John Lewis refusing to hand over the item I bought.

Okell

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 presume it's this one?   Asda complaint — MoneySavingExpert Forum

Okell

user1977 said:

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."

Perhaps you're right and it's unique to to the way supermarket home delivery works. 

But it still doesn't seem right to me that a contract is only formed once the trader has actually performed the contract by delivering the foods to the purchaser - that seems both perverse and contrived to me and I can't see how it could work with other online purchases.

I can't open that link to Asda's T&Cs but does it only apply to home delivery of groceries from the local store or does it apply to all online purchases? (I don't know how far Asda provide a general online distance selling service, but if they do I wonder whether this term applies to all online purchases from them and how that would work)

[Edit:  looks like those T&Cs only apply to grocery home delivery.  I see they also make it clear that until the goods are delivered the customer has no legal obligation to buy.  So that's good - it's fair and even handed.  The T&Cs of George at Asda are interesting.  See following post]

Regarding click and collect I think I'd stand by my view that a legally binding contract is formed when the seller informs the purchaser that their goods are ready for collection.  Assuming a price has been agreed a contract is formed once the trader accepts the purchaser's offer.  To me acceptance of an offer can only be made by the trader, not by anything the purchaser does.

I'd be interested to see the email from JL.  Does it say "Your watch is now ready for collection from xxx" and does it say in small print at the bottom "The above message may not be true and does not necessarily mean what it says"?

(NB  -  thinking about it, it's quite possible the email does say something like that.  It would be interesting to see what it does say and whether it mentions anything about subject to T&Cs and what those T&Cs say about click and collect...)

the_lunatic_is_in_my_head

Okell said:

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 presume it's this one?   Asda complaint — MoneySavingExpert Forum

That's the one, sorry was being lazy  

So you place your order online, get an email detailing the order, there is a period where you can amend the order after which your order (offer) is set.

They then send an email to say this is what we are going to deliver, presumably after it's been picked but before delivery (this email puts aside the issue of OOS/subs as they are confirming exactly what they are agreeing to deliver) and then the driver turns up.

You are correct that they appear to be saying acceptance, performance and completion all occur simultaneously. 

Okell said:  To me acceptance of an offer can only be made by the trader, not by anything the purchaser does.

I'd agree with this and say, from what I've read, it's a solid principle of contract law (unless there is a counter-offer in which it then falls back on the customer to accept).

Could you argue any OOS/subs is a counter offer? Even if you could what about when they have everything in your order (offer), there obviously isn't anything to counter. 

Okell said:

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

Maybe my car example wasn't the best, I just wondered if, as we seem to agree the trader needs to do something to signal acceptance, is handing over the goods an example of something that the trader does that signals such but you appear to be saying the idea of acceptance upon completion doesn't sit right. On that point if you purchase in a shop (in a traditional bricks and mortar setting) does acceptance and completion not occur simultaneously? 

Okell said:

I'd be interested to see the email from JL.  Does it say "Your watch is now ready for collection from xxx" and does it say in small print at the bottom "The above message may not be true and does not necessarily mean what it says"?

(NB  -  thinking about it, it's quite possible the email does say something like that.  It would be interesting to see what it does say and whether it mentions anything about subject to T&Cs and what those T&Cs say about click and collect...)

Don't know about JL but Asda doesn't mention anything regarding this discussion on the final email that I could see (other than a link to their T&Cs).  

Okell

Looking at the George at Asda website, their T&Cs say:

"3.2 Formation of contract. A legally binding contract between you and us will only be formed when we email you to confirm that the items you ordered have been dispatched. The contract will be formed in, and subject to the laws of, England.

3.3 Ownership. Ownership of an item will not pass to you until it has been delivered to you (either directly, or by leaving it in a safe place or with a neighbour) or where you have signed for it when using the Click & Collect option. Once an item is delivered or collected, you will be responsible for damage or loss of the item."

I think it interesting that in terms of click and collect they only refer to transfer of ownership and not to when a legally binding contract is formed.  They do not say that a contract is only formed when the customer collects the goods.

Although they don't specifically mention click and collect under "3.2 Formation of Contract" I'd argue that a click and collect contract is legally formed when they email the customer to say the goods are ready for collection.  To me that email is the equivalent of dispatching a non-click and collect purchase.

To me that makes perfect sense with regard to what I think are the basic principles of contract law.  But I might be thinking wrong!

I know George isn't Asda and I know neither George nor Asda are JL, but I think if I were the OP I'd want to push JL a bit further and argue that (1) a legally binding contract was in place, (2) that the pricing error - or whatever it was - was not a unilateral mistake and would not be obvious to any purchaser and so could not void the contract, and (3) therefore JL are in breach of contract.

Whether that's s good argument and would win in court, I don't know, but if I were the OP I'd push back at JL

wandee

Thanks for your input @Okell , I agree with your view that the contract should be binding once the item is on the way to the collection point and I have been told to come and get it. I mean, they even sent me the email with the 2 year guarantee details.

The collection email didnt mention any T&Cs though.

