Help drafting letter, company taken £400 for goods now saying should have been £560

jdturk

4743hudsonj wrote: »

And BTW Anihilator is actually hardly ever wrong.... Seems to have a very good knowledge, better than yourself it would seem. Ok so he doesnt always deliver it in the best of ways but take it in good humour and you have sound advice....

The only way the OP will win is if the company think, 'sod it, lets just let the guy have it for that and forget the hassle being caused'

He is very unlikely to win otherwise.

Also I like Anihilator, very blunt and as you say hardly ever wrong....just needs to learn how to be tactful!

taxiphil

4743hudsonj wrote: »

Anihilator is actually hardly ever wrong....

I've lost count of the number of times Anihilator has got it spectacularly wrong. He knows absolutely nothing about the law and just spends his life hopping from one thread to another on this forum, giving out wildly misleading and incorrect advice, pretending that he knows what he's talking about. When someone with real knowledge comes along and puts him straight, he flees the thread and hops straight onto another thread, to start the process all over again.

Here's a classic example of the process:

http://forums.moneysavingexpert.com/showthread.html?t=2229799

Anihilator wrote: »

This pretty much allows them to do this. Not sure at all why the trading standards man thinks they would be classed as unfair.

Because Trading Standards have an understanding of contract law and Unfair Terms legislation, and you don't. Go away and spend the weekend reading the Unfair Contract Terms Act 1977 and the Unfair Terms in Consumer Contracts Regulations 1999, from start to finish, then come back.

Anihilator wrote: »

You seem to have spoken to a complete idiot at TS.

Oh, the irony.

Anihilator wrote: »

Even if they did breach the contract you legally have very little recourse as you have very little quanitifiable losses.

Nonsense. The remedy for breach of contract is to place the injured party in the position they would have been in if the contract had been performed. The remedy in this instance is Loss of Bargain, but admittedly that will depend on whether the shower screen can't be sourced elsewhere for less than £409.

4743hudsonj wrote: »

Its a very common misnomer that money trading hands = Contract. And whilst this is mostly true in retail sales (physical), online, phone or catalogue (in other words distance selling) is completely different and as such has different laws protecting both consumers and businesses.

Absolute codswallop. You've totally misunderstood the Distance Selling Regulations.

The DSRs certainly don't "allow" a business to specify when a contract is formed. The DSRs are concerned with enhancing the consumer's right to cancel/return goods and as such have little or no relevance to this matter.

The statutory and common law rules of contract law, and the Unfair Contract Terms Act 1977 and Unfair Terms in Consumer Contracts Regulations 1999 still apply to internet orders and the consumer's rights are not diminished in any way by the DSRs.

The OFT guidelines quoted above are only guidelines, and they only say "It is in your interest to make clear to your consumers exactly when a binding agreement will be reached" - they do not say that these terms will automatically be enforceable or that they will be immune from other statutory requirements.

In a nutshell, Bathroom Village have made an anticipatory repudiatory breach of the contract, which puts the injured party (the OP) in a position where they can regard the contract as discharged by breach, and claim damages (Hochester v De La Tour 1853). The remedy is to put the injured party in the position they would have been in if the contract had been performed (Robinson v Harman 1848) i.e. Expectation Loss, also known as Loss of Bargain. The damages are measured under s.51(3) Sale of Goods Act 1977 - “the difference between the contract price and the market or current price of the goods” i.e. the difference between the contract price of £409 and the lowest price the OP can source the item for elsewhere, having made reasonable attempts to shop around.

DCodd

taxiphil wrote: »

I've lost count of the number of times Anihilator has got it spectacularly wrong. He knows absolutely nothing about the law and just spends his life hopping from one thread to another on this forum, giving out wildly misleading and incorrect advice, pretending that he knows what he's talking about. When someone with real knowledge comes along and puts him straight, he flees the thread and hops straight onto another thread, to start the process all over again.

Here's a classic example of the process:

http://forums.moneysavingexpert.com/showthread.html?t=2229799



Because Trading Standards have an understanding of contract law and Unfair Terms legislation, and you don't. Go away and spend the weekend reading the Unfair Contract Terms Act 1977 and the Unfair Terms in Consumer Contracts Regulations 1999, from start to finish, then come back.



Oh, the irony.



Nonsense. The remedy for breach of contract is to place the injured party in the position they would have been in if the contract had been performed. The remedy in this instance is Loss of Bargain, but admittedly that will depend on whether the shower screen can't be sourced elsewhere for less than £409.



Absolute codswallop. You've totally misunderstood the Distance Selling Regulations.

The DSRs certainly don't "allow" a business to specify when a contract is formed. The DSRs are concerned with enhancing the consumer's right to cancel/return goods and as such have little or no relevance to this matter.

The statutory and common law rules of contract law, and the Unfair Contract Terms Act 1977 and Unfair Terms in Consumer Contracts Regulations 1999 still apply to internet orders and the consumer's rights are not diminished in any way by the DSRs.

The OFT guidelines quoted above are only guidelines, and they only say "It is in your interest to make clear to your consumers exactly when a binding agreement will be reached" - they do not say that these terms will automatically be enforceable or that they will be immune from other statutory requirements.

