I need help getting a refund from Argos with PC

Okell

[  Ignore - posted in error]

Okell

the_lunatic_is_in_my_head said:

... The issue I have with this advice is the part in bold, if it were a distance contract why would the consumer lose their deposit? The law requires a full refund in the event of cancellation. 

OK.  I think what they're trying to say is that if the statutory right to cancel under the CCRs did not exist, then under common law basic principles of contract (ie "... in legal terms...") there would be a binding contract after a deposit had been paid, and the purchaser would lose that deposit if they subsequently breached the contract.

But under the statutory provisions of the regs, the purchaser is now of course entitled to cancel a distance contract and recover everything they've paid.  (Does that make sense?)

I think what can be said as a general rule is that if full payment has been made before collection on a click and collect contract, then the contract has been concluded for the purposes of the regs before the consumer visits the trader's premises to collect the goods, and it's a distance contract.

What's not so clear is where full payment has not been made prior to collection.

If you have offer, acceptance and consideration I'd say a contract is concluded for these purposes.  I'm not certain if consideration has to be in the form of actual payment.  Can an agreement - or an implied agreement - to pay amount to sufficient consideration for a contract to exist?

In summary - if payment has been made then the contract has been concluded: but the absence of payment in itself doesn't necessarily mean the contract has not been concluded...   

the_lunatic_is_in_my_head

Okell said:

[@the_lunatic_is_in_my_head -  do you have a link to that guidance?}

Sure that is here (page 30 for the bit quoted):

https://commission.europa.eu/document/download/f1f42e20-e4a1-4d8b-a1ef-d06acccba34e_en?filename=crd_guidance_en_0_updated.pdf

As a side note there is updated guidance doc here:

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52021XC1229(04)&qid=1640961745514

but that was written after we left the EU so I usually stick to the original but what's there might generally be of use too but in this case I'm not sure the rest of page helps us. .

Okell said:

the_lunatic_is_in_my_head said:

... The issue I have with this advice is the part in bold, if it were a distance contract why would the consumer lose their deposit? The law requires a full refund in the event of cancellation. 

OK.  I think what they're trying to say is that if the statutory right to cancel under the CCRs did not exist, then under common law basic principles of contract (ie "... in legal terms...") there would be a binding contract after a deposit had been paid, and the purchaser would lose that deposit if they subsequently breached the contract.

But under the statutory provisions of the regs, the purchaser is now of course entitled to cancel a distance contract and recover everything they've paid.  (Does that make sense?)

What you say makes perfect sense What they (law firm in the link) say doesn't because if taking a deposit concludes the contract with it becoming a distance sale that doesn't bind the consumer because they have the right to cancel so what's the point? A car dealer would be better off concluding the contract in the showroom as on premises to save the consumer driving the car for 14 days and then changing their mind. 

Other than people being misguided about their rights or perhaps being more serious if they put down a deposit I can't see why a car dealer would benefit from a distance contract if they are permitted by law to work around it and make it on premises instead. 

Of course talk of cars doesn't help much because retailer shops aren't taking deposits, instead full payments, it was just the closest I could find... 

Okell said:

the_lunatic_is_in_my_head said:

... The issue I have with this advice is the part in bold, if it were a distance contract why would the consumer lose their deposit? The law requires a full refund in the event of cancellation. 

I think what can be said as a general rule is that if full payment has been made before collection on a click and collect contract, then the contract has been concluded for the purposes of the regs before the consumer visits the trader's premises to collect the goods, and it's a distance contract.

What's not so clear is where full payment has not been made prior to collection.

If you have offer, acceptance and consideration I'd say a contract is concluded for these purposes.  I'm not certain if consideration has to be in the form of actual payment.  Can an agreement - or an implied agreement - to pay amount to sufficient consideration for a contract to exist?

In summary - if payment has been made then the contract has been concluded: but the absence of payment in itself doesn't necessarily mean the contract has not been concluded...   

