can i have my money back?

bookworm1363

somethingcorporate wrote: »

I just want to know why you think a contract is only binding after it is concluded - that is the most bizarre thing I have ever heard.

It would be quite a bizarre thing to say, you're right, which is why I didn't say it.


*sigh*

Once more with feeling:

Contract formed: yes. Completed: no. <---- That's the contract formation part
Contract's validity since T&Cs were not communicated to the buyer before purchase: None. <--- That's the part which makes it non-binding
Actual loss suffered by seller due to breach of contract by buyer: None.
Refund due to buyer: 100%.

******************

Someone made higher up the absolutely ridiculous suggestion that it was up to the OP to find out what the contract entailed, and there is simply not enough time to explain why that is is not the case.

However, anyone familiar from close or even far with the UTCCR will know, or should know about the non-enforceability of unfair terms, and that terms must be clear, intelligible and not create a significant imbalance in favour of the business. Yes? With me so far?
Furthermore, also in the UTCCR, (8.1), it is stated quite clearly that an unfair term in a contract shall not be binding on the consumer. Can't be said much more simply.

Seller didn't communicate to buyer what, if any, terms of cancellation would apply to the contract in case of breach. Therefore, when buyer cancels contract, there are no binding terms to which to refer.

You ask to borrow a tenner off me. I lend it to you and say to you "pay me back when you get paid next week", and when you go to pay me back the week after, I were to say to you "Oh but you have to give me back £20, that's the way I do things", would you think that's fair? It might have been if I had told you at the beginning that that would be the cost, but not for me to spring it on you afterwards. It is exactly the same here.

So you lot can keep on with the mutual admiration society and say I'm wrong often enough in the hope that eventually enough people will believe you, but I have used both SOGA and the UTCCR often enough against retailers and read more small print contracts than I ever wanted to, to know that in this instance (which is not to say, and I have not said so that this always the case) the contract's terms are not binding on the OP.

If I were to go to court on that one, my approach would be based on the UTCCR (as above), on unfair terms, therefore non-binding and non enforceable in its entirety.
In the alternative, if terms were deemed to be deemed fair and binding (which is denied) the seller would only be entitled to their actual losses, and I would put seller to submit evidence that she had tried to mitigate her losses (ie returning the goods to supplier if that was a possibility, selling to another customer etc...).
I would also bring out the possibility that seller is in fact trying to enrich herself unjustly. She offered a credit note, which means she would then be able to sell the shoes AND still be bound to make money on a second sale from the credit note, or, if the credit note were not used, then she would have had the money twice on the same pair of shoes.

There isn't a judge in the land who wouldn't look at the seller and say: "why did you not just refund the woman and re-sell the shoes?" After all, she runs a shoe shop, it's not exactly a great stretch of imagination for her! :rotfl:

I think that this is exactly what the seller was hoping for, actually: credit note against goods, so buyer will have to spend the note in her shop, AND re-sell the shoes. In law, that's called betterment and is a big no-no.

We are only telling you you are WRONG

Errrm no, a good deal more than that has been said and not once with a single ounce of case law to back this up as to why I may be wrong, or should I say WRONG . Never mind, keep on saying it often enough and maybe someone will believe you outside your little group. :rotfl:

Incidentally, I mentioned bullying tactics, not that I was being bullied, you can't bully someone who won't let you, no matter how hard you try.

In conclusion and to recap for those who by now have lost the will to live:

Some people say: contract formed, therefore binding, no refund owed. Because we say so, and so do we.

I say: contract maybe formed, non-enforceable and non-binding due to its unfair terms, 100% refund due, I say so and here's some legislation that supports my opinion.

Now can we let OP get on with it, that is if she hasn't been scared off by the pack? :cool:

paddyrg

bookworm1363 wrote: »

I would also bring out the possibility that seller is in fact trying to enrich herself unjustly. She offered a credit note, which means she would then be able to sell the shoes AND still be bound to make money on a second sale from the credit note, or, if the credit note were not used, then she would have had the money twice on the same pair of shoes.

There isn't a judge in the land who wouldn't look at the seller and say: "why did you not just refund the woman and re-sell the shoes?" After all, she runs a shoe shop, it's not exactly a great stretch of imagination for her! :rotfl:

I don't understand (genuinely) - how is the shop being unjust here? I mean I can see that if the credit note goes unused, they've got lucky, but it would seem a bit rough to claim that that was an attempt to unjustly enrich itself, wouldn't it? The note holder could still use the note, so when would they even be able to recognise the revenue properly?.

