John Lewis refusing to hand over the item I bought.

Grumpy_chap

This looks like a quite complicated set if inter-related possibilities.

If the supplier has made a "unilateral mistake" they can cancel the order - that usually means the price has to be too good to believe.
I would not say that £390 for a £600 watch is necessarily an obvious error (£3.90 obviously would be).

However, it seems as though an online retailer listed the watch at an error price of £390 and then cancelled the orders against that - presumably claiming "unilateral mistake".
It is quite possible with automated dynamic pricing and price tracking that the £390 was only listed at JL because the system had tracked the (now cancelled) error price at an online retailer
Would that constitute the "unilateral mistake"?

[I knew someone once who worked for a retailer "A" selling printers and they were nearly bankrupted by an automated price track causing their sales to fall off the cliff.  The reason was, they wanted to be competitive but not the cheapest price available, so set the price to track various other retailers, including "B" with an algorithm to match "B" plus £1.  Unbeknownst to "A", retailer "B" had set an algorithm to match "A" minus 1 pence.  The result over a long weekend was the price spiralling upwards in a never ending loop.]

If this was not a "unilateral mistake", we then come to when a contract was formed.  For delivery direct to the customer, the JL website is clear this is when the order is dispatched.  It is not so clear that this point of contract formation applies for click-and-collect.  I think the JL terms could be interpreted that "dispatch" to the customer is when the order is collected over the counter.  In this case, that collection over the counter has not happened.  It is possible there was never a fully formed contract.

user1977

I would think it reasonable to interpret that "dispatch" hasn't happened if the item is still in the hands of John Lewis.

Aylesbury_Duck

user1977 said:

I would think it reasonable to interpret that "dispatch" hasn't happened if the item is still in the hands of John Lewis.

I agree, and even if that isn't the legal position, what can OP practically do to force JL to sell him the watch at the price it was briefly advertised?  Court?

Olinda99

IF John Lewis had broken a contract (and that is a big if) then the remedy for the OP would be to sue them for their financial loss which would be the difference between the price they could have got the watch elsewhere at the time they placed order with JL and what they would have to pay now ie the watch would have had to have gone up in price

the_lunatic_is_in_my_head

user1977 said:

I would think it reasonable to interpret that "dispatch" hasn't happened if the item is still in the hands of John Lewis.

Those terms relate to orders opposed to Click & collect so bear no relevance to the OP. 

Grumpy_chap said:

This looks like a quite complicated set if inter-related possibilities.

If the supplier has made a "unilateral mistake" they can cancel the order - that usually means the price has to be too good to believe.
I would not say that £390 for a £600 watch is necessarily an obvious error (£3.90 obviously would be).

However, it seems as though an online retailer listed the watch at an error price of £390 and then cancelled the orders against that - presumably claiming "unilateral mistake".
It is quite possible with automated dynamic pricing and price tracking that the £390 was only listed at JL because the system had tracked the (now cancelled) error price at an online retailer
Would that constitute the "unilateral mistake"?

In most cases acceptance is upon dispatch so the website is an invitation to treat, the order creation by the customer is an offer, dispatch is acceptance. 

If before dispatch the retailer decides not to accept the offer there has been no contract, the retailer may say it's a price mistake, they may simply say nothing at all, acceptance can not be formed by silence or inaction, it requires a communication, whether through words or action. 

If a retailer said "sorry it was priced at £100 but should be £1000" this is a counter offer and now requires the customer to make a communication to signal acceptance. 

The use of auto pricing doesn't really have any bearing and whether something is a unilateral mistake is ultimately the option of a court so if one retailer made a pricing error, customer sues and loses, a different retailer then makes the exact same mistake it is more likely than not a court would come to the same conclusion a second time, although not guaranteed unless decided by a higher court, which it is very unlikely to go that far.

Ultimately it's a disagreement between two parties and whilst anyone can form an opinion, it's the opinion of a court that matters, but as you say obviously had it been £3.90 an opinion of a unilateral mistake would very likely be a valid one. 

Grumpy_chap said:

If this was not a "unilateral mistake", we then come to when a contract was formed.  For delivery direct to the customer, the JL website is clear this is when the order is dispatched.  It is not so clear that this point of contract formation applies for click-and-collect.  I think the JL terms could be interpreted that "dispatch" to the customer is when the order is collected over the counter.  In this case, that collection over the counter has not happened.  It is possible there was never a fully formed contract.

As above I don't think that term applies here but just for a second worth noting

https://www.legislation.gov.uk/ukpga/2015/15/section/69

Contract terms that may have different meanings

(1)If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.

  
So in the absence of anything further on the JL website I believe we look to contract law, where it is stated how acceptance is formed that appears to be easy, even if it says the retailer must stand on one leg and squawk like a bird so be it, but I'm not sure what communication (including actions) in the C&C process would constitute acceptance.

@Okell might have some thoughts. 

Okell

I'm inclined to agree with @Grumpy_chap's view that this is not a unilateral mistake by JL.

ie I don't think an advertised price of £390 for a £600 item would be understood by any reasonable purchaser to be an obvious pricing error.  That level of discount seems entirely possible and reasonable to me and I don't think it would allow JL to back out of the deal on the grounds of mistake - provided a contract had already been formed.

Regarding acceptance I think that the correct view is that JL accept the offer to buy from the OP at the point they send him an email confirming that the watch is ready for collection.  In the case of click and collect contracts it's the sending of that email to the consumer that seems to me to be analagous to the dispatch of non-click and collect distance contracts in JL's T&Cs.  I don't think the fact the watch remains in JL's hands pending collection by the OP is relevant after they've sent the "your watch is ready for colection" email.  If that doesn't amount to acceptance I'm not sure what else would.

