Rainwater Tank 1100 Litre £1498.00now£50.00@B&Q smaller one also avail for same price

TBeckett100

This is where having screen shots helps

Thank you for your emails regarding your complaint about B&Q. I am now in a position to respond to you in more detail as set out below.
You raise a number of points that I will address in turn -
1. No link to terms and conditions on the www.diy.com website.
I viewed this website and several of its pages and found the link to the terms and conditions right at the bottom of the page dated 2009.
It could be argued that the terms and conditions are available on their pages for customers to view and that customers should make it their business to read them. However, if B&Q are wanting customers to know about them and rely on them they should be prominent enough so there is less chance of them being missed when browsing the website.
As far as I am aware, there is no legal requirement to have customers click to say they have read and understood the terms and conditions although many companies do have this facility.
You mention in a later email that this link to the terms and conditions was added after you placed the order for goods. Should this be the case, and there were no terms and conditions on the website for you to look at when you placed your order, it would be difficult for B&Q to try and rely on them as you could argue they were not part of your contract at the time it was formed.
2. No link to terms and conditions when browsing.
The website currently has terms and conditions on all the pages I viewed. The pages were viewed 17/7/2009. I am not in a position to know when this might have been added.
3. Orders accepted by taking payment and issuing confirmation emails.
Whether or not there is a contract would depend on the information, including contract terms, available to you at the moment you submitted your order and received acknowledgement. If it was made clear that acceptance had not taken place, it is likely that no contract was formed. If the acknowledgement of order did not make this clear, however, it may be considered that there was acceptance of your order and a contract was made.
I do not have sight of your confirmation email so I am unable to comment further on this point.
The current terms and conditions state the acknowledgement email is not acceptance of your order. Again, it will depend on the wording of this email. The terms and conditions go on to say that acceptance takes place 7 days after the date of the order or when the goods are delivered whichever is the earlier provided B&Q have not written to you stating they don't accept your order or you have cancelled your order.
4. Different Terms and conditions
If the terms and conditions you relied on were different, you should rely on the terms and conditions that were available to you at the time of the contract. I assume from your later email that this link - http://www.diy.com/diy/jsp/bq/templates/content_lookup.jsp?content=/wcn/static_content/help/terms.jsp takes me to the terms and conditions you were relying on when you placed your order. If this is the case, they state your contract is formed when money is taken, and a confirmation email is received.
5. Loss of bargain.
If there is a contract with B&Q, and they subsequently change their position about this and cancel an order, you could have a possible claim for loss of bargain. I always understood this to mean you would have to show what this loss would be so there would need to be some reference to the cost of the item purchased elsewhere in order to establish the loss. If the same product was available at the same price, there would be no loss.

6. Unfair Terms
Consumer contract terms should ensure a fair balance of rights between the parties. Whether a contract term is fair may depend on how it is used e.g.
"We may choose not to accept your order for any reason…" While it is true that B&Q are not obliged to do business with anyone if they choose not to, they would not be entitled to use the term to release themselves from a contract if they have already made one.
Ultimately, only a judge can decide on the fairness or not of terms and conditions in a contract and whilst we may all have a view, it will be an opinion based on experience and knowledge gained to date.
I am sorry if this email is rather long.
If you can show there is a contract with B&Q, and they are in breach because they can no longer supply the product, you would have a possible claim for loss of bargain.

Lynsey

Terms 4 and 6 say it all really for me.

Was a contract formed? Answer YES
Can they just release themselves from a contract? Answer NO

Obviously my views only, and not legally binding - but looks so obvious to me.

Lynsey

frugalfran

Thanks for putting up the reply, Tom. It looks encouraging!

frugalfran

I have no interest in the legal site that offers this (see below) at all, (so have not quoted their name) but perhaps certain others should do some research - it's not hard to find - even for me! The cost is less than one heavily reduced water tank!

Who needs us?

