MONEY MORAL DILEMMA: Should Alan give the laptop back?

francesgarrett

Not long ago you posted that a large grocery chain had made a mistake in their flyer and had advertised a very expensive bottle of whiskey for less then a quarter of its real price. You Martin advised people to go to the shop, show and insist they honor the price even though it was an obvious mistake. So whats the difference here.

Attlee

Several contributors to this thread are interested in the legal position here. May I try to clarify?

Some preliminaries. (I can’t say anything briefly – one of the many disabilities of being a lawyer.) First of all, it is always possible to come up with clever legal arguments. Occasionally you manage to persuade the court to do something unexpected. I’ll just try to say what the likely legal position is. In other words, what a court is likely to decide if asked to determine the matter.

Secondly, many moneysavers here clearly know a bit of law. A few people in this thread have referred to legal principles. But it’s worth being careful about drawing conclusions too confidently until you really know your way around. For example, Rocketeer says that a contract is based upon offer and acceptance, that here there was an offer and acceptance, and that therefore it is a binding contract. Well, Rocketeer’s right that contracts need offer and acceptance. But it’s certainly not true that every offer and acceptance form a legally binding contract. Nor does it follow that a contract can’t be a criminal offence. (Imagine an otherwise valid contract to sell cocaine. Try suing for non-delivery of the cocaine.)

Thirdly, some people have effectively said that this must be legal because it would be unjust if it was illegal. But the law is surprisingly often unjust, often in ways that protect the rich and powerful (including big businesses) from the rest of us. That’s why I became a lawyer. I’m not saying I agree with it. I’m just saying what the courts would be likely to decide.

OK. Here’s my analysis.

First of all, there are two important legal questions. One is: is there a contract? The other is: is this theft? They are separate, though related.

Is there a contract? I think there probably isn’t.

As others have pointed out, if there is a contract it is formed at the check-out. There does indeed have to be an offer. The cashier is an agent of the shop. Alan is dealing with the shop through the cashier. We’ve been told that Alan knows there was an error. In other words he definitely knows that the shop, for whom the cashier acts, does not intend to sell the laptop for £3.99.

It’s not a binding contract if Alan knew, or should have known, that there had been a mistake by the shop or by the cashier.

(Someone asked for case law. I’ve drawn the words of that previous sentence almost straight from the judgment of Mance J in OT Africa Line v Vickers [1996] 1 Lloyd’s Rep 700 at 703. The classic case is Hartog v Colin & Shields [1939] 3 All ER 566. It’s a laugh. The defendant mistakenly offered 30,000 Argentinian hare skins for sale priced per pound instead of per hare skin. In the circumstances Mr Hartog couldn’t possibly have believed that that was what they had intended. So, despite apparently having entered into the contract at this price, there wasn’t a contract.)

There are some other tricksy legal arguments that the shop could use. But I think the bottom line is that there probably isn’t a contract.

Several people have referred to recent examples of what the courts call ‘snapping at an offer’ when something has mistakenly been offered at a very low price. All I can say is that we’d need to look at them individually to work out the legal position for each of them.

So I think that’s Alan’s position in contract law. If I’m right, the shop could sue Alan for the return of the laptop (in the tort of conversion, or possibly restitution, if you really want to know). Alan could get his £3.99 back, obviously.

Having a receipt doesn’t change whether or not there was a contract. (Sorry, adouglasmhor.)

Is it theft? It may be.

There are five elements of theft. You need all of them for it to be theft. We can safely tick off four of them here without analysing them because (honestly) they aren't controversial.

(Say if you really want an explanation. And, if you know a bit of criminal law you may be wondering about appropriation. Section 3(1) of the Theft Act 1968, and related case-law, define it extremely widely. The shop’s apparent consent, through the cashier, is irrelevant – Gomez [1993] AC 442.)

That leaves the fifth element, dishonesty. Dishonesty isn’t a technical term. Whether taking the laptop when clearly knowing of the mistake is dishonest is for the magistrates or the jury to decide. (In fact it requires (i) that it is dishonest according to the ordinary standards of reasonable and decent people, and (ii) that Alan realised this. For any remaining nerds: Ghosh [1982] QB 1053.)

One consideration (from section 2(1)(a) of the Theft Act 1968) is that it’s not dishonest (and so not theft) if Alan believed he had the right in law to take the laptop.

Dishonesty is a matter of opinion. It’s up to the magistrates or jury. All I can say is that I think a lot of magistrates and juries - probably most - would call this dishonest. The dishonesty is keeping schtum when he knows the cashier has made a mistake. It’s also worth bearing in mind that magistrates and juries tend to think a bit differently from the sort of people like you and me who hang out on this forum.

So the bottom line is that I think that Alan runs at least a theoretical risk of a conviction for theft. In practice, whether the shop would take it further, and whether anyone would bother to prosecute, is not very likely.

