen instrument registry is
not common knowledge among buyers of oboes. This is the sort of
thing a jury decides, and the expense and delay of a jury trial is what
keeps owners and, particularly, insurance companies from going after
what is, at least to an insurance company, a relatively small amount of
money.
Once the chain was cut, you could acquire good title, even
against the original owner.
That's the legal side. On the ethical side, you still have
a stolen oboe. This happened to me a few years ago with a
recorder. I traced it through the maker and notified the original
owner, who bought it from me for the price I had paid.
Scrub the serial number area of the oboe with a damp toothbrush,
which will clean out the stamping and make it easier to read. If
it matches the IDRS stolen instrument number, I would at least offer it
back to the original owner at your buying price plus expenses, and put
the money toward a new oboe. If you're lucky, the serial number
won't be LX 19, and you'll have a great oboe at a great price.
I completely agree with you about eBay. It should be
mandatory to post complete serial numbers and photos. Legal
liability already exists, since an eBay seller is not really an
autioneer, though there's maybe some legal doubt in that area.
Best regards.
Ken Shaw
***End of Contrabass Digest***