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Nightmare situation with eBayer / PGX
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408 posts in this topic

3 minutes ago, The Resurrection said:

Prove you didn't do something to the book

As I mentioned earlier, there's a legal concept for this that I don't recall...something about the buyer, acting in good faith, is not going to be assumed to do something purposely to harm a seller without evidence to the contrary. 

Otherwise, a seller can claim whatever the buyer did was always done on purpose, and never have to take responsibility for anything. "This blender doesn't work." "You must have broken it." "This car has an electrical problem." "You must have shorted something." "This comic has two missing pages." "You must have torn them out."

"Tearing out two pages" would certainly fall under the "I didn't do this by accident" category. 

And, in small claims, the burden of proof is "a preponderance of the evidence", not "beyond a reasonable doubt", which is a lower burden to prove. 

 

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36 minutes ago, Artboy99 said:
39 minutes ago, The Resurrection said:

Prove you didn't do something to the book

You cant now that you have opened it.

You couldn't before you opened it. "But...the case was sealed!" So? Does that mean it's tamper proof? No. Especially PGX. 

Aside from opening a package in the presence of a notary, who is qualified to agree to the condition of an item, there's nothing you can do to "prove" you didn't "do something" to it yourself as the buyer.

Every scenario you can come up with, I can produce a reasonable sounding counter-scenario as to why your scenario isn't valid. 

In this case...the case wasn't opened by the buyer, but by a disinterested, uninvolved third party...CGC...who has no stake in the pages being present OR missing. So, it's a stronger argument that the book came out of the PGX case was what was IN the PGX case.

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5 minutes ago, RockMyAmadeus said:

As I mentioned earlier, there's a legal concept for this that I don't recall...something about the buyer, acting in good faith, is not going to be assumed to do something purposely to harm a seller without evidence to the contrary. 

Good faith purchaser.  

Article 2 of the UCC (sales of goods) governs this sale.  This is largely a warranty issue.  I don't think the Seller breached any express or implied warranties to the Buyer.   And I don't think Buyer has any recourse against PGX on some type of third party beneficiary theory because of the express disclaimer PGX (and all the grading companies) place.  And as someone posted earlier, now that the book was cracked from the case ...    Just an unfortunate set of facts.  

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19 minutes ago, zosocane said:

Good faith purchaser.  

Article 2 of the UCC (sales of goods) governs this sale.  This is largely a warranty issue.  I don't think the Seller breached any express or implied warranties to the Buyer.   And I don't think Buyer has any recourse against PGX on some type of third party beneficiary theory because of the express disclaimer PGX (and all the grading companies) place.  And as someone posted earlier, now that the book was cracked from the case ...    Just an unfortunate set of facts.  

But doesn't Negligence, Fraud, and Misrepresentation caused by a breach of duty (negligence in counting pages properly), trump any disclaimers PGX may put on their website?  If these allegations can be proven, doesn't PGX have ultimate liability, since this was not a subjective error on their part?  How this would all play out in court I have no idea, but a good lawyer could have fun with this one. 

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4 minutes ago, mosconi said:

But doesn't Negligence, Fraud, and Misrepresentation caused by a breach of duty (negligence in counting pages properly), trump any disclaimers PGX may put on their website?  If these allegations can be proven, doesn't PGX have ultimate liability, since this was not a subjective error on their part?  How this would all play out in court I have no idea, but a good lawyer could have fun with this one. 

You’re confusing two separate areas of the law. Contracts and torts.  

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4 minutes ago, JollyComics said:

PGX = Professional Grading Experts

What should we change the new abbreviation for them?

Like Poor Grading IneXpert.

Pages Gone X-Men (may as well capitalise on the infamy) 

Pages Guarantee eXtra 

Probably Going X-Rated (your language after cracking a PGX slab) 

 

 

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7 minutes ago, mosconi said:

But doesn't Negligence, Fraud, and Misrepresentation caused by a breach of duty (negligence in counting pages properly), trump any disclaimers PGX may put on their website?  If these allegations can be proven, doesn't PGX have ultimate liability, since this was not a subjective error on their part?  How this would all play out in court I have no idea, but a good lawyer could have fun with this one. 

As to negligence, generally speaking, you can't argue negligence for a breach of contract matter.  When two parties have entered into a contractual relationship, the Economic Loss Rule (ELR) prevents one party from bringing a negligence action against the other over the first party's defeated expectations.  Even if you could argue negligence, PGX owes no duty of care to anyone except to its customer, who was the individual that contracted with PGX to grade the book a long time ago.  And, even then, the ELR kicks in because PGX had a contractual relationship with the customer, so negligence can't be asserted.  And, in any event, that PGX services contract likely disclaimed a ton of stuff, and effectively said, "we are providing you with an opinion as to what we think the grade is."  At the end of the day, grades are opinions, not facts.  A book is not a "7.0" because it's a 7.0.  A book can be a 7.0 because people opine that it's a 7.0.

As to fraud and negligent misrepresentation, those are definitely bases to void a contract, but the only contract PGX has was the original services contract to grade the book which was between PGX and that customer, whoever it is.  Buyer is not a party to that contact, nor is Buyer an intended third party beneficiary to the original services contract, and he wouldn't be able to recover damages from PGX.  But put all the law aside, the factual challenge is how can Buyer argue fraud if he cracked the slab?  PGX will say, "prove to us that Buyer didn't tear out those two pages."  However, if Buyer didn't crack the slab, he will never know the two pages are missing.

