Article Summary: Personal observations and recommendations for collectors to consider in acquiring original props, including an overview of contracts, documentation, eBay, PayPal, use of credit cards and alternate payment methods, insurance, shipping, and other considerations.
Buyer Precautions & Considerations, Part I: The Mechanics of the Deal
There are many simple precautions that buyers can take to protect themselves in the process of acquiring original props. Sometimes it’s easy to lose sight of these safety measures, but I’ve found it’s best to take nothing for granted and always do whatever I can to protect myself.
The following are some simple guidelines I recommend for nearly all transactions, as applicable, as well as some observations on the nature of contracts and their application to the Original Prop Hobby. This article focuses more on the “mechanics” of the deal and tips on better protecting yourself; future articles will focus on other areas of interest in taking part in transactions in the hobby.
Overview of Contracts
I think the following are the great failure points in many transactions gone wrong or sideways – communication, mutual understanding, and evidence.
The best way to create a foundation for success in transactions is to have clear and well documented communications and agreements. Many people that buy and sell props do not understand the nature of negotiations and striking a deal (i.e. coming to contractual agreement).
Of course, in a technical sense, there are many different types of contracts, but I think the one worth discussing here and the type that is most prevalent in original prop transactions is the bilateral contract. A bilateral contract is, essentially, a promise for a promise. One party offers a prop, and the other party offers money in exchange for that prop.
The four elements necessary for a valid contract to exist are: 1) competent parties, 2) mutual consent, 3) legal purpose, and 4) consideration.
When I was involved in managing the Movie Prop Forum, one requirement we made for participation in the “Marketplace” forums (i.e. selling and buying) is that participants must be 18 years of age or older. The reason for this is that (at least in the U.S.) anyone under 18 (unless emancipated) is a minor, and minors are not considered “Competent Parties”. So anyone selling to or buying from a minor is putting themselves at risk, in that you can’t enter into a valid contract with a minor.
“Mutual Consent” is the most critical element of a contract, in terms of buying/selling original props. Mutual consent is the clear “meeting of minds”, and includes an “offer” and an “acceptance”. An “offer” is when someone makes a clear and definite offer with the intent that, if accepted, there is a binding agreement as a result. An “acceptance” is when the other party formally accepts the offer. If, however, the potential buyer in turn offers anything less than the seller’s original offer, that is a counter offer and the seller would then have to agree to those new (different) terms in order to have a binding contract.
One element of contracts that I’ve always wondered about, as it applies to original props, is “Legal Purpose”. If a prop is stolen property, I wonder what the consequences would be if that piece were seized by the original owner (say a studio), and what recourse the buyer would have against the seller. I also wonder how the buyer’s knowledge of the provenance of the piece, or lack thereof, would factor into the equation. Regardless, I think the fact that there is an inherent risk in dealing with original props and the potential of a piece being stolen property should make any collector very cautious of acquiring any piece with a questionable history/provenance.
The last element, “Consideration”, is essentially anything of value offered in exchange – money, another item in trade, etc. Fairly logical, in that it would otherwise be a gift.
Overall, in terms of forming a binding contract, I think the biggest considerations, in terms of risk, are to ensure that the party you are transacting with is not a minor and that the prop itself has clear title (yet another reason provenance and authenticity is absolutely the key concern and issue in the hobby).
On a practical level, the essential aspect of forming an agreement is the offer and acceptance.
Documentation and the Written Contract
Taking all of this under consideration, equipped with an understanding of these basic concepts, you must go one step further and apply these principles in practice and memorialize it via documentation. I think it is essential that any transactions for original props have a written record and/or agreement that is very clearly documented.
If you are negotiating with a dealer or individual, I strongly encourage you to, at the very least, put the final terms and conditions of the deal in writing. Preferably, I would recommend negotiating the deal itself in writing. Then there is a history of the negotiations, as well as the final agreement. Given that a great deal of transaction occur over the Internet, it is quite common that negotiations occur via e-mail exchanges by default, which is to everyone’s benefit.
Many people strike deals more casually, and it’s not uncommon for people to then have different understandings of what has actually been agreed to. It is much preferable, in my opinion, to work out the deal in writing, and then once the deal is struck, summarize the important details and have both parties acknowledge that final deal. Then, if there is any issue, both parties can go back to the written contract as a resource and guide as to how the deal was agreed to.
