Payed for goods and T&C indicate contract is formed but vendor cancelled?

christopher_barbour

Sorry, simmilar questions have been asked many times, but in this case the terms and conditions indicate that the contract has been formed upon payment...

I payed for an item online that was cheap, but it was not obviously a mistake. The payment was processed and order confirmation sent, but the order was subsequently cancelled as there was a pricing error. More out of interest i wanted to know where i stood so have read posts on the topic of online contracting. It seems that acceptance should be clearly defined in the t&c of contract and, in the absence of an explicit communication of acceptance, the law is vague as to whether acceptance occurs on reciept of payment or upon dispatch of goods.

From the following condensed T&C (sections 5.7 and 10.2 specifically), it seems to me that a contract has been formed and that it may be within my rights to demand fulfillment of the order. Any thoughts?

1. The Contract
1.1 The only terms and conditions of contract between xxx, trading as xxx, (“the Seller”) and the Purchaser shall be those set out below. No variation in these terms and conditions will apply unless expressly accepted in writing by an authorised employee of the Seller.
1.2 These terms and conditions cover all sales of products and services by the Seller and any information and advice given whether charged for or not.

2. Catalogues, Drawings, Sketches
2.1 All statements (whether written or oral), descriptions, drawings, sketches photographs, illustrations, diagrams, or specifications concerning the goods made or given by or on behalf of the Seller before contract, whether in catalogues, brochures, leaflets, price lists or otherwise, hard copy or electronic format, are for the purpose of information and guidance only.
2.2 Where goods are sold by reference to descriptions in a catalogue, the goods are sold subject to the tolerances and variations expressed or implied in the catalogue. In that design and sources of supply may change from time to time the Seller shall have the right to supply goods of altered design or from a new source of supply.

3. Prices
3.3 The Seller reserves the right to change the prices shown in catalogues and price lists at any time.

4. Payment
4.1 Payment in full (including any VAT, transport, insurance, packaging, and/or additional charges) is due within 30 days from date of invoice.

5. Delivery
5.7 Delivered products remain the property of the Seller until paid for in full.

10. Passing of Risk and Property
10.1 Where the Seller undertakes delivery of the goods to the Purchaser’s premises, the risk in the goods shall pass at the time of delivery.
10.2 The goods shall remain the property of the Seller until the price has been fully paid and the Seller shall be entitled to recover the goods at any time until property has passed. Until property passes the Purchaser shall take all reasonable steps to keep the goods separately identifiable from other property, but shall not be prohibited from using such goods.

11. Termination and Suspension
11.1 The Seller shall have the right, without prejudice to its other rights, to cancel or suspend the performance of the contract or any part thereof should the Purchaser be in default of any of its obligations under the contract or should there be amounts due and unpaid by the Purchaser to the Seller whether in respect of the Purchaser’s obligations under the contract or any other contract.

12. Proper Law
12.1 This contract shall be governed by and construed according to English Law and the Purchaser submits to the jurisdiction of the English Courts.

paddyrg

I'm taking the moral high ground - it was a mistake, and you know it - let it go! I think it is typical for most web companies to say the contract forms on dispatch, and I do understand your point about the terms of the site do not indicate it clearly in this case, but all told do the decent thing and let it go!

Alternatively, you could ask the vendor if they would accept a compromise on price, so they still get a sale at reduced profit, and you still get some benefit for your inconvenience? Best of both worlds?! :-)

arcon5

What you may be entitled to legally is probably irrelevent to be honest.

Quite simply, you can't force the retailer to honour the sale and its probably not worth the time, effort or money to go to court.

bris

Neither 5.7 or 10.2 imply that the contract is formed on payment alone.
5.7 the property was never delivered.
10.2 the goods were never fully paid for, i.e the mistake.

3.3 to me looks like the seller has a get out as they changed the price.
Apart from that, the law allows for human error as long as it's not a deliberate attempt to mislead.

christopher_barbour

thanks,

Its just strange because when selling on ebay, a contract is formed as soon as the buyer clicks the button or the auction closes. It was always my view that once the sale has closed or, in particular, once payment has been made, the contract stands, and it is really up to the buyer whether or not they are prepared to cancel or reach an agreement over price.

I sell many antiquarian books and have erroneously listed items in the past. Normally I just let it go, but on one occasion a rather collectable 1st edition was sold at the price of one without a dustjacket and the price difference was over £100 so i notified the buyer of the error and requested that the sale be cancelled. The buyer was very amicable and was happy to pay more for it.

The monopolies like amazon/abebooks squeeze online sellers to near breaking point, creaming so much from their sales, then have the arrogance to just cancel an order that they've made a mistake on without any courtesy or sense of honour.

In a physical market if something is mispriced and it is paid for at the till the seller cant run you down on your way out, grab the item back, then stuff your cash back in your top pocket saying "no contract!". The seller could however run you down and say "sorry ive made an honest mistake but I've five hungry children and a sick mother out back that are looking to me for answers..."

The point is it would be your prerogative to grant compassion to the humble merchant or, if the merchant is not so humble and your prepared to take the moral middle ground, to say "not on your nelly mate!"

I know its a bit sad but its a matter of principle - besides i must have a bone to pick

Oopsadaisy

Paid, paid, paid, paid, paid, paid, paid, paid.

Oh, that feels better.

arcon5

christopher_barbour wrote: »

The monopolies like amazon/abebooks squeeze online sellers to near breaking point, creaming so much from their sales, then have the arrogance to just cancel an order that they've made a mistake on without any courtesy or sense of honour.

Its funny how you imply amazon to be a very expensive platform to sell on, then in the same sentence wanting to force the seller to honour a mistake in price which would see them at a loss.

christopher_barbour wrote: »

In a physical market if something is mispriced and it is paid for at the till the seller cant run you down on your way out, grab the item back, then......

But.................... if you got to the till and they realised to mistake they could rectify it there and then and deny the sale.

Online is an offer to treat when you buy an item, in store is effectively the same when you take the items to the till and they can refuse to sell them to you.


When you use buy now on ebay your forming a contract at that point, if they changed their terms to at time of dispatch then it wouldn't be. I think it simply comes down to their terms and conditions.

But even with that being the case, back to my earlier point.. you can't force the seller to send out the goods to you and I doubt it would ever be worth going to court over. So really, there's nothing you can do.