If not Loss of Bargain, what are our rights?

mattwhite1

Will keep it simple, my wife ordered a felting machine from Create and Craft.

Was on special offer for £150, when normally it retails for around £250.

Wife ordered one, and was 'despatched' 4 weeks ago - but never arrived. Was sent via a non-trackable transit company. After many hours chasing them, and sending back a non-receipt form they confirmed that a new one would be sent out.

2 days later, we get an email telling us that we have been refunded (we didnt ask for one) as they are now out of stock, but dont know if they will get anymore within 30 days.

Essentially this means that they will not be getting anymore in, but I dont feel that we should be penalised for something that is not our fault.

Does this constitute loss of bargain? If not, what are our rights? Will hopefully be speaking to them tomorrow, and woud be handy to be fully armed.

lucy03

I personally think it may well do in theory, and so it's worth mentioning in a letter to the company. The terms and conditions the company has may be relevant, provided they're not unfair, as well, so that may make the matter more complex.

In addition, and other posters will no doubt have more experience than me, I have seen two cases similar in principle to this go to small claims court, and they weren't successful, so I'd personally advise caution before actually pursuing a legal route to avoid losing money on court fees.

bris

Loss of bargain won't come into this. The other side tried to fulfill the contract but a third party let you both down, this means there is no liability on the retailer as it wasn't their fault. A refund is all they need to do.
Loss of bargain would have worked if they charged you for the product only to let you down because they didn't have the product in the first place to sell you.
It may be the case they didn't have the product but made up a lost in the post excuse, but you would need to prove that.

arcon5

bris wrote: »

Loss of bargain won't come into this. The other side tried to fulfill the contract but a third party let you both down, this means there is no liability on the retailer as it wasn't their fault. A refund is all they need to do.
Loss of bargain would have worked if they charged you for the product only to let you down because they didn't have the product in the first place to sell you.
It may be the case they didn't have the product but made up a lost in the post excuse, but you would need to prove that.

No it doesn't. They are still liable for their third part mess ups. In the same way as they are liable for loss or damage by a courier.

The question is whether this would be seen as loss of bargain...
there was a thread recently whereby a chap took madbid (?) to court as they refused to honor a price despite having stock and a contract being formed... and won.
Where as in this instance they did attempt to fulfil the contract so a judge may not see it in the same light.

It also comes down a lot to what their terms state.

McKneff

No chance, you are back to where you were before the thing was ordered.

You have not suffered any loss.

Guardsman

Could you ask them to provide proof that they did attempt to send it to you.
I would presume that they have put in a insurance claim and the courier would also have a delivery record.

shaun_from_Africa

Guardsman wrote: »

Could you ask them to provide proof that they did attempt to send it to you.

They could ask, but is there really any point?

If the retailer made a mistake with the listing and didn't want to sell at the advertised price, then all they would have needed to do was to inform the buyer before the goods were sent out and there wouldn't be any need for them to make up a story about the item being lost.

Guardsman

In this case it seems there was not a mistake with the listing and they showed willing to sell at the advertised price.
If they were not sent out in the first place because they did not have the item in stock would that make a difference and maybe be a reason to make up a story.

shaun_from_Africa

If they were not sent out in the first place because they did not have the item in stock would that make a difference

No.
Their T&C's state that a contract is only formed when the goods are dispatched and they have the right to cancel any orders up until that time. (if for example a pricing or stock error is made).

Guardsman

They said it was dispatched and the courier lost it.

shaun_from_Africa

I realise that, but my point was simply that there is not really any point in asking for proof that the item was lost.

If it was genuinely lost and the retailer can't get hold of another one, they have done all they can by refunding, and if they made a mistake over pricing or stock then they wouldn't have needed to lie about the courier losing it.

Pushing for proof will only end up causing stress and in all likelyhood won't do anything to help get a replacement.