Of course, with a live auction or other such event, the auction house or other entity will have all the particulars spelled out in excruciating detail in advance, and it is more a matter of securing the winning bid.
Obviously, if you are transacting on eBay, the listing itself (once closed) serves as a written contract (along with eBay’s overall rules and regulations).
eBay
One thing I would urge all collectors to do is keep eBay transactions on eBay. Not for the same reasons eBay recommends (i.e. so they get paid), but because there are some protections built into completing transactions appropriately, transparently (publicly), and by the rules.
A closed eBay listing represents a binding agreement for the seller to sell the item and for the buyer to buy the item. Both sides of the transaction are obligated to perform. Now, of course, there are flaky buyers that back out, and typically the only consequence are that the seller might leave negative feedback and might report the buyer to eBay through that (lengthy) process. However, as I understand it, the seller can seek to make the buyer perform and pay for the item. I think it just comes down to the “is it worth it” question, which in most cases, it isn’t.
From the buyer’s perspective, the seller absolutely has to perform. But again, the mechanisms and potential time and cost it might take to enforce these contracts are most often not worth the trouble to force a transaction to completion.
Having said all that, it is still very important to win the auction and have it come to completion. Once the auction is completed, the seller cannot alter the text/content of the listing, so it is “fixed” and set at the close of auction. The terms of the deal are publicly memorialized, so should an issue arise, one has that evidence to point to which is indisputable.
Additionally, given that eBay owns PayPal and that payment option is encouraged, there are additional protections that are “built-in”, but again, a prerequisite is that the deal be transacted on eBay with the seller being the seller and the buyer being the winning bidder.
Payment via PayPal
I know some are not fans of PayPal, but it is, in my opinion, a preferable payment method, along with credit card, compared with cash, wire transfers, money orders, etc.
In paying for a completed eBay auction, PayPal makes a record of the payment being in conjunction with that specific auction, so again, there is a paper trail and no question as to what the funds were intended.
In the event of a transaction gone awry (i.e. wrong product, product not as described, broken product, no product), both PayPal and eBay have processes by which to resolve such “disputes”, following specific tasks and timelines, giving the parties a chance to correct or work out the problem. If this is not accomplished, and PayPal finds in the favor of the buyer, some/all* of the buyer’s funds are returned.
* As far as how much of the money is refunded and under what circumstances is up for debate. In my experience, PayPal’s stated policies don’t necessarily match their actions (sometimes their policy might exceeding their stated policy limits to the favor of the buyer).
I do know, from experience, that if you do not complete your eBay transaction on eBay, PayPal will do very little to nothing to resolve the issue or retrieve the buyer’s funds from the seller, should a serious issue arise (again, non receipt of item, wrong item, etc.).
In summary, it is to your benefit, if transacting on eBay, to use PayPal for payment to take advantage of those built-in buyer protections.
Payment via Credit Card
Getting back to method of payment, and tying into the PayPal section above, an added measure I adopt to protect myself, when paying via PayPal, is to have PayPal take the funds for a purchase from my credit card – not from my bank account (PayPal encourages the latter).
I see it as an added layer of protection. 1) Should an issue arise that warrants a refund, and 2) should PayPal and/or eBay prove ineffective in resolving the issue and obtaining the refund on my behalf, then I know that, as a fall back position, should I be wronged or taken advantage of as a consumer, I have the right to pursue a chargeback with my credit card company.
I have unfortunately had to pursue that last resort option one time, and as I understand from communicating with PayPal, even though they would not retrieve the funds on my behalf without the credit card chargeback in play, once the bank completed their own research and found in my favor, and got my money back from PayPal, PayPal, in turn, retrieved those funds from the fraudulent seller. Note: I will share the details of this transaction in an upcoming series of bad transaction case studies in future articles.
Aside from the option of using a credit card as a funding source for PayPal, I would highly recommend using credit cards as the method of payment for props in general. Again, you have a record of the transaction, and you have some built-in protections (and some cards, such as American Express, have additional protections).
As an added bonus, if you have a credit card with some sort of awards system (I use a United Visa Card, for example), you can accumulate miles or cash back or other incentives by using your card, even if you pay it off immediately. So if you buy a high cost prop, you can have build some mileage bonus miles or other equity in acquiring new pieces.
