Is this legal??????

frugal_mike

Anselm wrote: »

Oh, I didn't see that refund page; I didn't realise you had to click on something else.

Where terms and conditions are ambiguous they are interpreted in favour of the consumer so SoGA and DSR aside I guess the terms most beneficial to the consumer would apply. If this was to be decided purely on contract law (e.g if it was a b2b contract) then I haven't got a clue how they would decide.

Anselm

frugal_mike wrote: »

Where terms and conditions are ambiguous they are interpreted in favour of the consumer so SoGA and DSR aside I guess the terms most beneficial to the consumer would apply. If this was to be decided purely on contract law (e.g if it was a b2b contract) then I haven't got a clue how they would decide.

In B2b, the parties are considered more equal. The approach generally taken, is the 'mirror image' rule,
In, Butler v Ex-Cell-O Corp (England) Ltd [1979] 1 WLR 401, the sellers Butler sold a machine on their standard terms of business. The buyers sent off an order which had a tear-off slip that said the sellers (butler) accepted on the buyers terms and conditions, which was accepted by Butler and returned.

Butler attempted to enforce the price variation clause.

Ex-cell-o refused to pay. Was held that contract was concluded on the buyers terms.

The majority, Lawton and Bridge LJJ applied the 'mirror image rule' - the court must be able to find, in the documents passed B2b, a clear and unequivocal offer which is matched or 'mirrored' by an equally clear and unequivocal acceptance. Essentially, because the buyers order didn't mirror the sellers offer (No price variation clause) a counter offer was made, killing off the Sellers offer. The traditional approach was later applied in Tekdata Interconnections Ltd v Amphenol Ltd [2009] EWCA Civ 1209.

frugal_mike

That's interesting. I wonder how that would apply when there is only one contract that is not internally consistent as appears to be the case on the Luke website (assuming the refund page is considered to be part of the contract).

unholyangel

They are registered in UK. Although perhaps naughty to only display a PO box address and not their registered office address (which under Companies Act 2006 - trading disclosures, they're supposed to display on their website and any communications).

The actual registered address seems to be a farm guesthouse. Unless they've filed a change of address and companies house haven't updated it yet. Although I'm not sure if that qualifies as a "full physical PO box address" as I think it needs the street name to be a full po box address (not 100% on that though).

Anselm

frugal_mike wrote: »

That's interesting. I wonder how that would apply when there is only one contract that is not internally consistent as appears to be the case on the Luke website (assuming the refund page is considered to be part of the contract).

Well, in my opinion, I'm not sure it'd be counted as part of the contract. In the first set of terms (Terms.asp) is states:

Please read our terms and conditions carefully. By using Luke1977.com ("Web Site") and/or buying from this Web Site means you agree to be bound by these terms and conditions.

Further on it states about cancellation, on the same page.

Now, I think that if I ordered something from that website, we'd be bound by those terms and have cancellation rights (soga and DSR aside) rather than having no rights under their returns policy (Returns.asp)

I think this, because in Terms.asp it says that "If you do not agree to accept these terms and conditions, please do not use this Web Site."

So presumably you contract on the first set? But, obviously DSR's and SOGA apply.

To be honest, I'm very surprised that their policies are so shoddy!

unholyangel

Anselm wrote: »

To be honest, I'm very surprised that their policies are so shoddy!

Look at a few hundred sets of T&Cs (even from big companies) and you'll stop being surprised. Tbh I'm a little more sympathetic if one man bands get it wrong compared to big companies. There are so many regulations they need to follow, even the pro's aren't flawless.

bris

Tbh a company can say you need to collect it from the moon for all the difference it makes, there is nothing in a retailers T&C's that can deny a consumers statutory rights.

The problem is however that some of those statutory rights are very unfair to the retailer so some will disregard them and then you have a fight on your hands.

Bottom line if you know the websites T&C's are wrong then you know you will be in a battle if the sale goes wrong, so why bother, buy elsewhere.

frugal_mike

bris wrote: »

Tbh a company can say you need to collect it from the moon for all the difference it makes, there is nothing in a retailers T&C's that can deny a consumers statutory rights.

The problem is however that some of those statutory rights are very unfair to the retailer so some will disregard them and then you have a fight on your hands.

Bottom line if you know the websites T&C's are wrong then you know you will be in a battle if the sale goes wrong, so why bother, buy elsewhere.

I agree in principle with not buying from a retailer that has illegal/unenforceable terms and conditions. However with this website in particular the terms and conditions are very confusing. They have put a '*' on various different items that they sell (such as items in the sale), and it is not immediately obvious what that '*' refers to and I might very well have missed it altogether if I didn't already know it was there. It appears to mean 'no returns under any situation, even if faulty'.

They also have policy written on several pages (such as the terms and conditions page and the refund policy page). It's very easy to miss one or other of the pages, and someone with no legal knowledge isn't going to know whether or not anything on those pages makes part of the contract or not, or whether any part of it is illegal or unenforceable. This is why OP appears to have only noticed the illegal 'no returns' policy after the order had been placed.