Goods Sold on to Third Party After Payment

adh747

I need some thoughts on the following scenario which happened recently.

Goods were ordered and paid for from a Company in the UK via a BACS payment on the 1st July. We asked if the goods could be held for a couple of weeks until they were needed on site. This was agreed on the phone and followed up by me in an email.
Subsequently a delivery date was arranged on the phone for the goods to be delivered on the 1st August. The goods never turned up and the company was contacted to find out where they were. Initially it seemed like a delivery problem until later in the day when the company confirmed they had despatched the goods to another customer. The company now had nil stock and wouldn't have any for several weeks. Due to this error we had costs paid out to contractors who were due to start work on site the next day.
Due to the nature of the goods ordered we had no alternative but to order from an alternative supplier who had stock. However this cost an additional £500.
The original company refused to accept a breach of contract and resulting consequential costs. They did refund the original contract amount though. I am now using the moneyclaimonline system to try and recoup costs.
Anyone provide additional guidance on where we stand legally. I have been advised that as the goods were paid for then to sell these to another party is illegal and misappropriation of goods.

mije1983

As it's a b2b deal, you'd need to see what your original contract with them stated regarding a breach from either party and what, if any, costs would be borne. It's not as straight forward as a consumer transaction.

adh747

mije1983 wrote: »

As it's a b2b deal, you'd need to see what your original contract with them stated regarding a breach from either party. It's not as straight forward as a consumer transaction.

Sorry not sure I understand. When you say b2b do you mean a business to business deal? If so, it wasn't. I'm a consumer and was purchasing the goods for personal use on a building project.

mije1983

adh747 wrote: »

Sorry not sure I understand. When you say b2b do you mean a business to business deal? If so, it wasn't. I'm a consumer and was purchasing the goods for personal use on a building project.

Ah ok, apologies then. Teach me to skim read!

unholyangel

adh747 wrote: »

Sorry not sure I understand. When you say b2b do you mean a business to business deal? If so, it wasn't. I'm a consumer and was purchasing the goods for personal use on a building project.

I need to ask you to clarify this. Purchasing the goods for personal use on a building project doesn't necessarily mean its a consumer sale. The consumer rights act defines what a consumer is and it says:

"(3)“Consumer” means an individual acting for purposes that are wholly or mainly outside that individual’s trade, business, craft or profession."

So, are you a competent DIY'er or a skilled tradesman doing work on your own property?

adh747

unholyangel wrote: »

I need to ask you to clarify this. Purchasing the goods for personal use on a building project doesn't necessarily mean its a consumer sale. The consumer rights act defines what a consumer is and it says:

"(3)“Consumer” means an individual acting for purposes that are wholly or mainly outside that individual’s trade, business, craft or profession."

So, are you a competent DIY'er or a skilled tradesman doing work on your own property?

I'm a DIY'er working on my own property. It is wholly outside my normal job.

unholyangel

adh747 wrote: »

I'm a DIY'er working on my own property. It is wholly outside my normal job.

Thanks for that. Were you given any T&C's from them at all? Particularly looking for if they exclude consequential loss & also if they state when acceptance takes place. Or when transfer of ownership/title takes place?

adh747

unholyangel wrote: »

Thanks for that. Were you given any T&C's from them at all? Particularly looking for if they exclude consequential loss & also if they state when acceptance takes place. Or when transfer of ownership/title takes place?

No T&Cs at all provided. We were emailed an invoice for payment with a description of the goods and total price including VAT & delivery. This was paid in full but no terms & conditions ever received either before or after the transaction.

bris

Sounds like loss of bargain but to claim you need to follow the correct procedures which includes giving them a chance to put it right and mitigating your losses, you need to be able to prove you did this.

adh747

Thanks for reply.

We attempted as much mitigation as we could under the circumstances. We attempted to explain the situation we were in and asked the company to source the goods from elsewhere given the circumstances. They refused citing cost. We asked if they wanted to use an ADR but they ignored this request. We attempted to source the goods elsewhere with the minimum of extra cost and managed to negotiate a discount with the only supplier who had stock. In addition we minimised the costs incurred on us by third parties by informing them as soon as possible. However given that we weren't informed of the non delivery until the afternoon of the agreed delivery date, this was not great.

It's a matter of fact that we paid for the goods in full and the company had the goods at time of payment and also at the time of confirming the delivery date. The company then went on to sell these goods at another customer. I can't see how this is legal as the goods transferred to us at time of payment. To sell those goods on is surely misappropriation of goods.

Can you explain the definition of loss of bargain. I haven't come across this before. I've been reading the Consumer Rights Act but didn't find a reference to this term.

steampowered

Needing to delay the contractors isn't "consequential loss" within the legal meaning of the term. Its a direct loss perfectly foreseeable from their failure to deliver, particularly as you told the seller when the goods should be on site.

Obviously read any T&Cs you are given, but it sounds to me like you should probably issue a money claim for breach of contract claiming all of the losses you have suffered.

The way to proceed would be to write the business a formal 'letter before action' setting out that they have breached their contract, explaining what loss you have suffered as a result and ask them to make it write. Give them a 14 day deadline to respond saying that a money claim will be issued if you do not receive an acceptable response within that timeframe (14 days is the period suggested in the court's Civil Procedure Rules).

It's a matter of fact that we paid for the goods in full and the company had the goods at time of payment and also at the time of confirming the delivery date. The company then went on to sell these goods at another customer. I can't see how this is legal as the goods transferred to us at time of payment. To sell those goods on is surely misappropriation of goods.

If the goods were your property, and they were then sold to a third party without your permission, you could sue the seller for 'conversion' of your property.

Conversion would get you the amount paid by the other customer to the seller plus costs. But you can't get damages for conversion AND damages for a breach of contract. So in this case it sounds like you are better off just claiming breach of contract.