Sale contract rights

DomRavioli

Hi OP,

Do you have proof that the goods were dispatched?

wealdroam

Suited72 wrote: »

They point blank refuse and state their terms but terms have to comply with SOGA else they cannot be enforced.

But their terms do comply with SoGA.

Section 28 of The Sale of Goods Act says:

28 Payment and delivery are concurrent conditions.

Unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions, that is to say, the seller must be ready and willing to give possession of the goods to the buyer in exchange for the price and the buyer must be ready and willing to pay the price in exchange for possession of the goods.

Note those words "Unless otherwise agreed".

You have agreed with B&Q that the contract is in place "when the Products are despatched to you or at the point the Products are collected by you in store (as the case may be)".

The question is, had the goods been despatched to you at the time that B&Q phoned you to cancel?


That aside, you might like to read this article.

InsideInsurance

Suited72 wrote: »

Its an oven from B&Q which was sold for £279 but will cost me £679 to buy the same item now that theyve cancelled and refunded after 6 weeks waiting for the delivery.


Do you claim the difference of £400 + Court fees? Or is there a different court system for demanding they supply the item? This is all i want them to do, but its starting to take considerable time.

You would normally claim the price difference rather than getting an injunction to force them to provide the goods (not sure if the small track can do these kinds of injunctions)

As others have said, the crux of the matter is if the contract had actually been formed or not. If you bought it from the internet then the terms on their site say it hasnt been unless you can prove it was actually dispatched.

bod1467

Did you receive a despatch email?

I guess it depends on when "despatch" is deemed to have occurred - when the email is sent or when the goods physically arrive.

lucy03

Suited72 wrote: »

B&Q and myself have been communiacting over email. I replied to their email with subject "Notice of intent to start legal proceedings within 14 days of this email"


They replied with
"Thank you for your email, our stance remains the same, our terms and conditions are clear in that in the case of a mis price we can choose not to accept the order and cancel."
They went on to give the company details and address with which to apply for a legal claim.

Is that what you would deem a letter before action?

That would probably suffice as a letter before action because they've responded effectively saying they're not going to change their position and inviting you to begin legal proceedings. So if you wanted to go to court then you can submit your claim to proceed under the small claims track.

The district judge will make a decision in the court generally, in my experience, based on the law as well as whether the retailer has acted reasonably. If he thought that the latter hadn't happened he might perhaps make a judgement based on loss of bargain, but I have to say, I consider that a bit unlikely. The terms and condition of the retailer aren't unreasonable, they've just not been able to send the item so they've refunded you.

In a small claims court just keep things simple, the judge doesn't expect the consumer to be able to pinpoint aspects of law. Consumers aren't expected to bring legal advice so the courts don't expect legal knowledge. You can't really claim for time, just provable losses, maybe some phone calls.

Your best bet here is that the retailer can't be bothered to attend court so they settle. I get the impression though that they might pursue this just to stop other people doing the same. It's probably not something I'd contest personally.

Going to court can be stressful, people get wound up, irritated, and the like. I'd really try and avoid the situation if possible, but that's just my view.

bris

You may very well have a claim for loss of bargain, acceptance is when they agree the price and no T&C's can opt them out of that. i'e they are selling them and take the order but sell out before a few can be fulfilled, this isn't the customers problem. They shouldn't be accepting orders on products they can't meet the supply demand for.


There is case law on this very site for the exact same scenario.


But an important point to remember, before you can claim loss of bargain you need to buy the other item first and make the claim, you can't just ask for the difference if you have not bought it as until then there is no loss. The proof the courts need is the receipts to prove what you had to pay.


P.s, no you can't claim for time spent and inconvenience, only provable losses

George_Michael

bris wrote: »

You may very well have a claim for loss of bargain, acceptance is when they agree the price and no T&C's can opt them out of that. i'e they are selling them and take the order but sell out before a few can be fulfilled, this isn't the customers problem. They shouldn't be accepting orders on products they can't meet the supply demand for.

You really don't have a clue about consumer law do you bris?


Companies are legally entitled to state when a contract has been formed, and surely you must know that simply agreeing a price in no way signifies that any contract has occurred.
http://www.adviceguide.org.uk/wales/consumer_w/consumer_different_ways_of_buying_e/consumer_buying_by_internet_mail_order_or_phone_e/how_a_distance_sale_contract_is_made.htm

To work out whether the trader has accepted your offer, you'll need to check the following:

the wording of your confirmation email or letter. For example, it might specify that the trader has accepted your offer.

The terms and conditions. For example, they might say when acceptance takes place whether the goods have been sent out or the service has started – if they have, it would be safe to assume that the trader has accepted your offer if payment has been taken. If payment has been taken from you this does not necessarily mean acceptance has happened, but it could be a good indicator.

Similar advice can be found on Trading standards websites.

Suited72

DomRavioli wrote: »

Hi OP,

Do you have proof that the goods were dispatched?

I have a text saying "your items are scheduled for delivery at my address tomorrow between 2:45-3:45pm. If you have issues which will affect this delivery please call us on xxxxxxxxx"


The adviceguide site says an "email confirming despatch". Based on that I dont need proof it was loaded onto a van i dont think?


To me, the text confirms the action of despatch. What would they be asking me to wait in to receive if nothing has been sent?

Suited72

Thanks for everyones help. It is a little overwhelming but I feel im within my rights to take a punt.


Ive claimed with money claim online for difference + £50 damages / inconvenience + £35 costs. If i lose, i dont mind.


From what i can tell its all about my perception of despatch. Because on some advice sites for companies that i found it states never to give the consumer a delivery date or time as this would form the contract and where possible to avoid taking payment. It doesnt mention anything about loading the item onto a van or picking the item which i suppose are the physical point of despatch. And a company could lie about that.

Consumer direct confirmed for me it would be unfair for a company selling online to state within its terms that a contract is formed when delivery takes place and so its back to the point of "despatch"


Other than an email giving me a time I dont know any other way to define it.


Anyway, here goes. Ill update this thread in a couple of weeks either way.

shaun_from_Africa

This might be a stumbling block which could well see your claim rejected before it even gets started.

Suited72 wrote: »

Ive claimed with money claim online for difference + £50 damages / inconvenience + £35 costs. If i lose, i dont mind

MCOL is for claiming provable losses and not for unprovable things such as damages or inconvenience. If you could provide proof of where this £50 figure came from (phone calls, time off work etc) you might have a chance of getting it, but without this I can't see your case being progressed to the next stage.