But I just don’t think you can correctly say that this is definitely not theft in English and Welsh law.

xadoc says (I paraphrase) that it’s unlikely that contract law and criminal law would reach different answers. That’s sort of right. Let’s say I’m wrong about the contract, and there is a valid contract. And let’s say it is still theft. The civil court in this situation would simply refuse to enforce the illegal contract. That’s how the courts resolve these conflicts. Hence the example of the unenforceable contract to sell cocaine that I gave above.

We could get into endless legal arguments about whether the existence of a contract (or otherwise) affects the ‘right in law’ defence to theft. Don’t go there. Really that defence simply comes down to whether the magistrates or jury think it counts as dishonest.

So, the bottom line. I think there probably isn’t an enforceable contract here. And I think that, in theory, Alan may be guilty of theft. But it is unlikely that it would ever reach court. If it did, I accept that there is a possibility, but not a certainty, that he would get off (in which case it would not be theft). But I think, if prosecuted, he'd run a real risk of conviction.

And if you’re still awake after that, you’re nearly as sad as me.

Hope that's of some use…

amus

Simple answer here! The store doesnt mind marking up prices, so Alan shouldnt feel guilty about the store marking down the price!!
I had a similar thing happen to me at a well known toy store. They only charged me for one of the items instead of two. I didnt go back and didnt feel guilty, especially when after Christmas both items had gone to half price anyway. So essentially the price I paid for one of the items before Christmas would have been the price I paid for both of the items in the sale after Christmas. How can Alan be classed as stealing because the store has marked down the price, wouldnt that mean that stores are stealing from us when they mark up prices?

Rocketeer

Thanks for the reply Attlee, I clearly must have fallen asleep during my law lecture and confirms my decision to pursue a career in a different direction.

Anyway, I do agree with the main points of your reply including those to be decided by judge and jury.

gvs951

I am saddened by the views of many that it is fair game to take the lap top. An error is explicable in some instances eg getting wrong change etc, but 3.99 for a 399 laptop is clearly wrong.
There is no such thing as a victimles crime and this is in my view right on the line for theft.
I would own up and declare it simply because it would be morally wrong. What if the trainee was to have his salary cut t make up for it - as some waites have to when people walk out of restaurants without paying?
Sorry, failure to own up is just plain wrong.

misha

Attlee wrote: »

it is dishonest according to the ordinary standards of reasonable and decent people

Hope that's of some use…

Thanks a lot, Attlee - as I said several pages ago one can employ a multitude of legal arguments and other intricacies - but everyone on this forum knows (directly or deep inside) that this it is WRONG to take the laptop amd are simply trying to justify and explain away both Alan's action and their own either actual past actions or future hypothetic ones.

It is sad that moneysavers like A.Jones and Gekite spent hours on this topic trying to bury simple and obvious dishonesty under a pile of technicalities. However, I am grateful to Attlee for pulling even that carpet from under their feet. Even law seems in this case on the side of simple morality.

I hope, Attlee, that my 5 pence won't destroy your reputation as a lawyer by being on the same side with a "scary moralist" like myself. Morals are passe, so yesterday and against our progress into the better and brighter future, aren't they?

funnibunni

Would i point it out ?.......no for several reasons

1, they shouldn`t put a trainee on tills on thier first day on their own.

2,computorised till should be programmed to read bar code.

3,Big store should work on their customer skills & service,acknowledge thier mistake but honour it.

Just had to write complaint letter to comet re customer service ......yesterday recived £25 gift voucher .....wo hooo:T

zzzLazyDaisy

On a much smaller scale, this actually happened to me in M&S.

I picked up a top costing £25 but it rang up on the till as £1. I would have been happy to pay the full amount, but the assistant told me that as it had rung up as £1 that was what she had to charge me. So that is what I paid.

As I left the store, someone was hurriedly removing all the other tops from the rail!

Siobhan89

Sorry to pick holes in a good moral dillemma but in English contract law the laptop is not Alans as he knew that the cashier had sold him the laptop at an incorrect price and in knowing that and not correcting it he has voided the contract with the shop. Although on the bright side, most shops will probably knock some money off the real price of the laptop to apologise for the mistake and hassle. P.s. I am a law student I'm not just a geek lol.

jkd_3

Well, it's a dilemna I agree.
However, if the shop did a mistake (favourable to them) I am sure they wouldn't own up.

Technically, legally, if they paid whatever the price, the laptop is the customer's as the contract has been agreed (both agreed on the price).

As someone mentioned earlier, if the shop is a large chain then I wouldn't blink an eyelid, if it was a small independent, I would think again.

Anyway, it would be rare nowadays for a price to be manually typed in as everything is bar-coded so the system would have to be wrong.