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

Alias_Omega

^^ will look forward to it.

Received the letter today from the courts, going to dispute the whole thing. So looking to put all the info together for my day to argue my case, and for B&Q to tell me why the new B&Q Kitchen i bought is missing that intergrated dishwasher i bought from them.

norfolkgrog

Been out of the loop for a few weeks looks as if there has been some interesting developments.

Pocoyo

Also at my blog: http://iwantmywaterbutt.blogspot.com

B&Q are now starting to use a new argument in their defence: the term "Frustration". B&Q will say that a system error constitutes a supervening event that was not caused by the actions of the defendant, for which the contractual terms made no provision for. B&Q will say it is unjust to be held to these terms and conditions.

Whilst still relying on the discretion argument by stating they had choice, they then claim further on that the contract could not be performed. B&Q may have already written to you to stating that the item was incorrectly labelled as "direct from the supplier". Since B&Q staff were responsible for setting up the product via the website correctly, it was B&Q's own fault that the system sold more items than was available. You need to argue to the judge that B&Q were responsible for the computer system and only B&Q! Ask B&Q directly how the system error was caused by an external influence? You should argue that B&Q's failure to maintain their own system properly amounts to Self Induced Frustration - from The Modern Law of Contract by Richard Stone p.392: "If it is the behaviour of one of the parties that, while not necessarily in itself amounting to a breach of contract, has brought about the circumstances which are alleged to frustrate the contract, this will be regarded as 'self induced frustration', and the contract will not be discharged."

If B&Q send you a defence which states that no payment was taken, try going onto their website and ordering something with an expired credit card. An error message will flash up and you will not be allowed to proceed with the order; this is because B&Q refuses to authorise the card. B&Q state when the confirmation email is sent, a contract is formed. It is impossible to receive a confirmation email without first making a valid payment.

lalamb77

Thanks Pocoyo!

I found this while reading into "Frustration":

If a contract is made, and for whatever reason it later becomes impossible to for one party to perform their obligations, then we need to think about frustration. Be careful to note that frustration is about subsequent impossibility; if a contract was impossible to perform right from the outset, then the issue is one of mistake and not frustration!

From the same site:

There are some points to be careful of here:

• A contract isn’t frustrated just because it’s become more difficult or expensive to perform. That’s a risk that you take when you enter into a contract. We’re looking for some sort of physical impossibility.
• The supervening event must be beyond the control of both parties.
• The event must be unforeseeable by both parties.

Not sure they can even claim frustration at all!!

Quotes taken from: http://tutor2u.net/law/notes/contract-frustration.html

Pocoyo

Good find, thanks.

creased-leach

I think an example a friend made of "frustration" was one he studied for his law degree. A hall at the end of a pier had been hired for a function. The pier burned down, and as it no longer exsisted the owners were able to use the frustration clause.

frugalfran

"The Doctrine of Frustration caters for unforeseen events that dramatically change the obligations for a party to perform a promise under the contract, or renders performance impossible.
As the remedy is not readily available, professionally drafted contracts commonly include force majeure clauses to mitigate the difficulty of obtaining relief in the face of unforeseen events."


See also : http://www.lawofcontract.co.uk/


I didn't see this mentioned beforehand - did you? It seems their terms and conditions at the time we ordered - and prior to that - were woefully inadequate to deal with the complexities of their supply chain - hardly "force majeure" imho.

Lynsey

Just got back and a lot to catch up with.
Thanks for all the updates, very much appreciated.
Well, that's their angle, the error. I did mention this earlier as the probable route, but nothing in their T&C's allow for errors as stated. I'm happy to face them with that and armed with the T&C's at the time of purchase.
If B&Q are allowed to break a contract because of an error, could you imagine what "can of worms" this would open up - it's farsical to say the least.
Nothing to fear for us if this is their defence and if defended in court BP's reputation would be ridiculed if losing to a "small fry".
Many, many thanks to Pocoyo for leading on from Tom - you're a star.

To each of us - GOOD LUCK.

Lynsey

squack

this so called system error is obviously endemic to their system, its human error not a system error. there must be many items they have offered on diy.com where they take the money send the acceptance email and then refund it, cos they had a quick look round the warehouse and couldnt find it. not just the dishwashers and the water butts and the garden rooms

taxiphil

Right, a few words to say about B&Q latest bogus "defence" tactic - the doctrine of frustration.

Basically what Pocoyo and lalamb have said is absolutely correct. B&Q can't claim frustration as it only applies when an extraneous event completely outside the control of both parties renders the contract impossible to perform, e.g. a lightening strike destroying a building that one party had contracted to sell to another.

It's laughable and outrageous for B&Q to claim that their own defective online ordering system, which was known by B&Q to be faulty for months if not years beforehand, was a "supervening event that was not caused by the actions of the Defendant".

If B&Q are trying to say they aren't responsible for their own website, then who do they think's responsible for it, the man on the moon? :rotfl:

Case law: Maritime National Fish Ltd v Ocean Trawlers Ltd [1935]

Lord Wright said "...the principle of frustration of an adventure assumes that the frustration arises without blame or fault on either side. Reliance cannot be placed on a self-induced frustration"

But here's the crucial thing you must be aware of - this isn't a defence upon which B&Q would actually use in court (the judge would laugh). This is actually an attempt to blind the claimant with science by using a load of official-looking 'legalese' which they hope will scare the claimant into dropping the case or accepting a vastly reduced out of court settlement. They know the claimants are litigants in person acting without representation and are trying to exploit that fact in the ugliest way possible.

Don't fall for it folks. B&Q are playing dirty (yet again).

Shame on you, Claire Frampton. Solicitors are not supposed to mislead/coerce the other party by knowingly misquoting or misapplying the law. I wonder what the Law Society would have to say about this? I'm within an inch of reporting you to them.