Tuesday, August 3, 2010

Without Recourse

Having repeatedly waited for shipments and purchases made via eBay, PayPal and other online channels, I’ve also been through the difficulty of having to file claims and disputes over undelivered items and items which were in a condition significantly different from that which the seller represented them to be in. And being the (supposedly) conscientious law student that I am, I have frequently considered my remedies for such disputes and claims.

While my legal education has taught me what recourse to tribunals entails, the experience of using online channels (that is, the real life experience of having to use online channels) has shown me that strictly legal remedies have become inutile.

As I see it, recourse to courts and administrative agencies – indeed, those offices that have been vested with a portion of the sovereign power – has been supplanted by the arbitral mechanisms put in place by online channels, arbitral mechanisms that I am left with no choice but to accede to given my supposedly voluntary entry into a contract, i.e., the terms and conditions of eBay and PayPal. I say ‘supposedly voluntary’ because, as anyone with elementary knowledge of obligations and contracts ought to know, the contract/s I entered into in respect of these online channels are what may be deemed contracts of adhesion; or, even if it were to be stripped of strict legal technicalities, the point is, I was left with no choice but to agree to those terms, otherwise I’d practically be unable to engage in online transactions.

Hence, the legally stipulated prescriptive periods that I have been taught to rely on are replaced by PayPal’s 45 days to file a dispute and 20 days to elevate a dispute into a claim. Where items are patently different from the descriptions the seller represented, I am left with no option to support my claim (per eBay’s policies) other than by having to obtain ‘expert opinion’ where no such expert exists in the Philippines. Or where a local seller notified me through SMS that he had chosen to sell to a better paying buyer an item subject of an online auction (which I legitimately won), I find myself unable to properly advocate my cause before the ‘arbiter’ eBay, because text messages are, per their terms, inadmissible as evidence, the only admissible documents being emails and eBay messages.

Social and political theorists have written grand treatises on how the state is established with the promise that those who are part of it – the citizens – are to be protected and their interests are to be advanced, with legal systems being the apparatus for affording such protection and advancement. What happens then to that promise when the most basic legal remedies a state accords its citizens are undermined and made useless by seemingly innocuous ‘conveniences’?

Entry No. 8

No comments: