Clarification on loss of bargain

londonman42

I bought and paid for, from a company via their eBay outlet, a digital video recorder. They despatched the item to me but their courier lost it. They are now out of stock and will not be getting any more. To buy this item elsewhere will cost me an extra £100.

I think that this constitutes a 'loss of bargain' but the company is saying that because they have no control over their delivery company then all they will do is refund me my money.

Do I have a case against them?

Mankysteve

Nope.You agreed a price on item from outlet. Its value is not the same as a new one.

londonman42

Mankysteve wrote: »

Nope.You agreed a price on item from outlet. Its value is not the same as a new one.

I need to separate out two issues here

1) 'Loss of bargain' most definitely applies if a contract exists. My understanding is that the contract exists if I have paid for the item and they have despatched it to me. Are you disagreeing with this statement?

2) Is 'loss of bargain' in (1) if the suppliers courier fails to deliver? is that what you are saying?

dmg24

Anyone that would claim loss of bargain for something which is completely beyond the control of the retailer is downright petty.

londonman42

I didn't ask for a morality lesson, thanks. So next time you fly and your flight gets cancelled because of snow then you won't bother with asking for a refund then. That would be petty as the snow it completely beyond their control.

Enfieldian

londonman42 wrote: »

I didn't ask for a morality lesson, thanks. So next time you fly and your flight gets cancelled because of snow then you won't bother with asking for a refund then. That would be petty as the snow it completely beyond their control.

No, I would expect a refund but I wouldn't expect extra compensation. However, by the sounds of things, you would.....

somethingcorporate

It depends on the company's T&Cs as to contract formation but quite possibly you do have a case.

For the sake of £100 I doubt it would be worth the time or money, especially as the company have already made their position clear.

Owain_Moneysaver

Items delivered remain at the seller's risk until they are delivered. The circumstances are wholly within the control of the retailer as it is the retailer that contracts with the courier.

The legislation is Sale of Goods Act 1979 (as amended by SSGCR - Sale and Supply of Goods to Consumers Regulations 2002)

20 Passing of risk

(1) Unless otherwise agreed, the goods remain at the seller's risk
until the property in them is transferred to the buyer, but when the
property in them is transferred to the buyer the goods are at the
buyer's risk whether delivery has been made or not.
...
(4) In a case where the buyer deals as consumer or, in Scotland,
where there is a consumer contract in which the buyer is a consumer,
subsections (1) to (3) above must be ignored and the goods remain at
the seller's risk until they are delivered to the consumer.

32 Delivery to carrier

(1) Where, in pursuance of a contract of sale, the seller is
authorised or required to send the goods to the buyer, delivery of
the goods to a carrier (whether named by the buyer or not) for the
purpose of transmission to the buyer is prima facie deemed to be a
delivery of the goods to the buyer.
...
(4) In a case where the buyer deals as consumer or, in Scotland,
where there is a consumer contract in which the buyer is a consumer,
subsections (1) to (3) above must be ignored, but if in pursuance of
a contract of sale the seller is authorised or required to send the
goods to the buyer, delivery of the goods to the carrier is not
delivery of the goods to the buyer.

The seller is in breach of contract to supply the goods at the agreed price. I think you have grounds for claiming, but do you really want to spend the additional £100 on the substitute item, then the court fee, to risk finding out you don't?

You can always sue. You will not necessarily win.

toffe

you can't sue for "loss of bargain" it's a stupid form of twisted logic and i'm sick of hearing people banging on about this on here to be honest.

if anyone can link to any consumer contract legislation or test cases which prove that suing for loss of bargain is possible then i'll eat my words but until then i stand by my opinion that it is a stupid idea.

if seller can't provide an item he must refund you the price you paid, nothing less, nothing more.

imagine if sellers tried to apply this logic in reverse, i.e you buy a camcorder for £100 the seller can't fulfill the order but tells you he found the item for £80 quid with another retailer so he'll just give you that.

you'd go balistic, what a cheeky sod, why should he get £20 for absolutely nothing....right?

so ask yourself, why should the seller have to give you something for absolutely nothing.

further bear this in mind if you are even considering wasting court time on this, if the item is not essential to you living and is not a one off it is unlikely that the court will consider that you now have to pay more to buy it elsewhere, as you probably don't have to buy it at all, you just want to buy it.

the seller may also be able to apply to the court for considerable legal costs ( i would) from you if your case is completely witout legal merit so you better find some legal basis for this or forget it or it could end up costing you a few grand, someone i know brought a case to the small claims which had far more merit than this and got hit with £3,000 costs because his facts were wrong and meant he therefore had no legal merit to his case, it was a harsh judgement but what was the judge to do? it was an unmerited legal action which cost the other party £3,000 to defend, he had to award costs, this would likely happen to you i think, and quite rightly too.

londonman42

toffe - do not presume to tell me what I would or what I would not say or do. Nor presume to value-judge.

owain - many thanks for those two extracts which nails the delivery aspect as far as risk goes, I think.

molerat

The supplier is technically in breach of contract but do you really want to risk a judges view on whether or not the company should be penalised for something that is out of their control.