Help! Credit card misuse by shop

Nara

I agree with Call, i have done a number of customer not present sales which they were paying over the phone....you normally do need the security code, and this doesnt show on a receipt. Bit strange how they managed to get round that.

bengal-stripe

dave030445 wrote: »

didnt take long for the silly coments to start the OP was not saying she wanted it for nothing.

Then I would suggest, the OP returns with either cash or item to the shop and asks for a refund on the card. Isn't there a saying about 'cake having and and eating'?

It's not different to a hotel that fails to charge for use of he mini bar and the customer stays 'shtumm'. They'll put it onto the card later.

Of course, had the OP paid with cash, the chance would have been quite high, s/he would have got away.

opinions4u

dave030445 wrote: »

didnt take long for the silly coments to start the OP was not saying she wanted it for nothing.

Humour us then.

What did the OP expect to achieve?

(For the record, I don't think the shop should have carried out the second transaction with the overt consent of the cardholder, but I can't see what the OP expects to achieve by moaning about it either).

chattychappy

The OP approached the counter and offered to buy the stuff at the labelled price. The shop rang up £166 for the whole lot (instead of £211 it seems). The price got changed - albeit through a mistake by the shop. If £211 had been rung up, perhaps the OP would have thought blimey that's alot and walked away. As it was, the price became £166. Perhaps the OP thought "funny, should have been £211". Anyway, the OP was happy with £166 and tendered payment - possibly even knowing that the shop has made a mistake. As all 1st year law students know, a contract requires offer, acceptance and consideration (ie payment) and in a shop it is the customer that makes an offer when they tender payment and acceptance occurs when payment is accepted. The contract is then binding. The OP offered £166 and the shop accepted.

Now ethically, people can argue that the OP should be happy to make up the difference but the OP asked about rights. In the absence of any deception by the OP (eg concealing items) then it seems pretty clear to me. Legally the deal was struck at £166.

The shop has no legal basis to demand more money just because they made a mistake in calculating the price.

Now let's imagine that £211 was agreed, eg if an order form was filled in and signed. Then this would form the contract. If £166 was then put through to the PDQ machine then that would be different, the extra would be owed by the OP.

But even in this case, the shop would have no right to just grab it from the cardholder's account. Possession of the cardholder's details and a debt being owed doesn't entitle a charge to be made. The charge must be authorised. Where multiple charges are to be made then multiple authorities or a CPA is required. The shop is probably breaching their merchant agreement by taking monies which were not authorised - this is not a matter for the OP. This is potentially a fraud on the credit card company - NB not the cardholder because the cardholder is not liable for unauthorised transactions.

So it comes down to what was really agreed and the OP hasn't given much detail of the discussion, if any. Assuming the items were slapped down and rung up, then however unfortunate for the shop, I believe the deal was struck at £166.

On the basis the deal was done at £166: The OP should simply dispute the second transaction. It was unauthorised. The merchant is a shop - the shop used details from a cardholder present transaction to process a further transaction without the knowledge or consent of the cardholder. The price was agreed at the time of the first transaction and paid for in full at that time.

On the basis the deal was done at £211: Do nothing. In my opinion the shop acted improperly, but to reverse the transaction would result in a civil debt which would have to be paid anyway.


Now, on the basis the deal was struck at £211:

ru20205 wrote: »

Whilst i do not know the legalities of whether the shop can charge you after the transaction has been processed based on details they already held from your CC, i do know the following:

If you buy something from a shop, and get home to discover that you have received something else in addition, like buying a bracelet and charms, only to discover you have only been charged for 4 charms, as in your case, by Law you are required to go back to the shop and either return the additional charm or pay them for it, otherwise it is classified as Theft under Section 1 Theft Act, of appropriating property belonging to another with the intent of permanently depriving the other of it. Sounds a little extreme i know
but that is how it is viewed in law. It is ultimately Theft.

It's not clear that it's theft. (I'm guessing by s1 you mean s1 Theft Act 1968 rather than the 1978 Act). It would be in the example you give (arriving at home to discover you have additional items). In this case you have property belonging to another and at the moment you develop an intention to permanently deprive with the requisite "Ghosh" dishonesty then indeed a theft offence would be committed.