I think the issue with payment is that there are websites that take payment when you order but say acceptance doesn't occur until they dispatch so by that measure a contract hasn't been concluded, i.e the deal is not done yet.  

The only doubt in my mind in this area is where the trader can say acceptance occurs at a specific point so, for any retailer, could they say for C&C orders acceptance occurs when the customer collects the goods or does something in contract law prohibit that? 

But if that was the case why aren't the big retailers saying such in their terms (or are they and I haven't noticed)? 

Okell

the_lunatic_is_in_my_head said:

I think the issue with payment is that there are websites that take payment when you order but say acceptance doesn't occur until they dispatch so by that measure a contract hasn't been concluded, i.e the deal is not done yet.  

The only doubt in my mind in this area is where the trader can say acceptance occurs at a specific point so, for any retailer, could they say for C&C orders acceptance occurs when the customer collects the goods or does something in contract law prohibit that? 

But if that was the case why aren't the big retailers saying such in their terms (or are they and I haven't noticed)? 

I wondered about that too...

If you ignore any complications about consideration for the moment, a contract is formed when you have offer and acceptance.  For most distance contracts the consumer makes an offer by placing an order, and the trader accepts that offer when they dispatch the goods.  So before dispatch there is no contract; after dispatch there is a contract.

It doesn't sound right to me that a trader should be able to say that their acceptance of the offer only happens when or after the consumer collects the goods, or that their acceptance is in some way conditional on the consumer collecting the goods.  I think an offer has to be made by some action of the consumer - not the trader - and similarly I think the trader's acceptance has to be by some action of the trader - not some action of the consumer.

So I don't think a trader would be able to postpone formation of a contract until the goods are collected by the consumer.  But I would also be happy to be persuaded otherwise...

Of course none of this really helps understand what was intended by using an ambiguous term like "concluded" rather than something clearer like "formed" or "agreed" or "had become binding".

I've often heard or read the phrase "A contract is only formed when..."  I don't think I've ever heard or read the phrase "A contract is only concluded when..."

Okell

the_lunatic_is_in_my_head said:

... What they (law firm in the link) say doesn't because if taking a deposit concludes the contract with it becoming a distance sale that doesn't bind the consumer because they have the right to cancel so what's the point? A car dealer would be better off concluding the contract in the showroom as on premises to save the consumer driving the car for 14 days and then changing their mind. 

Other than people being misguided about their rights or perhaps being more serious if they put down a deposit I can't see why a car dealer would benefit from a distance contract if they are permitted by law to work around it and make it on premises instead...

If I've understood correctly what some other posters have said on car buying threads, I think most "click and collect" car dealers try to ensure that when the consumer collects the car, there is still some element of the contract that has to be "concluded" on the dealer's premises.  (Although whether that is enough to prevent it being a distance contract I simply don't know).

Otherwise yeah - I don't really understand why car dealers would be happy to be in the distance sales business when they could easily avoid it.  It seems very risky when you're selling high value items that lose their value very quickly.

What I also don't understand is people buying a car at a distance without ever seeing it or ever test driving it.  Yes you've got the right to cancel but I wouldn't want the inevitable hassle.

ArbitraryRandom

Okell said:

the_lunatic_is_in_my_head said:

I think the issue with payment is that there are websites that take payment when you order but say acceptance doesn't occur until they dispatch so by that measure a contract hasn't been concluded, i.e the deal is not done yet.  

The only doubt in my mind in this area is where the trader can say acceptance occurs at a specific point so, for any retailer, could they say for C&C orders acceptance occurs when the customer collects the goods or does something in contract law prohibit that? 

But if that was the case why aren't the big retailers saying such in their terms (or are they and I haven't noticed)? 

I wondered about that too...

If you ignore any complications about consideration for the moment, a contract is formed when you have offer and acceptance.  For most distance contracts the consumer makes an offer by placing an order, and the trader accepts that offer when they dispatch the goods.  So before dispatch there is no contract; after dispatch there is a contract.