A "nightmare situation" is the right title of this thread, and I feel bad for Buyer.  In my opinion, PGX should be contacted, listen to what happened, and consider making the Buyer whole either in cash or in kind (grading credit, for instance). I don't know, just a suggestion.

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2 hours ago, zosocane said:

As to negligence, generally speaking, you can't argue negligence for a breach of contract matter.  When two parties have entered into a contractual relationship, the Economic Loss Rule (ELR) prevents one party from bringing a negligence action against the other over the first party's defeated expectations.  Even if you could argue negligence, PGX owes no duty of care to anyone except to its customer, who was the individual that contracted with PGX to grade the book a long time ago.  And, even then, the ELR kicks in because PGX had a contractual relationship with the customer, so negligence can't be asserted.  And, in any event, that PGX services contract likely disclaimed a ton of stuff, and effectively said, "we are providing you with an opinion as to what we think the grade is."  At the end of the day, grades are opinions, not facts.  A book is not a "7.0" because it's a 7.0.  A book can be a 7.0 because people opine that it's a 7.0.

As to fraud and negligent misrepresentation, those are definitely bases to void a contract, but the only contract PGX has was the original services contract to grade the book which was between PGX and that customer, whoever it is.  Buyer is not a party to that contact, nor is Buyer an intended third party beneficiary to the original services contract, and he wouldn't be able to recover damages from PGX.  But put all the law aside, the factual challenge is how can Buyer argue fraud if he cracked the slab?  PGX will say, "prove to us that Buyer didn't tear out those two pages."  However, if Buyer didn't crack the slab, he will never know the two pages are missing.

A "nightmare situation" is the right title of this thread, and I feel bad for Buyer.  In my opinion, PGX should be contacted, listen to what happened, and consider making the Buyer whole either in cash or in kind (grading credit, for instance). I don't know, just a suggestion.

I agree with much of your summary, except for asking PGX to consider any type of responsibility, or that PGX would ever be in a position of "prove to us the buyer didn't tear out those two pages." Ultimately, those two pages are torn out. It is not reasonable to assume the buyer did it, or would have motive to do it, especially since the buyer didn't crack the book, but sent it to another third party appraiser. Again, blame can't be shifted to anyone, for any reason, just because one party wants it to be.

After all...if that were true, one could just say "well, maybe CGC tore out those pages!"...and no one ever has to accept responsibility. Elaborate conspiracy claims usually don't work legally.

I have to go back to "unjust enrichment", since PGX didn't benefit from their mistake, but a seller did ...whoever the "original submitter/seller" is/was (and because of the grade date of this particular book, it's been assumed that the eBay seller is that person.)

Now...whether or not the person(s) who submitted the book knew it had missing pages when they obtained it raw (whenever they obtained it) is another matter altogether, but theoretically, the chain goes back to whoever FIRST represented it as a complete copy (and it WAS represented as a complete copy to the OP buyer, by virtue of the title and the type of label used by PGX) is who ultimately benefited at the expense of another, and is the one who rightfully owes whatever difference in value there existed between a complete and incomplete copy at the time of that transaction. Perhaps it's this seller...perhaps it's some seller in 1963...or anywhere in between.

Again...it's important to stress that expediency and practicality can certainly trump a correct process. 

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On 8/7/2018 at 7:58 PM, jcruzcollection said:

Got a rude awakening this morning. 

Last month, I purchased a PGX graded copy of X-men #1 (the eBayer even said in his description to get it CGC'd). Well...I then submitted it to CGC at SDCC since I prefer their cases. I didn't expect the grading (originally a 4.5) to come back the same, given the subjectiveness of grading. 

HOWEVER, the absolutely worst thing happened. CGC found that two pages were missing from the book and gave it the green "qualified" label (see photo). The book is still on its way back to me and will arrive Monday of next week. I don't know what to do. This is so disappointing. I'm planning to try and get a refund from eBay since I paid a premium ($4,300) for a complete book, not something that was missing pages. 

I remember reading threads not long ago about how some stores intentionally work with PGX to hide some of these flaws. I really hope this isn't the case. 

I thought this was just a helpful story for collectors. 

Screen Shot 2018-08-07 at 9.42.55 AM.png

What did you end up doing about the book?  It's been a couple weeks so I assume you have heard back from the seller if you went that route.

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Yah unfortunately you don't buy a comic when you purchase a PGX slab. You buy a chance. Can't expect a guy operating from his basement/garage to know that he is doing. I hope it all works out for you but this should raise many red flags for others thinking of buying PGX.

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25 minutes ago, Ride the Tiger said:

Yah unfortunately you don't buy a comic when you purchase a PGX slab. You buy a chance. Can't expect a guy operating from his basement/garage to know that he is doing. I hope it all works out for you but this should raise many red flags for others thinking of buying PGX.

60019316_redflag.jpg.cf5da832c1a97f5ca256dd9efaafa677.jpg

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The idea that a page count would not be standard practice for any grading company who hopes to stay in business, just staggers me.  I hate CRIME and DISHONESTY.  

IMO this all lays at the feet of PGX who as a  "professional grading company" failed to correctly do their job.  The only other possibility is that something happened further downstream, which 

is not an impossibility (just watch any of the crime shows on tv)  and has much more sinister implications  :( 

 

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