To sue, or not to sue . . . that is the question

singlerider

Hi Folks,

I recently bought a Macbook off Swoopo in a 'Swoop it Now' purchase - same as a 'Buy it Now' on Ebay.

The Macbook was advertised at £31.49, with £13 delivery - not bad for something that retails at £799, eh?

Anyway, I waited with baited breath until I received an email from swoopo saying they were cancelling the contract:

As you are no doubt aware, the item was incorrectly priced and therefore never available for purchase. The error in pricing was due to a software malfunction and we refer in our general terms and conditions (term 12) to this possibility for which we cannot be held liable. We apologise to you for this mistake and are refunding to you the price that you offered

The term 12 they refer to has little bearing on this matter, as it states:

"12. System Outage / Temporarily Halted Auctions A system outage has occurred if no bids can be submitted for items due to an unforeseeable disruption in a system. In such a case, auctions will be temporarily halted and the remaining times for the auctions, the current bidding price and the current highest bidder will be maintained. After the disruption has been resolved, the auctions will be continued and 10 minutes will be added to the remaining times for the auctions. Temporarily halted auctions are clearly indicated. Bidders who are bidding on temporarily halted auctions shall have no right to a refund for bids used or other costs incurred.

With the currently available technology, it is not possible to develop and operate computer programs (software) and data processing systems (hardware) completely without errors, or to rule out any unpredictable events in connection with the internet (hereinafter referred to collectively as “technical faults”). Swoopo, therefore, provides no guarantee for the constant and uninterrupted availability of its website and technical systems. In addition, but not subject to, the provisions of clause number 10, Swoopo shall not be liable for any damage whatsoever incurred by auction users or third parties from using Swoopo’s services. In particular, Swoopo shall not be liable for damage that occurs due to bids submitted by auction users not being received by Swoopo or not being received promptly or not being considered, as a consequence of technical faults."

I wrote back informing them that I did not accept their cancellation of the contract, and that by sending me a confirmatory email accepting the offer they entered into a legally binding contract to supply the goods to me at that price. Furthermore I did not know that it was incorrectly priced as their website advertises itself as supplying "premium brandname products at extraordinarily low prices" and if they did not honour their contractual obligations I would consider it as loss of a bargain and act accordingly.

But they've now replied once again, this time saying:

Whilst we very much appreciate your disappointment and regret the inconvenience caused to you we confirm that we have now arranged to refund you the money that you offered to pay for the product. We very much hope that you will use the free bids that we have credited to your account.

As previously advised, the incorrect price or product appeared as a result of an error in our spreadsheet pricing system and, as you may be aware, other products were inadvertently also priced incorrectly as a result of the same system error and we are also refunding customers who offered to purchase those products as well.

This type of situation is specifically covered by clause 12 of our terms of trading to which you agreed when you offered to buy the product from the website.

The error in pricing was, we are sure, so extreme that it would be abundantly clear to users of the website that it was obviously an error. Users can have had no realistic expectation of purchasing the products at those prices.
For these reasons, we emphasise that there was no obligation on Swoopo to supply goods at the price which is why we have refunded your money and we regard this matter as closed.

So, they're playing hardball.

As far as I can see, they haven't got a leg to stand on - advertising the product at that price was an invitation to treat, but as soon as I made the offer and they sent the confirmatory email accepting it - a contract was in place, a legally binding contract.

Their term 12 doesn't seem to cover it in my eyes, and the excuse that it was 'abundantly clear' that it was mispriced is false in my view - as the rrp is £799 you could understand £79.90 or £7.99, but £31.49 is completely different. Furthermore, in their 'About Us' section they say:

Every user can get top of the range, brandname products for extraordinarily low prices.

And on top of that, if you click on their 'Swoopo in the news' link it tells of people getting products worth over $1500 for less than $70.

So, the question is . . . to sue or not to sue?

I'm pretty sure I've got a cast iron case, but I was just wondering if anybody might know more or be able to advise me on this, because my understanding is that if I sue and lose, I'll be liable for their costs.

Can anyone help?

Thankyouplease

Anihilator

I agree with them.

You arent entitled to it at that price and no court would enforce the contract due to the fact its blatantly an error for everyone to see.

dmg24

Did you make the contract under UK or US law?

singlerider

Anihilator wrote: »

I agree with them.

You arent entitled to it at that price and no court would enforce the contract due to the fact its blatantly an error for everyone to see.

Why not?

I made an offer, and they accepted it - so now we have a legally binding contract. I'm duty bound to pay that price, and they're duty bound to supply the goods at that price.

As for it being 'blatantly an error' this is a site that prides itself on supplying "premium brandname products at extraordinarily low prices". What would you define as 'extraordinarily low'? You certainly can't claim it as a typo, because £31.49 is nothing like £799, so I don't think it can be said to be 'blatantly an error' - I assumed it was being used as a loss-leader in order to entice people into the site.

(And it's under UK law btw)

gordikin

£ or $ as dmg24 asks?

singlerider

Pound Sterling

neilmcl

Any reasonable person would agree that a £799 macbook being advertised for £31.49 new was an error as no doubt if you were to be honest with yourself you probably thought this too.

You tried it on, it didn't work, accept it there's nothing you can do.

pinkshoes

It was a blatant error, so no surprise that you won't be getting it.

The only leg you'd have to stand on would have been if they'd delivered it to you, then asked for it back. You then would have been entitled to keep it.

williham

You didn't enter a contract as far as I can see.

singlerider

williham wrote: »

You didn't enter a contract as far as I can see.

How so?

I made the offer, they accepted it - ergo we have a contract.

I will admit it seemed an offer too good to be true, but when you look elsewhere on their site and see products worth over £1500 being sold for under £70, then suddenly £31.49 for something costing £799 doesn't seem so out of place.

What constitutes 'extraordinarily low prices'?

Vomityspice

There are a number of flaws to your thinking. I'll attempt to explain why you are wrong...

1) Offer / Acceptance issue. You fail to understand that any party can withdraw an offer at anytime before a contract is made (Grant v Routledge). As the goods were never dispatched to you, there is no binding contract and therefore you don't have a cause of action.

2) I'm certain if you look in their T&C's it will have a clause on Errors or Omissions. Read it.

So to answer your question - don't waste your money, you will lose and be out of pocket as well as looking silly. If you want to learn more about the exciting world of contracts can I recommend 'Contract Law' by Ewen McKendrick.