Not a court case, just a question. As usual. FedEx messed up on a shipment. This time it was a perishable item that sat on an unmoving truck for 4 days. FedEx says they don’t owe me anything because I’m not the shipper and I don’t have the contract with them. I’m bother by this and I’m curious if it would hold up in court.
Since it was my property (I already paid for it) and it was placed in their custody, don’t they owe ME as the owner a duty to take reasonable care of my property? What if they ran their truck into my garage door or broke my window as part of their delivery? Can they claim they don’t need to recompense me since I don’t have a contract with them?
Since I paid for the shipping, don’t I have some rights even if the contract was with the shipper? In effect I contracted with FedEx through the shipper?
They claim they work with the shipper to make me whole. What if the shipper says, “Forget it. I fulfilled my obligation and sent out good product.” am I out my money?
This right here is the very simple answer. They have no contract with you.
Are you having a problem getting the shipper to reimburse you?
It depends on the applicable law. Needscoffee’s answer is the classic answer under the common law of contract.
However, legislatures have sometimes changed that by statute, and have given third parties who are clearly intended to benefit from the contract the right to sue if the party to the contract failed to execute the contract properly, harming the third party. Those types of third party provisions are often included in consumer legislation.
And some jurisdictions will allow the third party to sue in tort, arguing that even if there wasn’t a contract, the party to the contract owed a reasonable duty of care to the third party.
So, on the information given in the OP, it is not possible to answer the question.
I don’t think it is that simple. Are people allowed to destroy my property if I don’t have a contract with them. Let’s say a tow truck through negligence destroys my car when giving a courtesy tow. They don’t owe me for the damage? I have to go through the city that says, “F you. We didn’t destroy your car.”
Let’s say I go to a private mail box and pay them to ship an item. They then decide to send it out with FedEx and FedEx stomps all over my package. Then there is no recompense because it was a contract between the private mail box and FedEx? But it was my property that was destroyed so then what is my remedy or am I just screwed. If so that seems a major oversight in contract law that one party can destroy another person’s party without any liability.
I’m having a hard time understanding how party A can destroy party B’s property and not be held liable to party B for it.
Because you entrusted it to party C to deliver it somewhere and they failed to do so. That’s who is responsible, the people who you gave the item to.
I would say most. In fact I’m not aware of any that don’t. It’s a bailment for reward.
It’s not your property. You haven’t taken possession of it yet. It’s still the seller’s property. The seller failed to, literally, deliver on its end of its contract with you. The fact that they entrusted FedEx to fulfill that part of their contract with you is an issue between the seller and FedEx, not between you and FedEx.
This is what I’m wondering, too. Ask the seller for a refund; if they refuse, file a dispute with your credit card company.
No, people aren’t allowed to destroy your property just because you don’t have a contract with them . But in the example you give ,Fed Ex could only be liable because of their contract - if someone had snuck a box of perishables into the truck without contracting with and paying FedEx , they wouldn’t have been liable.
For most (I think all, but I’m not certain) products shipped to consumers, the seller remains liable until it’s delivered and that means that in some sense they own the item until it’s delivered. If I order some sheets and they never arrive- I can dispute the credit card charge if the seller won’t simply reverse the charges. I don’t have to try to get my money back from USPS/FedEX/UPS. I get my money back from the seller and they get their money back from the shipper.
You are making a lot of assumptions here. In a standard FOB contract property passes at the time the property is given to the carrier.
Why is that? Why aren’t they a bailee for reward with a duty of care to the owner of the property?
A real life example for what should be happening:
I once ordered a moderately expensive home theatre receiver from an online seller. It was delivered, I signed for it, then noticed it had been damaged (box and the actual product) in transit. I contacted the seller and they sent me a pre-paid shipping label so I could return it to them. Then they sent me a replacement. At no point did I ever have any contact with the shipping company.
What retailers do in order to keep clients happy often exceeds their legal liability. And one case is not necessarily the same as the other.
True, my point was more that my contact was with the seller not the shipper. The fact they had an awesome response was secondary.
If you want to understand this issue, I suggest you read this:
While it’s about Incoterms, which are standard international trading terms, it probably gives you at least some basic understanding of the possibilities about who can be responsible for what, and when. These are concepts also relevant to domestic carriage.
When property and risk in goods passes from seller to buyer is not a simple topic.
Even then, they would have to have a contract with somebody - they aren’t liable just because someone put the box on the truck. But since every company and shipper I have ever dealt with treats the transaction as if it is FOB destination (which means title passes when the buyer receives it ) rather than FOB origin/shipping point (which means the buyer takes title when the seller ships) , I’m wondering where you get the info that a standard contract for consumer purchases is FOB origin.* I certainly have never ordered anything online, over the phone or in person where I was told that the seller would arrange for delivery but if anything went wrong between the sellers location and mine, I would have to deal with the shipper.
I fairly recently had a credit card dispute where someone used my credit card number and address to purchase what turned out to be an electronic download. The merchant did not accept the dispute, and the choices on the merchant response form included :
1)Documentation that the cardholder is in possession of and using the merchandise
2)signed delivery form copy of cardholder ID as proof goods were picked up at merchant location
3) Delivery to cardholder at place of employment
4) Address verification and proof of delivery
At no point is there an option where the merchant can merely provide proof of shipping.
- FOB by itself is meaningless, so far as I can tell
Our shipping contracts normally include no insurance at all. We expect them to take reasonable care, but they don’t make any delivery promises unless someone pays for it. Insurance costs so much that normally it’s not paid for, and if the product is lost or is spoiled, the shipping company has no contract with anybody to make good the damage. That’s both private shipping companies and our government post office.
Commercial contracts specify where transfer of ownership takes place, who will arrange shipping, who will arrange insurance, who will pay shipping costs, who will pay insurance costs. Those are all separate things.
By volume, most of our end consumers will not accept our shipping terms. They buy from an intermediate who will accept our shipping terms, who will present the item risk-free to the next intermediate, who will present the item risk-free installed at the customer location.
Likely FEdEX contract with the shipper covers this. The shipper gets a discount off of list rates and may be required to take responsibility for damages. When shipping something of large value it is important to know who is responsible for it at what points in the process. I recently saw where if a container falls off a ship at sea the shipping company is not responsible so it would be very important to know who is responsible for insurance purposes before the container gets lost at sea.
@Doreen I didn’t say they didn’t have a contract with somebody. I pointed out they also have a duty of care as bailee for reward. And I didn’t say that FOB was the standard contract for consumer purchases. You might try reading more carefully and not making assumptions.
FOB destination (if it’s used) is an oxymoron. I know terms get used very loosely so maybe people say that.
I haven’t done a survey but I certainly see plenty of ebay and other internet listings that make it clear that the risk of loss or damage is on the buyer.
So I looked further and FOB by itself is not meaningless - it is used that way in international shipping. But North American usage is different