Anyone know contract law? Item delivered not the one in the picture!

BFG_2

Mark_Hewitt wrote: »

No. They don't. Only when the item is supplied is the contract complete.

Wrong, wrong, wrong.

Once they take your money the contract has been formed.

Mark_Hewitt

Then how come we've been hearing differently for years?
Stories of companies advertising something by mistake, taking peoples money and then refunding before item dispatch when they become aware of the error.

Then people on this very site saying that is perfectly legal.

Minds need to be made up here....

4743hudsonj

BFG wrote: »

Wrong, wrong, wrong.

Once they take your money the contract has been formed.

i am afraid you are wrong

contracts are formed when items are dispatched when distance selling. However this is merely a side issue as the item was delivered anyways so a contract was formed.

As for the op, you seem to point to the item you received as being the one described. just the picture differed right?

In this case this would be misleading advertising and you are entitled to keep the watch you received at the price you payed or return it for a full refund.

The company do not have to source the other watch for you and supply it at the price you payed as this was NOT the one described or sold in the contract (merely falsely pictured).

In summary

you have a contract, but its for the lesser priced watch you received not the one pictured, if you wish to return it you are doing so on the basis that it was falsely sold to you. And after your full refund contact trading standards to check their selling practices out as this may or may not have been a mistake.

(ALL OF THE ABOVE IS DONE SO ON THE ASSUMPTION THAT THE DESCRIPTION DESCRIBED THE LESSER PRICED WATCH AS THIS IS WHAT THE OP HAS POINTED TO IN THEIR POST)

BFG_2

hudson,

you sound like you know what you're talking about.........

Is this just a recent change??? I ask as about 2 yrs ago several hundred buyers got items from tesco and iirc woolies as they took payment for an item and then tried to cancel the order.

They ended up sending out the item at the advertised price ........

stebiz

One party’s mistake can make the contract voidable when the mistake concerns a basic assumption on which the contract was formed and has a material effect on the agreement that is adverse to that party. In addition, the adversely affected party must establish that either: (1) the effect of the mistake is such that enforcement of the contract would be unconscionable, or (2) the other party had reason to know of the mistake or his fault caused the mistake.

In the event that online retailers fail to control the methods of contract formation and have formed contracts at the wrong price, companies can resort to the equitable doctrine of mistake instead of absorbing the loss. Unilateral mistake can be grounds for relief.

An unconscionable contract is one which “no man in his senses, not under delusion, would make…and which no fair and honest man would accept…” The contract, if enforced as formed, needs to cause hardship to the adversely affected party.Among other things, courts will consider whether the sale would cause the retailer a loss, rather than merely earn a diminished profit. Unconscionability, however, is not a set standard and therefore not a principle on which to rely.

Stebiz

BFG_2

stebiz

reading your posting makes me think that the retailer can't claim unconscionable, nor cause hardship

Also the other party wouldn't 'know of the mistake' [since retailers often discount significantly]..and it deffo isn't our fault if Tesco etc screws up their online prices.

I'm gonna have to take a look at the DSR wrt when the contract is formed.....as hudson says it's at despatch..although to me it seems strange that a company can take your money and hold onto it for [say] 3/6 months....... until they despatch your goods and you have no recourse [since you don't have a valid contract with them].

4743hudsonj

BFG wrote: »

hudson,

you sound like you know what you're talking about.........

Is this just a recent change??? I ask as about 2 yrs ago several hundred buyers got items from tesco and iirc woolies as they took payment for an item and then tried to cancel the order.

They ended up sending out the item at the advertised price ........

i do believe it was 2000 that the distance selling regulations came into enforcement, could be wrong but hey!

well like i said the contract is formed on dispatch of the item when buying on the phone or over the net (BUT, and a big but, only if the seller specifies this is the case) so if they dont say when contract is formed or something related to that then they cannot later use this as you can say it was formed at payment, but in my experience, ive NEVER found a site that hasnt had contract completed on dispatch clauses somewhere on the website and i dont know anybody else who has either as its no brainer for companies to do as it protects them in the case of pricing mistakes that are spotted and other errors that if this wasnt in place, they would lose out on 1000's of time more (eg a mistake in a shop may lead to 2-3 people benifitting, a website would lead to thousands... if you catch my drift...)

but in your case that you mentioned, i dont know why they honoured the purchase, i can think of 3 reasons

1)they had sent the goods already
2)they had no clause saying contract formed on dispatched.
3)they got alot of bad press or complaints and decided to honor the price anyways as it wasnt too much of a loss and was the lesser of two evils in their eyes, the other spending time and resources making disgruntled customers happy again.

BFG_2

Hudson

The more I think about it the less I think you are correct...can you point me to the regulation that says 'valid contract only formed upon despatch'???

Cheers

BFG_2

oops..postings passing in the ether...lol

4743hudsonj

BFG wrote: »

Hudson

The more I think about it the less I think you are correct...can you point me to the regulation that says 'valid contract only formed upon despatch'???

Cheers

i cant, as i mentioned above in some detail this is only the case IF the seller specifies this which as i also stated 99.9999999999999999.... you get the idea % of the time they do, at least in my experience, where i buy everything online i can.

what may help you understand is this


When is a contract concluded?
2.22 A contract is concluded when the consumer becomes bound to buy
something and the business becomes bound to supply it. The
conclusion of a contract is determined by the facts in each case.
It is in your interest to make clear to your consumers exactly when a
binding agreement will be reached. For example, you need to explain
if the contract becomes binding when the customer places the order
or only when you confirm that you have accepted their offer to buy.
If you are selling in a way that comes within the definition of an
information society service in the ECRs, you are also required to
explain the technical steps that the consumer has to follow to
conclude the contract. For more information on the ECRs see
Chapter 4 of this guidance.


its taken from the OFT's official guide to DSR's to businesses
http://www.oft.gov.uk/shared_oft/business_leaflets/general/oft698.pdf

there may be the odd website that accepts contract completion on payment but like i said, i have not come across them.

regards