Buying and Selling Collectible Cards: How It Actually Works Under Italian Law.

Buying and Selling Collectible Cards: How It Actually Works Under Italian Law.

By Alberto Agostini, co-founder of Studio Agostini & Kasapoğlu, an international boutique law firm with offices in Bologna and Ankara, specialising in the law of collectibles, memorabilia and trading card games.

In brief

The collectible card market – Pokémon, Magic: The Gathering, Yu-Gi-Oh!, One Piece Card Game and other trading card games (TCG) – has developed a vocabulary of its own, and trading customs to match. A card is "claimed" in a group at eleven at night, bids are raised on a livestream, an auction runs with or without a reserve price, a seller posts a "minimum and maximum", another is simply "open to offers". Then the card ships. And sometimes it never arrives.

These are formulae that the law does not name, but which the law nonetheless governs. This article reconstructs the entire sequence of a sale, from the moment the listing goes up to the moment the card reaches, or fails to reach, its destination.

The premise is this: what the market experiences as a single event – "I bought a card and it was shipped to me" – is, as a matter of law, three distinct relationships: the sale, the delivery obligation arising from it, and the contract of carriage concluded with a third party. Keeping them apart is not a taxonomic exercise. It is the only way to answer the question that always arises after the fact, namely who bears the risk when something goes wrong.

Note on scope: this article addresses Italian law, which is the law that governs a sale concluded with an Italian seller or, in many cross-border scenarios, an Italian buyer. Where the position under German and English law diverges, the difference is flagged.

Contents

1. How the market sells: auctions, "claims", "minimum and maximum"

2. Formation of the contract and passing of property

3. Shipping: risk, carrier and the ceiling on compensation

4. Sales to consumers: the derogation under the Consumer Code

5. Conclusions and practical guidance for market operators

How the market sells: auctions, "claims", "minimum and maximum"

The card market knows no single form of sale, and each form carries a legal character worth recognising, because the moment the contract comes into existence, and with it everything else, turns on precisely that.

There is, first, the fixed-price "claim", the most common format in social media groups: the seller posts a photograph of the card, describes it, states the price, and awards it to whoever first comments the agreed word. There is the auction, which may run live or unfold over time with bids left in the comments, and which comes in two opposite variants depending on whether the seller has set a reserve price. There is the "minimum and maximum" formula, where a starting threshold and a buy-it-now price are both given, and a small auction opens between the two in the comments. And there is the "open to offers" listing, where the seller displays the card without a price and merely invites proposals. In the background sit the structured platforms, where the operator's own rules predetermine the moment of conclusion.

These formats, it should be noted, are the same across every corner of the hobby: whoever sells Pokémon cards, whoever deals in Yu-Gi-Oh!, whoever trades Magic: The Gathering and whoever follows One Piece Card Game uses the same vocabulary and the same customs, and therefore runs into the same legal problems.

Offer to the public or invitation to treat

Beneath the jargon, however, these categories conceal only two models.

The first is the offer to the public (offerta al pubblico), which art. 1336 of the Italian Civil Code treats as a genuine contractual offer where it contains the essential terms of the contract it is directed at concluding, unless the circumstances or usage indicate otherwise. The second is the mere invitation to treat (invito a offrire), by which the person posting binds himself to nothing, but solicits proposals from others and reserves the right to accept them.

The distinction is not academic. Whether the seller is already bound, or still free, depends on it.

The auction and the reserve price

The auction follows a further logic, worth spelling out, because the market tends to misread it.

In an auction with a reserve price, the seller fixes in advance, and without disclosing it, the threshold below which he does not intend to sell. If the bidding reaches it, the card sells; if the bidding stays below, the auction is treated as though it had never been knocked down. This is not, therefore, a change of heart after the fact, but a predetermined condition, whose operation depends not on the seller's mood but on an objective figure.

In an auction without reserve, by contrast, the seller undertakes to knock the card down to the highest bidder. Here the price, though not fixed, is ascertainable by the mechanism announced, which satisfies the requirement of art. 1346 of the Civil Code, and the binding force lies in the listing itself. The "minimum and maximum" formula, finally, is a hybrid structure: the ceiling operates as a fixed-price offer, the floor as a reserve.

Formation of the contract and passing of property

When the contract comes into existence

The fixed-price "claim" belongs, as a rule, to the first model. The listing identifies the card and fixes the price, and so already contains everything required: it is a genuine offer. The comment by which the first interested party claims it is, correspondingly, a genuine acceptance.

The contract is concluded, accordingly, at the moment that acceptance reaches the seller, under the rule in art. 1326 of the Civil Code, with the presumption of knowledge that art. 1335 attaches to the arrival of the declaration at the addressee's address. The seller's confirmation is not required: what is required, and all that is required, is that the acceptance has reached him.

The "open to offers" listing, by contrast, sits at the opposite end. Lacking any statement of price, it does not contain the essential terms, and operates as an invitation to treat. There the proposals come from the interested parties, and the contract is concluded only if and when the seller accepts.

The deleted comment

From this characterisation follows the answer to the case that recurs most often in practice. It happens with some frequency that a seller, disappointed by the bidding or having second thoughts about the price, deletes the winning comment and reopens the sale.

It will be said, and this is the objection worth meeting head-on, that he has done no more than revoke his own offer, as the second paragraph of art. 1336 permits, provided the revocation is made in the same form as the offer or in an equivalent form.

The objection does not hold. Revocation presupposes that the contract has not yet been concluded, since what is concluded cannot be revoked: it is either performed or breached. If the acceptance had already reached the seller, the bond came into being at that instant, and deleting the comment does not touch the contract. It merely deletes the trace of it. And that trace remains recoverable, since electronic reproductions constitute full proof of the facts they represent unless the party against whom they are produced disputes their conformity (art. 2712 of the Civil Code).

As a matter of substance, therefore, a refusal to deliver is a breach, and opens to the buyer the ordinary remedies. And even if the listing were characterised as a mere invitation to treat, the seller is not for that reason free, since the duty to act in good faith in negotiations remains (art. 1337 of the Civil Code), and its breach founds pre-contractual liability.

The consensual principle and the moment property passes

Once the contract is concluded, it must be established when the card ceases to belong to the seller. Under Italian law the answer is unequivocal: neither delivery nor payment is required, because property passes by force of the consent lawfully expressed (art. 1376 of the Civil Code). This is the consensual principle, the transfer of property solo consensu.

Translated into the practice of the hobby, this means the following. If at ten in the evening the seller posts a card at three hundred euros, and a minute later the first interested party claims it, then at one minute past ten that card already belongs to the buyer. And it does so even though it is still sitting on the seller's table, in its sleeve, waiting to be packed. The seller has physical custody of it. He no longer owns it.

A qualification is required for generic goods, meaning goods identified only by kind, a category which covers, for instance, the purchase of a sealed box not yet identified as a particular unit, or of a lot to be drawn from stock. Here property does not pass on consent alone, but on identification (individuazione), and art. 1378 of the Civil Code provides that, for goods that must be carried from one place to another, identification also occurs by delivery to the carrier or freight forwarder. For an undifferentiated sealed product, therefore, the moment of transfer coincides with shipping. For a single card identified in a photograph, it does not: it passed long before.

A comparative note: this is not the rule everywhere

It is worth adding, for anyone buying or selling across borders, that the consensual principle is by no means universal. The widespread intuition that property passes when the goods arrive is not absurd. It is the reflection of a different legal system.

Under German law the contract of sale generates obligations only, and the transfer of property requires a separate real agreement accompanied by delivery (§ 929 BGB), on the principle of separation between the obligational and the proprietary transaction. English law, by contrast, and contrary to an equally widespread assumption, converges with the Italian rule as regards specific goods, since the Sale of Goods Act 1979 passes property when the parties so intend and presumes it to pass on the making of the contract for specific goods in a deliverable state (ss. 17 and 18, rule 1).

The real divide, then, does not run between Rome and London. It runs between Rome and Berlin.

From theory to practice: the law and the market

The above is what the law says. Then there is the market, and it is worth saying so plainly, because a treatment that suppresses the distance between the rule and its application is a treatment of no use to anyone.

In theory the contract is concluded, the card already belongs to the buyer, and the remedies for breach are all available. In practice, however, it is rare for anyone to go to court over a single card, since the cost of litigation almost always exceeds the value of the individual transaction, and the point holds as much for the buyer as for the seller. The protections that actually operate in this sector remain extra-judicial, and the sanction most feared is not a judgment but exclusion from the group and the loss of standing within the community, which in the hobby is the real capital of anyone who sells.

None of this detracts from the legal framework. It places it, rather, where it belongs: as a tool that serves, before it serves to litigate, to structure the relationship properly, and to know, when the relationship breaks down, who is right and on what.

Shipping: risk, carrier and the ceiling on compensation

Here lies the most common misconception, and it is worth dispelling squarely. By the time the shipment is being prepared, the contract of sale has already produced its principal effect, the transfer of property. What remains on the seller is no longer to sell, but to deliver. Shipping, in other words, is not the sale: it is the means by which an obligation arising out of the sale is performed, and it is resorted to only because the parties did not meet.

And there is more, because in order to perform that obligation the seller concludes a further contract, distinct from the first and with a third party who is a stranger to the sale: the contract of carriage, by which the carrier undertakes, for consideration, to move goods from one place to another (art. 1678 of the Civil Code).

Three relationships, then, and not one. Whoever keeps them apart grasps without effort how the seller can already be discharged while the card is still in transit. Whoever conflates them does not.

Res perit domino: risk follows property

Since property has passed, risk passes with it. This is the rule handed down in the maxim res perit domino, the thing perishes for its owner, which art. 1465 of the Civil Code renders operative by providing that, in contracts transferring ownership of a specific thing, the perishing of the thing for a cause not attributable to the transferor does not release the transferee from the obligation to render the counter-performance, even though the thing has not been delivered to him.

The maxim is worth unpacking, because behind the Latin lies a very concrete consequence. If the card is lost or destroyed in transit, and the loss is not attributable to the seller, the buyer receives nothing and must nonetheless pay the price; and if he has already paid, he cannot recover it. The reasoning is coherent, however severe it may appear: at the moment of the loss that card was already his, and a person who loses his own property has no claim for the price against the party who lawfully transferred it to him. The seller has not sold badly. He has simply sold.

This does not mean, it should be stressed, that the buyer is left without a remedy. It means that his remedy looks elsewhere: not to the seller, but to whoever had physical custody of the card when it disappeared, that is, the carrier.

Delivery to the carrier discharges the seller

The rule finds its completion in art. 1510, second paragraph, of the Civil Code, under which, absent agreement or usage to the contrary, where the goods sold must be carried from one place to another the seller is discharged of the delivery obligation by handing the goods over to the carrier or the freight forwarder, the costs of carriage remaining with the buyer.

The seller, therefore, does not have to make the goods arrive. He has to make them leave. From the moment he entrusts the parcel to the courier his obligation is performed, and what happens afterwards belongs to a relationship that is no longer his.

It will be said that the outcome is harsh on a buyer who pays without receiving. The objection, however, proves too much, because the rule is not mandatory: the words "absent agreement or usage to the contrary" allow the parties to provide otherwise, and this is what happens under a "franco destino" clause (delivery at destination), where the seller retains the risk until the goods arrive. Nothing prevents the seller from assuming the risk of transit himself. All that is required is that the parties say so. And since usage in the card market is anything but uniform, and listings almost never address the point, silence hands the matter back to the default rule, and therefore to the buyer.

The carrier's liability

Against the carrier the position is, in the abstract, a strong one. Art. 1693 of the Civil Code makes the carrier liable for the loss of and damage to the goods handed over for carriage, from the moment he receives them until the moment he redelivers them to the consignee, unless he proves that the loss or damage resulted from an act of God, from the nature or the defects of the goods themselves or of their packaging, or from an act of the sender or of the consignee.

This is liability ex recepto, grounded in the taking of the goods into custody, and it reverses the burden of proof: it is not for the injured party to establish the courier's fault, but for the courier to prove a cause not attributable to him. It should be noted in passing that defective packaging is the carrier's first and most effective defence: in this sector, the few-cent bubble mailer, without reinforcement or a rigid protector, is a gift the sender makes him.

As to standing, the consignee acquires the rights arising under the contract against the carrier from the moment the goods arrive at their destination, or from the moment when, the period having elapsed, he demands their redelivery (art. 1689 of the Civil Code). Until then it is the sender who can act, which in practice means that the seller must be brought in rather than left aside.

The ceiling: one euro per kilogram

That said, the protection against the carrier meets a limit which, in the collectibles world, separates the right from the recovery.

Art. 1696 of the Civil Code provides that damages for loss or damage are calculated by reference to the current price of the goods carried at the place and time of redelivery, but goes on to provide that the compensation owed by the carrier may not exceed one euro per kilogram of gross weight of the goods lost or damaged, in domestic carriage by land. For international carriage by land the provision refers to the limit in art. 23(3) of the Geneva Convention of 19 May 1956 on the Contract for the International Carriage of Goods by Road (CMR), ratified in Italy by Law No. 1621 of 6 December 1960; for other modes, to the limits of the applicable conventions or special legislation.

For this sector, the arithmetic is merciless. A card weighs under two grams; a properly packed bubble mailer perhaps fifty. The "full" compensation owed by the carrier for a first-edition Charizard worth three thousand euros lost in domestic carriage is therefore measured in cents.

The limit may not be derogated from in the carrier's favour save in the cases and by the means provided for in applicable special legislation and conventions. Nothing, however, prevents the parties from agreeing greater liability, and this is precisely the function of a declaration of value and of the cover offered as an ancillary service. The limit, moreover, falls away entirely where wilful misconduct or gross negligence is proved on the part of the carrier, of his employees and agents, or of anyone else he has engaged to perform the carriage.

It is in this asymmetry, and nowhere else, that the disappointment of anyone entrusting a valuable card to a plain envelope on the strength of the courier plays out: the right exists, but its measure is calibrated on the weight of the goods, and a card weighs nothing while being worth everything.

Time bars and limitation

To the ceiling are added the time limits, which are tight.

Art. 1698 of the Civil Code provides that receipt of the goods carried without reservations, coupled with payment of what is owed to the carrier, extinguishes the actions arising under the contract, save in the case of wilful misconduct or gross negligence. Actions for partial loss or for damage not detectable at redelivery are preserved, provided the damage is notified as soon as discovered and no later than eight days after receipt.

Signing for a parcel without reservation, then, burns any complaint as to what was visible, and opens a window of eight days only for what was not. It goes without saying that the time bar presupposes receipt, and therefore does not operate in the quite different case of a parcel that never arrived. As to limitation, rights arising under a contract of carriage are time-barred after one year (art. 2951 of the Civil Code).

Inspecting the parcel in front of the courier, and entering a reservation on the consignment note, are in the end what keeps the claim alive.

Sales to consumers: the derogation under the Consumer Code

Everything set out above belongs to the general law. The picture changes radically, and indeed inverts, where the seller acts as a trader and the buyer as a consumer, because here a protective rule intervenes which expressly derogates from res perit domino.

Art. 63 and the criterion of physical possession

Art. 63 of the Italian Consumer Code (Legislative Decree No. 206 of 6 September 2005, as replaced by art. 1 of Legislative Decree No. 21 of 21 February 2014, implementing Directive 2011/83/EU) provides that, in contracts under which the trader is obliged to dispatch the goods, the risk of loss of or damage to the goods, for a cause not attributable to the seller, passes to the consumer only when the consumer, or a third party indicated by him and other than the carrier, has acquired physical possession of the goods.

The criterion is no longer ownership but physical possession, and the substitution is deliberate. Until the card is in the consumer's hands the risk of transit stays with the trader, who, if the parcel goes missing, must reship or refund the price, and can demand nothing from a person who has not received what he paid for.

The rationale is transparent, and worth stating because it explains the provision better than any exegesis: to induce the trader to ship with care, and not to load onto the distance buyer the hazard of a carriage he neither arranges, nor selects, nor controls.

The exception where the consumer commissions the carrier

The derogation admits one exception, and a narrow one. The second paragraph provides that risk passes to the consumer on delivery to the carrier where the carrier was commissioned by the consumer and that choice was not offered by the trader, without prejudice to the consumer's rights against the carrier. The reason is that a courier chosen by the consumer takes on the character of his own agent, so that handing the goods to him is equivalent to handing them to the consumer.

Note, however, how narrow the exception is: it is not enough that the consumer selected a shipping option from among those presented by the trader, since in that case the choice is not free, being confined to a range set by someone else. For the exception to bite, the initiative in engaging the carrier must genuinely be the consumer's.

Who actually counts as a trader

It remains to establish who is a trader, and in the card market the question is anything but academic.

The characterisation is substantive, not formal. Under art. 3 of the Consumer Code, a trader is a person acting in the exercise of his own entrepreneurial, commercial, craft or professional activity, or an intermediary acting on his behalf. It is not, therefore, the VAT number that makes the trader, nor its absence that rules him out: what counts is the manner in which, in the concrete case, a person acts in the particular transaction.

The Court of Justice has mapped the boundary precisely in the context of online sales. By judgment of the Fifth Chamber of 4 October 2018 in Case C-105/17, Kamenova, the Court held that a natural person who publishes on a website, at the same time, a number of advertisements offering new and second-hand goods for sale may be classified as a trader only where that person is acting for purposes relating to his trade, business, craft or profession, a matter for the national court to verify in the light of all the circumstances of the case. The Commission, in its guidance on the Consumer Rights Directive, has summarised the point by observing that the relevant indicia are neither exhaustive nor exclusive, and that the mere fact of pursuing a profit, or of publishing several advertisements at once, is not in itself sufficient to classify a seller as a trader.

Applied to this market, the result is a very wide and very crowded grey zone. The collector who opens packs for pleasure and sells on what he does not need is not a trader. But a person selling with system and organisation, with price lists, dedicated channels, continuity and stock, may well be one without ever having registered for VAT, and may find art. 63 applying to him without suspecting it. The assessment is made on indicia, case by case, and no formula substitutes for it.

Conclusions and practical guidance for market operators

The map: three scenarios

A clear map emerges.

In a sale between two private individuals, which is the bulk of trading between collectors, the general law applies: once the parcel is handed to the courier the risk is the buyer's, who pays the price and pursues the carrier within the limits described. In a sale between two traders the position is the same, since the Consumer Code presupposes a consumer and does not apply between businesses. Only in a sale by a trader to a consumer does the risk of transit remain with the seller until physical possession passes, subject to the case of a carrier genuinely commissioned by the consumer.

It is not, it should be stressed, a question of status or of labels. It is the capacity in which a person acts in the particular transaction that governs the outcome, so that the same person may be a trader in the morning, selling from his shop, and a consumer in the evening, buying a card for his own collection.

The in-person exchange

All of which said, the best solution, where it is available, remains the oldest: meet.

An in-person exchange removes at a stroke the entire apparatus just described. There is no carriage, therefore no carrier, no hazard of transit, no compensation ceilings calibrated on weight, no reservations to enter on receipt and no eight-day windows to observe. And there is, above all, what no shipment can ever offer: inspection on the spot. You look at the card, you examine it, and only then do you pay.

The hazards proper to a meeting remain, but they are of a different order and are managed differently, from choosing a public place to exercising care over payment. On the point that concerns us here, however, the reasoning is as simple as it is conclusive: a parcel that does not arrive is not a problem, if the parcel never leaves.

Practical guidance

The practical points follow from the position occupied, and they differ.

A seller acting as a trader, knowing that he bears the risk of carriage until physical possession passes, has an interest in shipping by tracked and covered carriers, in preserving proof of arrival, which is the moment risk passes, and in not confusing dispatch with discharge, which in a consumer relationship occurs only on receipt.

A seller acting as a private individual, to whom risk transfers on handing the goods to the courier, still has an interest in documenting the handover and the packaging, and in making the shipping terms known to the buyer.

A buyer purchasing from a trader is protected by art. 63 and may wait without bearing the hazard of transit. A buyer purchasing from a private individual bears that hazard, and would do well to agree tracked shipping and, for valuable pieces, a declaration of value that lifts compensation clear of the one-euro-per-kilogram ceiling.

Anyone receiving a parcel should open it in front of the courier, entering a reservation on the consignment note at the first sign of tampering, since the reservation is what keeps the claim alive.

Above all, one methodological caution remains. The legal fate of a distance sale is decided before the shipment, in the few lines of an agreement stating who engages the courier, when delivery is to be treated as performed, and what value is declared. It is there, and not in the complaint that follows, that the difference is made between an orderly relationship and a dispute whose outcome is already settled.

About the author

Alberto Agostini is the co-founder of Studio Agostini & Kasapoğlu, an international boutique law firm with offices in Bologna and Ankara, and is admitted to the Bologna Bar Association. His practice is primarily devoted to commercial and contract advisory, with particular focus on Italy-Turkey cross-border operations and the collectibles and memorabilia market.

In the collectibles, memorabilia and trading-card market, he advises industry operators, online platforms and marketplaces, auction houses, grading services, professional dealers, specialist retailers and high-end collectors operating across Pokémon, Magic: The Gathering, Yu-Gi-Oh! and One Piece Card Game. His work includes the drafting and negotiation of terms of service, auction rules, consignment, deposit and custody agreements, as well as the resolution of disputes concerning authenticity, grading outcomes and the professional liability of market operators.

He is the author of published work on civil liability in grading services for collectibles and on the ecosystem of Italian legal data for artificial intelligence.

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