Do we say vouchers are unjust enrichment? What about vouchers which expire? They seem a crappier deal than a credit note against goods where the buyer put the shop through the work of ordering in a special item which they now have to hold as stock for as long as it takes to sell them (by definition a slow-moving/unusual item, or they'd have been stock).

I mean clearly this is all somewhat theoretical in this case, and if the OP has any sense, she'll have stopped reading pages ago, but I am confused and not qualified to pick sides in the bunfight...

bookworm1363

paddyrg wrote: »

I don't understand (genuinely) - how is the shop being unjust here? I mean I can see that if the credit note goes unused, they've got lucky, but it would seem a bit rough to claim that that was an attempt to unjustly enrich itself, wouldn't it? The note holder could still use the note, so when would they even be able to recognise the revenue properly?.

Do we say vouchers are unjust enrichment? What about vouchers which expire? They seem a crappier deal than a credit note against goods where the buyer put the shop through the work of ordering in a special item which they now have to hold as stock for as long as it takes to sell them (by definition a slow-moving/unusual item, or they'd have been stock).

I mean clearly this is all somewhat theoretical in this case, and if the OP has any sense, she'll have stopped reading pages ago, but I am confused and not qualified to pick sides in the bunfight...

LOL, no worries, I'd rather people ask rather than misunderstanding.

I'll try to simplify:

OP buys shoes - pays for shoes - takes away shoes. Seller has made say £40. No problems.

Now then:
scenario 1: OP pays for shoes (£40), changes her mind, cancels order.
Seller refunds in cash. Op goes away.
Seller re-sells the shoes, makes £40. No loss for her, maybe an inconvenience, but no loss.

Sceanrio 2: OP pays for shoes (£40), changes her mind, cancels order.
Seller refunds by credit note, which can obviously ONLY be spent in her shop, so she still has made £40.
Seller re-sells the shoes, makes £40. 1st buyer can't go spend the money elsewhere since she only has a credit note.

So at the end, the seller will have sold £80 worth of shoes instead of £40. THAT would be the unjust enrichment part.

Does that make more sense? I hope so.

Re: the slow-moving item, specially ordered part, that's an assumption, it could also be that is in fact very fast moving and had sold out hence the need to re-order them, and there's no notion that it was "specially ordered", it seems as if they would be coming in at the same time as the rest of her regular order, so hardly a great inconvenience to have 1 more pair of shoes in her shoe shop IMO.

What people don't seem to take on board is this very simple premise: If the OP hadn't paid for the goods in advance, had simply ordered the shoes and said she'd pay for them on collection, then changed her mind and simply not turned up, would we be having these pages of arguments stating that seller should sue the non-buyer for breach of contract? Obviously not, as the answer would be: "well you still have the shoes, just sell them, simple". Yet for some reason, the fact that she paid ahead seems to make people go crazy! :rotfl: (I don't mean you, it's just been an ongoing thing apparently!)

oooh, look at that, nearly midnight, time to go back to my pumpkin! good night all!

paddyrg

Thank you, I do get what you're saying - so to extend that, what is the critical difference between that scenario and people buying vouchers? Especially vouchers with expiry dates? Is that unjust enrichment in the making?

(Midnight is for lightweights )

bookworm1363

paddyrg wrote: »

Thank you, I do get what you're saying - so to extend that, what is the critical difference between that scenario and people buying vouchers? Especially vouchers with expiry dates? Is that unjust enrichment in the making?

(Midnight is for lightweights )

lol, indeed it would seem so.

unjust enrichment in the making, hmmm, there's an interesting concept. Well, I say "interesting"...

We're going to have to go into "if" territory here.

If I opened a store and sold lots and lots of vouchers knowing that I wouldn't be in business long enough to honour them, it would be more like a Ponzi scheme than anything...

But if I open a store and sell vouchers for £10 so that they can give them to people to exchange for goods to the value of £10 then no, it's not unjust enrichment. Someone has paid the money on behalf of someone else spending it at a later date. It benefits me, the retailer, in a few ways: Money in the bank is earning me interest whilst the paper coupon is sitting in someone's wallet doing nothing. Statistically, there'll be people who won't use them, lose them, let them run out of date, whatever, and that's all pure profit too. But if they're used properly then no, it's all legit, although really all loaded in the favour of the retailer, he gets money in exchange for a printed card which will create a captive audience, brilliant!