It doesn't sound right to me that a trader should be able to say that their acceptance of the offer only happens when or after the consumer collects the goods, or that their acceptance is in some way conditional on the consumer collecting the goods.  I think an offer has to be made by some action of the consumer - not the trader - and similarly I think the trader's acceptance has to be by some action of the trader - not some action of the consumer.

So I don't think a trader would be able to postpone formation of a contract until the goods are collected by the consumer.  But I would also be happy to be persuaded otherwise...

Of course none of this really helps understand what was intended by using an ambiguous term like "concluded" rather than something clearer like "formed" or "agreed" or "had become binding".

I've often heard or read the phrase "A contract is only formed when..."  I don't think I've ever heard or read the phrase "A contract is only concluded when..."

I think this is something that would have to be reviewed by the courts... looking at it their T&Cs say exactly that (the contract is concluded on collection), but if you look at their section of price changes it suggests the price is fixed at the point of online purchase (a customer would not face a price increase on collection and would have to receive a refund/repurchase to benefit from a price decrease)... suggesting otherwise. 

Okell

ArbitraryRandom said:

Okell said:

the_lunatic_is_in_my_head said:

I think the issue with payment is that there are websites that take payment when you order but say acceptance doesn't occur until they dispatch so by that measure a contract hasn't been concluded, i.e the deal is not done yet.  

The only doubt in my mind in this area is where the trader can say acceptance occurs at a specific point so, for any retailer, could they say for C&C orders acceptance occurs when the customer collects the goods or does something in contract law prohibit that? 

But if that was the case why aren't the big retailers saying such in their terms (or are they and I haven't noticed)? 

I wondered about that too...

If you ignore any complications about consideration for the moment, a contract is formed when you have offer and acceptance.  For most distance contracts the consumer makes an offer by placing an order, and the trader accepts that offer when they dispatch the goods.  So before dispatch there is no contract; after dispatch there is a contract.

It doesn't sound right to me that a trader should be able to say that their acceptance of the offer only happens when or after the consumer collects the goods, or that their acceptance is in some way conditional on the consumer collecting the goods.  I think an offer has to be made by some action of the consumer - not the trader - and similarly I think the trader's acceptance has to be by some action of the trader - not some action of the consumer.

So I don't think a trader would be able to postpone formation of a contract until the goods are collected by the consumer.  But I would also be happy to be persuaded otherwise...

Of course none of this really helps understand what was intended by using an ambiguous term like "concluded" rather than something clearer like "formed" or "agreed" or "had become binding".

I've often heard or read the phrase "A contract is only formed when..."  I don't think I've ever heard or read the phrase "A contract is only concluded when..."

I think this is something that would have to be reviewed by the courts... looking at it their T&Cs say exactly that (the contract is concluded on collection), but if you look at their section of price changes it suggests the price is fixed at the point of online purchase (a customer would not face a price increase on collection and would have to receive a refund/repurchase to benefit from a price decrease)... suggesting otherwise. 

Ah.  Do you mean this bit?

"2.3 Acceptance of your order and the completion of the contract between you and us will take place on despatch to you of the products ordered unless your order is placed in breach of these terms and conditions and/or we have notified you that we do not accept your order or you have cancelled it (please refer to Returns and refunds). For FastTrack and Tu clothing orders, completion of the contract between you and us will take place when the products ordered have been collected from the store"  [My bold for emphasis]

Terms & Conditions (argos.co.uk)

Don't laugh but I hardly ever buy anything online  

So does the first bit I've put in bold not apply to click and collect?  Does it only apply to stuff delivered direct to the consumer?

Is click and collect covered by the second bit in bold?  (I know Tu refers to the clothing brand in Sainsburys but what is FastTrack referring to in this context?)

In any case, it would appear that Argos are attempting to make anything that is "collected" outside the scope of distance sales.  As you say, might need to be decided by a court...

the_lunatic_is_in_my_head

Okell said:

Ah.  Do you mean this bit?