If I was to pursue this through small claims how much should I claim for? This may seem like small beer but I've still got a bee in my bonnet about this issue. I really dont see how companies can be allowed to waste customers' time like this and just renege on a trade on a whim.

Grumpy_chap

Okell said:

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 said:

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.

Everything you have said is entirely logical.

IANAL, but I can also postulate an alternative view which, at the very least, gives a point for discussion.
To form a contract is Offer from the Consumer and Acceptance form the Retailer.

I think there is an interpretation that in the case of JL Click & Collect, everything prior to the collection is Statement of Intent, then the Customer makes the Offer at the point of arrival to the collection counter and Acceptance is when JL hand over the goods, thus forming and concluding the contract in very swift order.

The JL terms & conditions are refreshingly short and in plain English.
https://www.johnlewis.com/customer-services/shopping-with-us/terms-and-conditions
I paraphrase the clauses under the heading "Contract creation and electronic contracting":

1. Customer clicks "confirm order"
2. Customer must have Javascript
3. JL may send an order acknowledgement e-mail.  JL state this is not Acceptance.
4. For items being delivered to the Customer, JL will send a dispatch confirmation e-mail.  JL state this is not so for click & collect.
5. JL state order Acceptance and completion of contract is dispatch of products to the Customer.
6. For most products, Customer will be charged when the order is placed.
7. Reference to items delivered to Customer direct from Supplier, rather than via JL.  Not relevant to the OP's case.

That section is followed by a section about non-acceptance of order, which includes "identification of a pricing error".

I also then looked at the FAQ for click and collect orders:
https://www.johnlewis.com/customer-services/delivery-information/click-and-collect
I was unable to collect my Click & Collect order, what happens next?

We’ll hold your order in store for 7 days, 18 days (collect from Post Office) or 10 days (other collection points), after which we’ll return it to our warehouse and refund your account. This can take up to 14 days.

Rights to cancel have to be fair.  The Customer can cancel by simply not turning up to collect the goods, even though JL have "invested" in the order at that point.  To be fair, JL would also have the right to cancel up until the goods have been collected, even though the Customer has "invested" in the order at that point.

The following could be argued:

• Customer clicks "confirm order" for click-and-collect.  
• This is a "Statement of Intent" by the Customer to enter into a contract.  "Statement of Intent" is not legally binding on either party.
• Customer demonstrated that the "Statement of Intent" is genuine and serious by providing JL with the means to take full payment of the proposed order value.
• Based on the "Statement of Intent", JL send an acknowledgement e-mail and debit the proposed order value.
• Based on the "Statement of Intent", and at their risk in anticipation of a Contract, JL arrange for the goods to be picked and shipped to the collection counter, and notify the Customer that the goods are available for collection.
• Based on the "Statement of Intent", the Customer at their risk in anticipation of a Contract travels to the collection point, incurs cost for parking, time etc.  
• The Customer arrives at the collection point and says "I'd like to collect my order".  This is the Customer making an Offer.  (The Customer could have simply done nothing, so never made the Offer once advised the goods were available and time would expire and refund processed.)
• JL either Accept the Order, thus creating a Contract, hand over the goods and Contract is Completed virtually all instantaneously.  OR, JL decline to accept the order, Contract is never formed, the monies held to demonstrate the genuine and serous intent is refunded.

The above would align with JL T's&C's fifth bullet about Acceptance and Completion is dispatch to the customer - dispatch is the handing over across the click & collect counter.


JL might be better to have two sections:
 - Contract creation and electronic contracting (website order for home delivery)
 - Contract creation and electronic contracting (website order for click-and-collect)
That would make it easier for the two different points at which Offer and Acceptance occur to be clearly stated.  I think the fact the combined sections clearly stating that "dispatch e-mail does not apply to click-and-collect" is a very string implied statement that "dispatch" is a different point for click-and-collect orders than delivered to the Customer.

I am sure the knowledgeable members of the forum will comment appropriately.
I am not sure that the average member of the public would be knowledgeable about "Statements of Intent".

Grumpy_chap

Okell said:

I'd be interested to see the email from JL.  Does it say "Your watch is now ready for collection from xxx" and does it say in small print at the bottom "The above message may not be true and does not necessarily mean what it says"?

(NB  -  thinking about it, it's quite possible the email does say something like that.  It would be interesting to see what it does say and whether it mentions anything about subject to T&Cs and what those T&Cs say about click and collect...)

I just found the messaging from the latest click-and-collect order I placed with JL.

• Order acknowledgement e-mail and link if I want to make changes.  Expected to be available from 3pm on <date> and advises I will receive advice when the order is ready for collection
• e-mail with details of the guarantee that will be effective from the date of delivery
• e-mail the order is on the way to the collection point
• e-mail order is ready to collect and I need to "check-in" to collect.  I can "check-in" online when I have arrived, or online when I am near to (15 minutes away) the store, or print the e-mail and scan a barcode to "check in" on collection.  I need to have order number, name on the order, ID to collect.  If I do not collect, the order will be refunded after 7 days (may take 14 days for credit to process).

That is two-years ago but I suspect the process is the same now.