Other Payment Methods
I personally would highly discourage payment via methods other than PayPal (funded by credit card) and credit card.
If you pay via check, and there is an issue, your avenue of recourse is limited. This is also the case with money orders, bank wires, Western Union, etc. I just think it’s an unnecessary risk. If a seller won’t take a credit card or PayPal, I often use that as reason enough to not transact with him.
I would make two exceptions: 1) the seller is well known to you and trusted or 2) if you are conducting a transaction in person, where you can inspect the item(s) and take it/them with you.
Having said that, I paid one well known Internet dealer (that I had completed dozens of transactions with) tens of thousands of dollars for a prop via bank wire transfer, and the funds were “gone” before I physically received the item, and the item was not as described.
So again, I would strongly caution everyone to take every consideration and precaution in how they pay for items, and to consider every contingency, regardless of how unlikely it may be, as possible.
At worst, being overly cautious might annoy the seller, but there are a lot of sellers and a lot of original props. Never lose sight of that.
I have never used any sort of escrow service or third party to hold payment until receipt and inspection of goods, but I think it is a great idea and worthy of exploration on higher end items or in buying from sellers with no history/reputation.
Collection Insurance
As noted in my article, Insuring Your Original Prop Collection, having such policies in place on your collections often have the added benefit of having some coverage on the purchasing of new pieces. With my own policy, I know that when I had the one issue touched on above in regards to PayPal not being of much help with an “off eBay” transaction, I had contacted my insurance company and explained the facts and circumstances, and they informed me that they would reimburse me for my loss, if filed with them. I ended up pursuing recourse with the credit card company instead (and by extension forcing PayPal to act on the seller) in that, though it was more work and time consuming, on general principle, I wanted to force the fraudulent seller to make good on his actions.
Anyway, such a policy (and you would need to confirm the particulars with the insurance company) acts as a great “safety net” and offers piece of mind in that you have another avenue of recourse should you be taken advantage of in a transaction. Of course, no one should abuse such features of their policy, and I would personally only exercise it as a very last resort.
My philosophy, overall, is to create layers of protection with any transaction.
Shipping Considerations
Outside of negotiating, making a contract, remitting payment, and resolving issues, one other critical component of any prop deal is delivery of the goods. This is quite often not addressed at all in negotiations (outside of responsibility of cost of shipping).
As a result, the seller typically ships the item out as economically as possible (translation: spending the least amount of money he can get away with on box(es), packing material, carrier, and shipping method).
I think it is very important to address shipping as part of the deal and before finalizing the agreement, not as an afterthought. Most critical is that items are shipped using a service that is can be tracked/traced door to door, as many protections require shipping service that has tracking.
It is important to express your expectations in terms of:
- processing time (i.e. when will it actually be taken to the carrier and shipped),
- quality and level of packaging (i.e. will proper materials be used? will it be double boxed?),
- carrier (i.e. FedEx, UPS, Postal Service, etc.), and
- level of service (i.e. Overnight, Two-Day, Ground, etc. as well as tracking capabilities and insurance).
Every one of these factors is very important and every single one should be addressed on the front end.In my experience, if I get the sense a seller is not conscientious in terms of packaging, I will offer to overpay for that service if they commit to have it done professionally. There is no point in buying a prop that will get damaged/destroyed en route. Even in expressing my concerns explicitly, I have still been in receipt of some horribly packaged props.
I see it as a cost of acquisition – no use pinching pennies. You get what you pay for, and you need to be extremely clear and detailed in your expectations.
Other Considerations
Of course, I could make this article endless, but I think this makes a good primer on some basic considerations for any transaction in regards to some precautions about agreement, documentation, payment, protections, and shipping. I have learned several lessons first hand, and if I had consistently followed these precautions, could have saved myself from becoming entangled in some frustrating issues.
Future articles will address precautions and considerations specific to other areas of interest (i.e. buying from an auction house, etc.).
Jason De Bord
Disclaimer: I am not an attorney and have no specialized knowledge about law and legal terms. This is merely an opinion piece put forth by a layman, with an intention to bring about discussion, debate, and insights in regards to some of the practices we encounter as collectors in the hobby.