Okell

Further to my previous post there were two threads earlier this year which have some relevance to this thread.  Admittedly they are about whether a click and collect contract is a distance contract for cancellation purposes, but there is also some discussion on the linked to pages about what might constitute acceptance by the trader.  (@the_lunatic_is_in_my_head will remember both threads I'm sure).

I need help getting a refund from Argos with PC - Page 10 — MoneySavingExpert Forum

Argos, click and collect. Distance sale or not? - Page 3 — MoneySavingExpert Forum


These were my views in those threads on when acceptance takes place:

"... An offer in a contrcat like this must be made by the consumer.  Similarly, the only party that can accept that offer must be the trader.  I would suggetst that in cases like this, Argos are accepting the offer when they make the goods available for collection.  Once that is done, the contract is concluded for the purposes of the cancellation regulations*.  Collection by the consumer is after the fact of the contract being concluded.  Or at least that's certainly what I'd be arguing in a court claim and I think a small claims court would be sympathetic to a consumer arguing that point against a large retailer like argos ..."

And:

"... 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..."

Seems legally logical to me that just as an offer must come from the consumer and that acceptance must come from the trader, then acceptance must be something done by the trader and not by the consumer.  So acceptance takes place and a contract is formed when JL tell the consumer that the watch is available for collection.  Nothing the consumer does afterwards can change that.

Or at least that's my view, but I'm not a lawyer...

@wandee -  if I were you I would persevere with JL.  Your argument would be  (1)that a contract was formed when JL confirmed to you by email that the watch was ready for collection, and (2) that their pricing error was not a unilateral mistake as you were in no position to know that the advertised price was unreasonably discounted and was obviously wrong.  (3) therefore JL are in breach of contract.

I've no doubt JL will reject the argument.  You'd then have to decide if it were worth the hassle of sending them a Letter Before Claim and suing them.  None of us here really knows the answer to your question.  If you sue them and it ends up in court you might win... or you might lose...

It comes down to how much time and effort you want to put into something that might end up showing no return.

the_lunatic_is_in_my_head

That all makes sense to me @Okell but, without waffling too much, can voluntary transfer of possession be an action that the trader makes which signals acceptance?

If you advertise you car for £1000, I turn up and say £900? You can accept by saying "yes", or by nodding your head, or by shaking my hand but if you simply handed me the keys would that be acceptance? 

We had the Asda thread the other day and they say acceptance is upon delivery (voluntary transfer of possession), if that is valid is there any difference between an Asda driver handing you some eggs and a JL staff member handing you a watch? 

Okell

the_lunatic_is_in_my_head said:

That all makes sense to me @Okell but, without waffling too much, can voluntary transfer of possession be an action that the trader makes which signals acceptance?

If you advertise you car for £1000, I turn up and say £900? You can accept by saying "yes", or by nodding your head, or by shaking my hand but if you simply handed me the keys would that be acceptance? ...

The straightforward answer to that hypothetical(?) question is I don't know.

But i think the position here is not the same as the car example.  Simply handing the keys over without saying anything or without making any gesture seems very different to me from contacting the OP and confirming to him that his watch is ready for collection.  Bearing in mind that I think it's reasonable for a purchaser to understand whether or not a trader has accepted their offer, I don't know what other interpretation a reasonable purchaser is meant to put on being told that his purchase is ready for collection other than that the trader has accepted the purchaser's offer to buy.  More so when even the trader's own T&Cs seem to be silent on when a click and collect contract offer is accepted(?).

the_lunatic_is_in_my_head said:

... We had the Asda thread the other day and they say acceptance is upon delivery (voluntary transfer of possession), if that is valid is there any difference between an Asda driver handing you some eggs and a JL staff member handing you a watch? 

Don't think I've seen that thread...

Is that grocery home delivery and Asda are saying a contract is only formed when they actually hand the goods over to the consumer at their home?

I'm not familiar with home delivery (I'm not that familiar with internet purchases generally!) or with the details of that particular thread, but don't Asda send the purchaser some sort of confirmation of the delivery?  Are Asda arguing that even if they've sent confirmation that they are still under no contractual obligation until they hand over to the purchaser the goods that are the subject of the contract?

That sounds perverse to me and to defeat the purpose of the contract.

If that worked what would stop delivery companies like Evri from saying that your delivery contract with them was only formed once they'd successfully delivered your goods to the recipient?

Isn't that putting the cart before the horse?  You'd be arguing that a contract had been formed only upon completion of the contract.  That simply doesn't sound right... 

user1977

Okell said:

the_lunatic_is_in_my_head said:

That all makes sense to me @Okell but, without waffling too much, can voluntary transfer of possession be an action that the trader makes which signals acceptance?

If you advertise you car for £1000, I turn up and say £900? You can accept by saying "yes", or by nodding your head, or by shaking my hand but if you simply handed me the keys would that be acceptance? ...

the_lunatic_is_in_my_head said:

... We had the Asda thread the other day and they say acceptance is upon delivery (voluntary transfer of possession), if that is valid is there any difference between an Asda driver handing you some eggs and a JL staff member handing you a watch? 

I'm not familiar with home delivery (I'm not that familiar with internet purchases generally!) or with the details of that particular thread, but don't Asda send the purchaser some sort of confirmation of the delivery?  Are Asda arguing that even if they've sent confirmation that they are still under no contractual obligation until they hand over to the purchaser the goods that are the subject of the contract?

That sounds perverse to me and to defeat the purpose of the contract.

I suppose the complication with supermarket deliveries is that your order is subject to them picking the items off the shelf (and you accepting/rejecting any substitutions they make, which might only occur once they turn up).

In fact that's what Asda's terms suggest:

"A legally binding contract with You will only arise once We have completed Delivery of the goods to You or You have (or the person you have requested to Collect on your behalf has) completed Collection of the goods from Us."