Any UK e-commerce site! If you are trading online, selling to consumers, you need up-to date terms of sale and a privacy policy.
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1) A cancellation and returns policy compliant with latest EU regulations.
2) A disclaimer to cover pricing errors etc on your web site.
3) Details on the establishment of the contract with your customer.
4) Important terms of use for visitors to your web site.
5) A standard privacy policy covering use of customer information.

balloonist

From Trading Standards, Hants

Thank you for your email regarding a complaint about B&Q.
When you enter into a contract it will be subject to the terms and conditions available to both parties. These will form the basis of your agreement. However, there is no legal obligation to ensure you confirm they have been read and understood although this may help add certainty should there be any misunderstanding on this point.
Normally contracts are concluded when an offer is made and accepted and payment is received. However, there may be some differences to this process but it needs to be clear at the time of entering into a contract what this process is so both parties have the same understanding.
Loss of bargain can arise when a contract is made and subsequently cancelled leaving one party to potentially suffer a loss. If you need to buy the product elsewhere at a higher price, the potential loss of bargain claim is the difference in the contract price and the new price for the product. If the original contract had been fulfilled, you would not have to go elsewhere to buy the product and pay a higher price.
I have no practical knowledge of successful loss of bargain claims as we get very little feedback should cases go to court. Not forgetting that small claims does not normally set a legal precedent for subsequent cases.
If you believe there is a contract, and you have to pay a higher price to buy the product elsewhere you may have a possible claim for loss of bargain but it will be for you to pursue the company through the courts if you are not able to negotiate a suitable remedy with the company.
Terms and conditions need to be fairly balanced for contracting parties to know what they are and to be able to rely on them throughout the contracting process. Terms and conditions in isolation may be considered unfair but when looked at in the context of the contract may not be unfair as overall, the contract is fairly balanced for both parties. Ultimately, only a judge can decide on the fairness or not of terms and conditions in a contract and whilst we may all have a view, it will only be an opinion based on experience and knowledge gained to date.
Consumer contract terms should ensure a fair balance of rights between the parties. Whether a contract terms is fair may depend on how it is used e.g.
"We reserve the right not to supply you at our discretion...." While it is true that B&Q are not obliged to do business with anyone if they choose not to, they would not be entitled to use the term to release themselves from a contract if they have already made one.
I trust this information is helpful but should you require further advice, and you do not live in Hampshire, you will need to contact your local Trading Standards Office. Using the following link will help you with this - http://www.tradingstandards.gov.uk/ You need to enter your postcode at the top of the page and it will provide you with details of your local Trading Standards office and their contact details

Pocoyo

I have received a similar reply from Trading Standards. Most encouraging.

TBeckett100

brilliant. Everyone should complain to trading standards to get a response for their "evidence" to use in court.

TBeckett100

This is no strictly true.

Anticipatory breach of contract
Contract Law


Solicitors & Lawyers
Legal Definitions


Term: anticipatory breach of contract
1.
In contract law, where a party unequivocally evinces an intention that they will not perform executory consideration when performance falls due under a contract, the party will be in anticipatory breach of contract. At this point in time, the innocent party may elect to accept the renunciation of the contract, terminate it and sue for damages for the anticipatory breach. No further performance is required under the contract by the innocent party.
In cases where the renunciation is accepted, it is the renunciation that constitutes the cause of action, and not the future breach.
The party in breach is not entitled to tender performance at a later date and claim under the contract, as it has already been terminated
It is also open to the innocent party to wait for the time of performance and again call on the other party to perform. This may amount to an election, in that the innocent party has selected a particular course and waived its rights in respect to the anticipatory breach.

Usage: The customer terminated the contract for an anticipatory breach of contract when the supplier renunciated the contract by stating that he did not intend to deliver the goods.

fantafan

I haven't contacted TS at all. Should I send them an email to support the claim? Any recommendations on content or just similar to the initial letter?

TBeckett100

I will cut and paste some wording in a bit