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

BFG_2

Tesco website :
At all times our acceptance of an order takes place on despatch of the order, at which point the purchase contract will be made and you will be charged for your order.

Asda:
Our Website invites You to buy goods from Us. Once You have placed an order on the Website We will send You an order acknowledgement by email setting out what You have ordered with the in-store prices on the day of order. This is not an order confirmation or acceptance from Us. A legally binding contract with You will only arise once We have completed delivering the goods to You. At this time You become the owner of the goods. This means that You will have no legal liability in connection with Your order until delivery is completed.



So they have the 'contract only formed on despatch/delivery' clause, but Tesco say they don't take money until point of despatch and Asda don't mention when they take the money.

I still think that these clauses might well be challengeable.

To my mind once they take your money from your card the contract has been formed.

Otherwise whats to stop...

you cancelling an Asda order as the van pulls up outside the house [since they haven't delivered to you yet]? or

Asda taking your money and not despatching the item for 12 months [and you're powerless because there's no contract??

Or how about this one...Asda delivery all your order bar one item. So in theory there is still no contract formed [since their T&Cs says 'A legally binding contract with You will only arise once We have completed delivering the goods to You.']. You are now perfectly free to cancel your 'outstanding order', ask for your money back [if they have already taken it from your card] [since there is no contract in existence] AND [here's the good bit...] keep the stuff they have already delivered.

bingo_bango

A contract needs 5 elements.

OFFER - You agree to buy the item advertised and provide your details.

ACCEPTANCE - Trader finds they have stock and email you to say they are dispatching the item. They post the item to you.

CONSIDERATION - Trader takes payment from your card.

INTENTION to create legal relations - You wanted to buy the watch, and the trader wanted to sell it. You both intended to enter the contract.

CAPACITY - I'll assume you're not a minor, drunk, or mentally impaired, and likewise for the trader.

Only once all five elements can be said to be in place is a contract formed.

As to the mistake in pricing/picture.

To my mind, this is a vitiating factor. It would appear that we are looking at a cross-purposes mistake.

You thought you were buying watch A. What you were actually buying was watch B which incorrectly had a picture of watch A, but the correct description.

As far as the trader was concerned, they received an order for watch B, which they duly contracted with you for, and dispatched it. You now find that it doesn't match the picture of A (but does match the description of .

In such a case, the contract would be voidable. Case law for this is Raffles v Wichelhaus (1864)

There is also an argument for innocent misrepresentation, but that will only allow you to rescind the contract, or seek damages in lieu of rescission. It still won't get you the watch.

williham

When I spoke to trading standards they said that a contract is formed when money is taken but if they were to refund the money without sending you the item then it would be "hard" to claim anything from them. So I'd say it is properly when they have taken the money and then dispatched the item.

4743hudsonj

bingo_bango wrote: »

A contract needs 5 elements.

OFFER - You agree to buy the item advertised and provide your details.

ACCEPTANCE - Trader finds they have stock and email you to say they are dispatching the item. They post the item to you.

CONSIDERATION - Trader takes payment from your card.

INTENTION to create legal relations - You wanted to buy the watch, and the trader wanted to sell it. You both intended to enter the contract.

CAPACITY - I'll assume you're not a minor, drunk, or mentally impaired, and likewise for the trader.

Only once all five elements can be said to be in place is a contract formed.

As to the mistake in pricing/picture.

To my mind, this is a vitiating factor. It would appear that we are looking at a cross-purposes mistake.

You thought you were buying watch A. What you were actually buying was watch B which incorrectly had a picture of watch A, but the correct description.

As far as the trader was concerned, they received an order for watch B, which they duly contracted with you for, and dispatched it. You now find that it doesn't match the picture of A (but does match the description of .

In such a case, the contract would be voidable. Case law for this is Raffles v Wichelhaus (1864)

There is also an argument for innocent misrepresentation, but that will only allow you to rescind the contract, or seek damages in lieu of rescission. It still won't get you the watch.

exactly what i said on the previous page lol and to BFG you may "think" in your mind that contracts are completed on the transaction of money but under the law (this does only apply online not face to face) this is wrong as i have shown. and contracts are completed upon dispatch not delivery to you, these are 2 different things and you could turn the product down anyways? you have 7 days to under the same exact law so its fair to both parties.

PeteW

For what it's worth, I've finally got an answer out of Ernest Jones - they're sending me the correct watch.

scullster

Jammy so 'n so! Lucky you, the consumer occasionally gets the breaks!

My philosophy is one of common sense and fairness - in this case, if the retailer had made a genuine error (evidenced by no previous incidence of misrepresenting) and posted the wrong picture, then if it had gone to court, it would've been accepted as a mistake and both parties would've been asked to shake hands either void the contract or come to an amicable arrangement.

I love these sorts of threads.......