It does seem as though the Offer is "check-in", hence Acceptance is when the goods are handed over and Completion occurs simultaneously.  If I never "check-in", the order just time-expires and it is like the order never existed which, presumably, means there was never any contract.

born_again

wandee said:

Thanks for your input @Okell , I agree with your view that the contract should be binding once the item is on the way to the collection point and I have been told to come and get it. I mean, they even sent me the email with the 2 year guarantee details.

The collection email didnt mention any T&Cs though.

If I was to pursue this through small claims how much should I claim for? This may seem like small beer but I've still got a bee in my bonnet about this issue. I really dont see how companies can be allowed to waste customers' time like this and just renege on a trade on a whim.

Interesting view. 
Yet if a retailer fails to deliver to you (in effect in your person) it is retailers responsibility to resupply.
So taking that to click & collect. Until item is in your hands. 🤷‍♀️

Can't have it both ways...

eskbanker

born_again said:

wandee said:

Thanks for your input @Okell , I agree with your view that the contract should be binding once the item is on the way to the collection point and I have been told to come and get it. I mean, they even sent me the email with the 2 year guarantee details.

The collection email didnt mention any T&Cs though.

If I was to pursue this through small claims how much should I claim for? This may seem like small beer but I've still got a bee in my bonnet about this issue. I really dont see how companies can be allowed to waste customers' time like this and just renege on a trade on a whim.

Interesting view. 
Yet if a retailer fails to deliver to you (in effect in your person) it is retailers responsibility to resupply.
So taking that to click & collect. Until item is in your hands. 🤷‍♀️

Can't have it both ways...

Surely nobody's trying to have it both ways?  The debate about exactly when a binding contract is formed is separate from any discussion about the point at which risk transfers....

Okell

@Grumpy_chap -  those are certainly good points.

I hadn't previously looked at JL's T&Cs (I'd relied on what others had said) but I've looked at them now.

Your summary seems 100% accurate as to what they say, but I think you've highlighted the problem (from JL's point of view) when you say:

"... JL might be better to have two sections:
 - Contract creation and electronic contracting (website order for home delivery)
 - Contract creation and electronic contracting (website order for click-and-collect)
That would make it easier for the two different points at which Offer and Acceptance occur to be clearly stated..."

They've created their own problem by clearly stating when acceptance occurs for home delivery contracts, but for some reason(?) they haven't made it clear when acceptance occurs for click and collect.  That looks really odd to me and I can only assume it's an oversight.  They should, as you say, clearly differentiate between when acceptance occurs for both sets of contracts.  Then it would be clear and no opportunity for misunderstanding.

Grumpy_chap said:

Okell said:

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 said:

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.

...  I think the fact the combined sections clearly stating that "dispatch e-mail does not apply to click-and-collect" is a very string implied statement that "dispatch" is a different point for click-and-collect orders than delivered to the Customer...

I think the excplicit statement that dispatch - which implies some sort of physical sending to the customer - is not acceptance for the purposes of click and collect contracts implies that something else is, and I'd argue that that something else is cofirming to the customer that the item is ready for collection.  I don't see what else that could reasonably be interpreted as meaning other than "we accept your offer".

Okell said:

I'd be interested to see the email from JL.  Does it say "Your watch is now ready for collection from xxx" and does it say in small print at the bottom "The above message may not be true and does not necessarily mean what it says"?

(NB  -  thinking about it, it's quite possible the email does say something like that.  It would be interesting to see what it does say and whether it mentions anything about subject to T&Cs and what those T&Cs say about click and collect...)

I just found the messaging from the latest click-and-collect order I placed with JL.

• Order acknowledgement e-mail and link if I want to make changes.  Expected to be available from 3pm on <date> and advises I will receive advice when the order is ready for collection
• e-mail with details of the guarantee that will be effective from the date of delivery
• e-mail the order is on the way to the collection point
• e-mail order is ready to collect and I need to "check-in" to collect.  I can "check-in" online when I have arrived, or online when I am near to (15 minutes away) the store, or print the e-mail and scan a barcode to "check in" on collection.  I need to have order number, name on the order, ID to collect.  If I do not collect, the order will be refunded after 7 days (may take 14 days for credit to process).

That is two-years ago but I suspect the process is the same now.

It does seem as though the Offer is "check-in", hence Acceptance is when the goods are handed over and Completion occurs simultaneously.  If I never "check-in", the order just time-expires and it is like the order never existed which, presumably, means there was never any contract.

I understand the point you are making, but as their own published T&Cs don't explicitly say that "checking-in" to collect constitutes the offer to buy and that handing over the goods constitutes acceptance by JL, then I don't think those messages mean anything.

JL have a selling website and they have T&Cs published on there which govern their sales.  The fact those T&Cs have holes in them is JL's problem, not a consumer's.  I think if JL try to introduce additional or new T&Cs down the line in the purchase process - and I mean T&Cs not included in their published T&Cs - I'd have thought that could validly be considered an unfair practice.

But I'm not saying you're wrong.  I don't know the answer to the OP's thread.  I can only say what seems logical to me.