Yes, you are responsible until delivery per the UCC link above.
I would also refuse any more of her orders, screw it.
She could be scamming you. Or it could be a problem with her local delivery people, or with people in the neighborhood stealing packages that are left on her porch.
In any case, tell her something like “I’m sorry that you’ve had these problems more than once. Since my other customers usually don’t have problems, I can only conclude that somehow, your packages aren’t getting handled properly, so I will require you to buy insurance for any future orders. Sincerely yours, <whatever>”. Either she’ll keep buying from you or she’ll find someone else. She’ll bitch about it either way, but at least you won’t be regularly eating the cost of her orders.
I buy online, and I will generally buy insurance if it’s offered. Insurance is generally pretty cheap, compared to the merchandise.
BZZZT! Wrong, but thanks for playing “Unauthorized Practice of Law.”
If the OP’s offer to treat (i.e., her web catalogue offering) makes clear that risk of losses passes earlier, as she purports it does, then UCC 2-509 can be varied by agreement.
That is, this provision serves only as the default rule that applies when the parties’ have not otherwise negotiated the matter.
In fact, UCC 2-509(4) makes this explicitly clear. “Reading the entire provision you’re citing” is a neat trick one learns in law school.
D MINUS.
No, I’m not wrong. That’s exactly how one would interpret that specific clause, which is what he asked:
If he (she?) had asked about the entire provision, my answer would have been different.
I was under the impression that law school also taught people testifying in court to answer the question that was asked, and nothing more.
If you accepted PayPal as payment for the merchandise, it’s up to you to provide proof of delivery, and if the merchandise is valued at $250 or more, the recipient’s signature as well if you don’t want to keep eating the cost of chargebacks.
I pass though, right? I can continue my unauthorized practice of the law.
I don’t think that’s quite so clear. Assuming this was some sort of browse-wrap clause, the buyer didn’t necessarily assent by simply purchasing the items.
You might want to check your old UCC for acceptance by performance, to wit, UCC 2-206.
What? There’s a lot of caselaw striking down the enforceability of browse-wrap contracts when it’s not clear the buyer was reasonably provided notice. Here’s one. And another.
If I’m missing something I promise to surrender my fake law degree immediately.
And there are, of course, cases by well respected jurists that sustain the validity of “browse-wrap” licenses (or their analogues): Hill v. Gateway 2000, Inc., 105 F.3d 1147 (7th Cir. 1997)
From the Hoffman case you cite:
Hubbert v. Dell Corp., 835 N.E. 2d 113 (Ill. App. Ct. 2005), is another case upholding browse-wrap agreements.
The key consideration is whether the purchaser is afforded reasonable notice that there are terms and conditions that will govern the transaction.
In this case, the OP has stated that his/her “policy clearly states the onus is on the customer which shipping option they want and the consequences.” I am inclied to believe that this is so. My surmise is that the OP runs a small business with a pretty utilitarian website of pictures, some blurbs about the merchandise and the proprietor, and a shipping form (with the terms set forth therein). I’d be surprised if the order form and the terms did not fail to appear on the same page (rather than being linked to as it the case with more sophisticated online retailers).
This being so, the OP’s risk of loss provision would be considered valid.
Moreover, in the Zappos case and the Hoffman case, the disputed terms pertained to arbitration and forum selection — matters further away from (and therefore less likely to be expected by run-of-the-mill purchasers) the essence of an online retail transaction. But risk of loss, on the other hand, is something much more likely to be expected by the buyer, as, after all, all online purchases will need to be shipped.
Where a contract has an expansive scope, reaching topics that relatively unsophisticated customers might not generally expect (such as clauses relating to the forum for adjudicating merchant disputes), hiding them away will likely render them unenforceable. But on more expected subject-matters, the danger of unfair surprise is less.
I say refund her the money of her order (including the shipping) or remake/reship her order at your expense (whichever is the cheapest out of pocket to you) and then tell her that her business is not longer accepted.
I’m not a business owner, and I don’t ship stuff to customers. I do buy stuff online, though.
I sort of operate under the assumption that I’m paying for something to be delivered to me, not paying for something that’s been dropped off at a post office somewhere.
I have no idea what the law is, or what an insurance company, or PayPal, would say about this. I just know that I’d feel somewhat unfairly dealt with if I ordered something that was never delivered to me, even though I’d paid in advance, and the seller said, “sorry, not my problem.”
It would be like going to the deli, ordering a pound of liverwurst, and having the deli guy drop it on the floor before he handed it to me, and then saying, “sorry, I already sliced it, your problem now.” If I’d already taken the package, and then dropped it on the floor myself, sure, my problem.