In a nutshell, Bathroom Village have made an anticipatory repudiatory breach of the contract, which puts the injured party (the OP) in a position where they can regard the contract as discharged by breach, and claim damages (Hochester v De La Tour 1853). The remedy is to put the injured party in the position they would have been in if the contract had been performed (Robinson v Harman 1848) i.e. Expectation Loss, also known as Loss of Bargain. The damages are measured under s.51(3) Sale of Goods Act 1977 - “the difference between the contract price and the market or current price of the goods” i.e. the difference between the contract price of £409 and the lowest price the OP can source the item for elsewhere, having made reasonable attempts to shop around.

Yep, what taxiphil said.

bootman

Thank you taxiphil

To update, I called the company today. They apologised for the call yesterday advising they had made a mistake and asking for further funds. They have checked themselves and they are aware they have to honour the purchase, which they have said they will do although they have come back saying not a standard item and won't be built for a couple of weeks, so will have to contact the manufacturer to check that's right and not just a stall.

If I need to write a letter, thanks taxiphil for your detailed response, that will be of great help to me, it was exactly what i was asking for.

Thanks again everyone!

somethingcorporate

I'm following this thread with interest.

So you are saying if it was advertised at £5.99 (in error) rather than £599 and the company debited the money you could force them to supply at that price? You could force companies out of business in seconds with practice like that - 1 decimal place out, listed on a few dozen consumer sites and 10,000 products sold at a tenth of their value.

Hundreds of examples on MSE of companies not supplying on misprices covered by terms exactly as the ones that Hudson supplied.

taxiphil

somethingcorporate wrote: »

So you are saying if it was advertised at £5.99 (in error) rather than £599 and the company debited the money you could force them to supply at that price? You could force companies out of business in seconds with practice like that - 1 decimal place out, listed on a few dozen consumer sites and 10,000 products sold at a tenth of their value.

If it's as clear cut as £5.99 versus £599, the retailer could use the "Hartog" (law of mistake) defence, but the burden of proof is on the retailer to show that the buyer knew the retailer was mistaken as to the terms of the contract.

But when there's less of a gaping disparity between the two prices it will be harder for the retailer to use this defence, especially if they used words like "clearance price", "reduced to" or "now only" on their webpage, which imply some kind of deliberacy in the cheap price.

And it's also important to note that they can't use the mistake defence simply because they had a defective online ordering system which kept accepting orders even though they'd run out of stock.

somethingcorporate wrote: »

Hundreds of examples on MSE of companies not supplying on misprices covered by terms exactly as the ones that Hudson supplied.

Just because they're not honouring the misprice doesn't necessarily mean they could successfully defend a Loss of Bargain claim in court. If you want to see what happens when it comes to the crunch, have a look at the B&Q dishwasher and water butt threads.

somethingcorporate

taxiphil wrote: »

If it's as clear cut as £5.99 versus £599, the retailer could use the "Hartog" (law of mistake) defence, but the burden of proof is on the retailer to show that the buyer knew the retailer was mistaken as to the terms of the contract.

But when there's less of a gaping disparity between the two prices it will be harder for the retailer to use this defence, especially if they used words like "clearance price", "reduced to" or "now only" on their webpage, which imply some kind of deliberacy in the cheap price.

And it's also important to note that they can't use the mistake defence simply because they had a defective online ordering system which kept accepting orders even though they'd run out of stock.



Just because they're not honouring the misprice doesn't necessarily mean they could successfully defend a Loss of Bargain claim in court. If you want to see what happens when it comes to the crunch, have a look at the B&Q dishwasher and water butt threads.

Brilliant! thanks for such a comprehensive reply!

jdturk

bootman wrote: »

Thank you taxiphil

To update, I called the company today. They apologised for the call yesterday advising they had made a mistake and asking for further funds. They have checked themselves and they are aware they have to honour the purchase, which they have said they will do although they have come back saying not a standard item and won't be built for a couple of weeks, so will have to contact the manufacturer to check that's right and not just a stall.

If I need to write a letter, thanks taxiphil for your detailed response, that will be of great help to me, it was exactly what i was asking for.

Thanks again everyone!

What actually happened was they couldn't be arsed to argue with you so gave you the discount. However, I still believe they could have legally charged you the extra (as long as it wasn't dispatched) for the item.

Well done though for keeping the pressure up, its well worth them letting you have it for £200 less because when you go to buy something else your more likely to use them again

smcaul

jdturk wrote: »

What actually happened was they couldn't be arsed to argue with you so gave you the discount. However, I still believe they could have legally charged you the extra (as long as it wasn't dispatched) for the item.

I think they would have struggled to do that!! The item was advertised at a sale price (I think thats what was said in the OP) but they then wanted to charge the full price, even after they had take the money. As for their T&C's they seem to try and protect the retailer by allowing them to alter the price of their goods whenever they please, which is a very unfair term!!! Most online retailers have the clause that the "contract is not formed until goods are dispatched" but that does not seem to be the case here.

BathroomVillage

Hi, I thought it wise to clear this issue up and say hello to the forum.

The price advertised on our site was correct in line with the discount we were offering with this brand, however a mistake of pricing had bee made by the manufacturer (price list and brochure were incorrect) which was only picked up upon ordering it after the sale. Hence the reason we had to re-adjust.

We argued the case that this was unfair for a customer & ourselves. After a few calls we agreed that the brand themselves should take responsibility of the mistake. Which they duly did.

I hope this helps clear the issue up.

BathroomVillage.com