Taking Red Letter Days to court....

texranger

Azari wrote: »

Excellent letter.

I think some people here have a downright weird attitude to companies that pull this kind of stunt.

A sort of "whatever they say in the T&C's is automatically valid and reasonable and it's entirely your own fault if you didn't realise" attitude.

Fortunately, the law is not so unforgiving so if any of those people try and run a business on those terms they may be in for a rude awakening.

too many companies of which i can name another 2 (ebay,paypal) think that whatever they write in the T&C stand, they dont understand the law overrides these

BargainGalore

Only a court would settle this though, yes many companies do hide behind there T&C's of course the law always overrides these, unfair terms and conditions for example. That said it does seem pretty clear on T&C site its not hidden away

Azari wrote: »

Excellent letter.

I think some people here have a downright weird attitude to companies that pull this kind of stunt.

A sort of "whatever they say in the T&C's is automatically valid and reasonable and it's entirely your own fault if you didn't realise" attitude.

Fortunately, the law is not so unforgiving so if any of those people try and run a business on those terms they may be in for a rude awakening.

Azari

BargainGalore wrote: »

That said it does seem pretty clear on T&C site its not hidden away

Clarity isn't always the point.

One of the main failings that 'unfair terms and conditions' legislation tackles is T&C's which fundamentally limit the seller's obligation to provide the good or service that was purchased.

So, if you purchase a TV, and it runs hotter than you would like, then if the T&C's say it may run up to a certain temperature they may be deemed fair.

If, on the other hand you bought a fridge, all the T's&C's in the world will not protect the seller if the fridge does not cool things down.

This is the type of case we have here. The fundamental service that is being sold is the safe keeping of a sum of money for some specific purpose and the Term in question attempts to relieve the seller of their obligation to provide the exact service that they were paid to provide.

trevorhackett

Me again!

I actually read the letters referenced by Azari and then studied the detail of the Unfair Terms in Consumer Contracts Regulations referenced in that letter before I started action. Worth noting that there is no question as to whether these regulations exist or not - they do, and they apply to any 'standard' (i.e. not individually negotiated) contract. The fact that they state their Ts & Cs quietly in the pack and loudly on their website (which I have not visited) is neither here nor there. For the reference of a few contributors - not all Ts and Cs are legally fair or enforceable.

The interesting question is whether the combination of their Ts & Cs and my offer to compensate them for incurred loss to reactivate (which was refused) constitutes an unfairness. They have defended their position to my initial court claim against them with their standard 'it says so in the contract so tough' response, so it goes to court in the new year. We'll see which way it goes, I will keep you posted either way. I hear Northampton is lovely this time of year....

Azari

Please keep us updated.

texranger

Azari wrote: »

Clarity isn't always the point.

One of the main failings that 'unfair terms and conditions' legislation tackles is T&C's which fundamentally limit the seller's obligation to provide the good or service that was purchased.

So, if you purchase a TV, and it runs hotter than you would like, then if the T&C's say it may run up to a certain temperature they may be deemed fair.

If, on the other hand you bought a fridge, all the T's&C's in the world will not protect the seller if the fridge does not cool things down.

This is the type of case we have here. The fundamental service that is being sold is the safe keeping of a sum of money for some specific purpose and the Term in question attempts to relieve the seller of their obligation to provide the exact service that they were paid to provide.

so if you purchased a tin of beans from tesco last year with a use by date of 12/6/2011 would you take them back on 13/6/2011 and say i purchased these last year and forgot about them and they should of been used by yesterday can you replace them. do you think you would get them replaced i would say NO. as the date was clear when they were to be used by, same with a voucher the expiry date is marked clearly and they are clear in their TOS so you have no comeback

trevorhackett

texranger, see previous comments about perishables vs. non perishables, and the Unfair Terms in Consumer Contracts Regulations. It's all in the thread....

trevorhackett

I should have been more explicit - when I said 'no comments about sausages', I obviously didn't make the point widely enough to exclude the great baked beans debate. Oh well.

Azari

texranger wrote: »

so if you purchased a tin of beans from tesco last year with a use by date of 12/6/2011 would you take them back on 13/6/2011 and say i purchased these last year and forgot about them and they should of been used by yesterday can you replace them. do you think you would get them replaced i would say NO. as the date was clear when they were to be used by,

Obviously not.

Everyone expects that when they buy food it will have a shelf life and that shelf life is clearly stated on the label.

It's perfectly fair to expect that food will not last indefinitely so the terms of sale are not in any way unfair.

same with a voucher the expiry date is marked clearly and they are clear in their TOS so you have no comeback

Not the same thing at all.

There is a very important difference there.

In the case of the beans, Tesco supplied you with exactly what you paid for.

In the OP's case the company concerned didn't. They supplied a proxy for what was purchased (the 'experience') and are now relying on unfair terms to renege on their obligation.

The question here is: 'is a certain term fair?"

Saying that an item of food has some reasonable shelf life is clearly fair. It would be onerous to expect Tesco to replace food indefinitely just because someone forgot o use it. It would be an actual cost to them.

Saying that if you give me money then it becomes mine if you forget to ask for it is not fair because there is no quantifiable cost to me if you fail to reclaim the money in a relatively short period of time.

The first thing a judge would ask if the case ever came to court would be: "in what way would you be placed under an onerous burden if you were expected to honour the voucher?". And the only realistic answer to that is that it would prevent then making bunce because customers did not realise that their voucher expired.

On the other hand, a term that stated that the customer may have to pay a supplement if the cost of the experience had risen after a set period of time almost certainly would be considered fair.

The_Pedant

The exact expiry date will be printed on the voucher or advised upon successful activation

Question: Was the date printed on the voucher, or another piece of card?
If the latter then the date is clearly not 'on the voucher' as advised. The question therefore may be what is detailed for the process to 'activate' the voucher?