Vouchers with an expiry date, I have to say, I am divided about. Seems to me that if you're going to flog people bits of cards which will force them to shop with you instead of elsewhere, the least you could do is not limit how long they have to do so, but as long as it's made very clear on the voucher that it does have an expiry date, it's also legal. (that's the bit I keep on trying to explain higher up, on how you HAVE to tell people what the catches are in the contract before they sign on the dotted line!) You can't sell someone a voucher and say nothing, hoping they won't notice that you have written in that they can only be used every second Tuesday of the 4th month which also happens to be a full moon. THAT would be an unfair term and therefore non-binding and non-enforceable in its entirety.

Ultimately, the consumer also has a responsibility. Granted there are some seriously dodgy retailers out there, and quite a few of them household names, but it does't mean that we as consumer shouldn't be more aware. If you want to go out on a saturday to a restaurant, you make sure it's open, you don't turn up and start kicking off because it's closed, and expect the chef to make an exception.

To conclude (at last!), the main difference between the shoe shop scenario and regular vouchers is one of willingness, someone who buys a voucher is willing to tie himself to purchasing in that store. Our OP credit note otoh would be surplus to requirements, might be of no use to her whatsoever in the future, so it would be a complete loss to her whilst the retailer would still be up £40 AND still have the shoes.

*mops brow*

Def going to bed now! g'nite!

shaun_from_Africa

Originally Posted by somethingcorporate
I just want to know why you think a contract is only binding after it is concluded - that is the most bizarre thing I have ever heard.

Reply by bookworm.

It would be quite a bizarre thing to say, you're right, which is why I didn't say it.

Post #10 (also by Bookworm)
http://forums.moneysavingexpert.com/showpost.php?p=39431052&postcount=10

Incorrect, the contract needs to be concluded for it to be binding. OP hasn't got the shoes, contract is not concluded, Op can cancel and get refund in full. Simple.

The word in bold was in the original post and not added by me, although I did underline the relevant bit. (the bit that bookworm clearly denied stating)

somethingcorporate

shaun_from_Africa wrote: »

Reply by bookworm.


Post #10 (also by Bookworm)
http://forums.moneysavingexpert.com/showpost.php?p=39431052&postcount=10



The word in bold was in the original post and not added by me, although I did underline the relevant bit. (the bit that bookworm clearly denied stating)

I think Bookworm is just a WUM and actually knows that what she is writing is just rubbish!

Bookie, when is a contract binding? at conclusion or at agreement?

paddyrg

bookworm1363 wrote: »

lol, indeed it would seem so.....

Def going to bed now! g'nite!

Thank you, and sleep well :-)

bookworm1363

bookworm1363 wrote: »

Apologies, I did write the "binding" part in error, not what I meant. What I meant was that it may be binding, but it wouldn't be enforceable if and when OP cancelled prior to completion. And funnily enough, as you yourself quoted, seller could only claim for genuine losses, so you've just answered a few more of your own arguments there.

bookworm1363 wrote: »

Oh yawn. I've already covered both of these in my previous posts, do you just disagree for the hell of it without actually reading them?

To save you the brain strain, here it is, again:
*and there I re-quoted the bit I have posted higher*

shaun_from_Africa wrote: »

Reply by bookworm.

(the bit that bookworm clearly denied stating)

What part of the above is not understandable to you? I wrote something which was not what I meant, I said so, apologised for it, and then posted that apology a second time so that even the most dimwitted on here wouldn't then think they had a scathing reply... looks like I underestimated some people's abilities to extract whatever they want from those posts without referring to the rest.

apart from now cherrypicking what you want form my post and then interpreting the way you like it, do you actually have something constructive to offer? :cool:

bookworm1363

somethingcorporate wrote: »

I think Bookworm is just a WUM and actually knows that what she is writing is just rubbish!

hmmm, yes, no insults whatsoever. This kind of scintillating comments really make you stand out as someone whose advice must be faultless. :rotfl:

B

ookie, when is a contract binding? at conclusion or at agreement?

any idiot knows that the answer to that is this: It depends on the contract.

Or, to reiterate the words of Lord Clarke, as previously quoted:

"the law still provides that parties to a complete agreement might stipulate for themselves, either expressly, or impliedly, when, and under what circumstances, the terms of the agreement will be binding in law. They may indeed do so to produce the kind of certainty that avoids disputes about what was agreed between them".

I can't make it any clearer than Lord Clarke has. It depends on the terms agreed between the parties. An online retailer may stipulate that it will only be on despatch. For some, it will be as soon as you sign on the dotted line. for some, it will be over a handshake and a gentleman's agreement.

If you can't understand that simple premise, I'm afraid I can't make it any simpler than that. But that is your failing, not mine.