But in this case the OP only has the items intended for him/her. s18 Sale of Goods Act 1979 holds that title passes for ascertained goods when the contract is formed (NB not performed). Indeed it states:"where there is an unconditional contract for the sale of specific goods ... the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment ... be postponed."

For there to be a theft, the appropriation must occur when the goods belong to another. So a s1 Theft Act 1968 offence cannot occur because by the time the OP realised what had happened, title had transferred so there was no appropriation.

If the OP had left the shop knowing that he/she had underpaid, then there could be an offence of "making off" s3 Theft Act 1978. This offence was introduced to deal with the very specific loophole where title transfers (by operation of civil law) and then a person develops a dishonest intention - eg deciding after eating a meal that they won't pay the bill. But in this case the OP had already left the shop by the time s/he realised more payment was due.

So my view is that the only issue is the civil debt. Indeed even this was eliminated when the second charge was put through.

In my opinion the following issues arise:

1) There may have been a breach of contract between the merchant and the merchant services provider (as discussed above). This is not a matter for the OP.

2) If the OP now tries to dispute the transaction on the basis it wasn't authorised without telling the whole story and with the intention of avoiding paying the shop, then there could be a deception offence (s2 or s3 Fraud Act 2006). It would be for the prosecution to prove this intention - but one wonders why else the OP would dispute the transaction. Of course there would be no problem if at the same time the OP told the shop they would pay by alternative means.

3) If the OP does successfully dispute the transaction, then s/he is left with a civil debt to pay. The shop may have a lien on the items.

I say it's not clear that it's theft, but also it's not clear that it wouldn't be. s18 is a rebuttable presumption and it comes down to the intention of the parties. Clearly it was never the intention of the shop that the customer can walk off without paying for goods - but that is not the issue. The issue is whether it was the intention of the parties at contract formation that title would pass. I think this is not in doubt. If I was arguing for the shop I might claim that the items represented separate purchases and therefore separate contracts and that contracts were only formed in respect of those paid for. I think this is difficult to sustain if all the items were put into a bag and the shop was happy for the customer to walk off.

pimento

There was a similar thread a few months ago from a guy who had purchased some Pandora charms for his wife from a jeweller he had used before.

He got a phone call the next day from the shop saying that he had been undercharged for a particular charm and would he please contact them to arrange payment?

As far as I can remember, the advice he was given here was to tell the jeweller "tough".

He didn't pay with a credit card though as far as I can remember.


I can't find the thread though.

creditcard123

There was no prices on the individual items when I chose them so I assumed when i got to cash desk and they rung up the individual items that £166 was a reasonable amount for bracelet. I did not knowingly pay less as suggested in previous posts.
What I was asking was is it legal that the shop used my card without my authorisation
I have eventually got through to someone at my credit card company who has told me that it is illegal for anyone to use my card without permission.
My argument with the jewellers is that they had no right to withdraw funds from my credit card without my permission.
Thanks for everyone who has replied

Auntie-Dolly

I can't see that it is misuse. You used your card to pay for the items received. The seller processed the amount due in two seperate transactions. The end result is the same.

7891368

The long card number shouldn't have been on anything they had either though?

How did they have an of the details off the card except the last 4 numbers and possibly the expiry?

richard9991

7891368 wrote: »

The long card number shouldn't have been on anything they had either though?

How did they have an of the details off the card except the last 4 numbers and possibly the expiry?

Simple they have used the original authorasation code again to process a second payment this is how continuse card payments work.

chattychappy

Auntie-Dolly wrote: »

I can't see that it is misuse. You used your card to pay for the items received. The seller processed the amount due in two seperate transactions.

Only one of which was authorised.

Auntie-Dolly wrote: »

The end result is the same.

No it isn't.

It's a breach of contract - in that sense it is illegal. With sufficient dishonest intent, it is also fraud.

It seems the OP got the correct answer from the CC company.

Personally I'm surprised that posters didn't seem so bothered about what the shop had done. I think it's rather serious when shops think they can behave this way.