"2.3 Acceptance of your order and the completion of the contract between you and us will take place on despatch to you of the products ordered unless your order is placed in breach of these terms and conditions and/or we have notified you that we do not accept your order or you have cancelled it (please refer to Returns and refunds). For FastTrack and Tu clothing orders, completion of the contract between you and us will take place when the products ordered have been collected from the store"  [My bold for emphasis]

Terms & Conditions (argos.co.uk)

Don't laugh but I hardly ever buy anything online  

So does the first bit I've put in bold not apply to click and collect?  Does it only apply to stuff delivered direct to the consumer?

Is click and collect covered by the second bit in bold?  (I know Tu refers to the clothing brand in Sainsburys but what is FastTrack referring to in this context?)

In any case, it would appear that Argos are attempting to make anything that is "collected" outside the scope of distance sales.  As you say, might need to be decided by a court...

Yes I saw this but FastTrack can be either delivery or C&C so you could have a FastTrack order delivered to your door and by those terms acceptance never takes place? 

Okell said:

If you ignore any complications about consideration for the moment, a contract is formed when you have offer and acceptance.  For most distance contracts the consumer makes an offer by placing an order, and the trader accepts that offer when they dispatch the goods.  So before dispatch there is no contract; after dispatch there is a contract.

It doesn't sound right to me that a trader should be able to say that their acceptance of the offer only happens when or after the consumer collects the goods, or that their acceptance is in some way conditional on the consumer collecting the goods.  I think an offer has to be made by some action of the consumer - not the trader - and similarly I think the trader's acceptance has to be by some action of the trader - not some action of the consumer.

So I don't think a trader would be able to postpone formation of a contract until the goods are collected by the consumer.  But I would also be happy to be persuaded otherwise...

Of course none of this really helps understand what was intended by using an ambiguous term like "concluded" rather than something clearer like "formed" or "agreed" or "had become binding".

I've often heard or read the phrase "A contract is only formed when..."  I don't think I've ever heard or read the phrase "A contract is only concluded when..."

I think as you suggested further up concluded comes either from a translation or from what ever legal language they use in the EU. 

RE the bit in bold I don't know enough about contract law to comment, sounds logical but that might not mean much!  

Back on cars for a second, the themotorombudsman (whoever they are) says

https://www.themotorombudsman.org/distance-sales-faqs#:~:text=The answer is generally no,'bricks and mortar' purchase.

I have bought a car from a business using a ‘click-and-collect’ service. Is this classed as a distance sale, and what are my rights?
The answer is generally no – a ‘click-and-collect’ style purchase is not usually a distance sale. This is because whilst you might have placed the order online and paid a deposit, you will still sign the contract and any finance agreements, or pay the balance on site, the same as with a ‘bricks and mortar’ purchase.

Which again suggests if the price is set and there is no further agreement to be made or signed in store it would be a distance sale. 

Having a quick look around B&Q say in their terms acceptance is upon collection for Click and Collect. 

It just seems odd Argos would send out an email saying the goods are ready to be collected and mention the CCRs, although the fact they then link to their own policy simply confuses matters but usually any ambiguity would favour the party that didn't write the terms.

Perhaps Argos not having their hose in order would mean C&C is a distance contract? Whether B&Q, who seem better at writing terms, could claim it isn't, again I don't know for the reasons stated. 
 

Olinda99

"concludes the contract with it becoming a distance sale that doesn't bind the consumer because they have the right to cancel so what's the point?"

surely a  contract can include the right to cancel without penalty as a T&C - that doesn't make it any the less a contract

the_lunatic_is_in_my_head

Olinda99 said:

"concludes the contract with it becoming a distance sale that doesn't bind the consumer because they have the right to cancel so what's the point?"

surely a  contract can include the right to cancel without penalty as a T&C - that doesn't make it any the less a contract

The law firm linked said if it was distance contract the consumer is bound and would lose their deposit but I don't see that's the case as the deposit would be refundable in the event of cancellation. 

Yes a contract could include a cancellation clause without penalty (as in by being generous and applying it where the law doesn't), I just don't see the benefit of a car dealer having one voluntarily