John Lewis refusing to hand over the item I bought.

Okell

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...

But click and collect is different from delivery at home, isn't it?

If a consumer fails to collect (or fails to arrange collection of) a click and collect contract, that surely is entirely in the consumer's hands?  It's the same as s29(3) of the CRA where the consumer commissions their own carrier not offered by the trader.

No court would penalise a trader where a consumer fails to collect goods - I hope...

Okell

eskbanker said:

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....

Yes to this ^ as well

Okell

@wandee -  first thing is that pursuing this because of a bee in your bonnet or on a point of principle is seldom a good idea, and can end up expensive and a waste of time.  Remember that nobody here can give you a definitive answer as to what the correct legal position is. 

I think you have good case against JL but other posters  - who may know more than me - might not be so sure.  (See @user1977 and the latest posts form @Grumpy_chap for example).  If it goes to court you may be as likely to lose as to win.

Regarding what you should claim for, it depends.  Remember what @Olinda99 said yesterday:

"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"

If I've understood you correctly you are saying the difference in price is or was £210, so that's the amount I think.  And I think you would be claiming it as "loss of bargain".  ie JL advertised that they would sell you something valued at £599 for only £389.  They have reneged on that and caused you that loss.

Alternatively, if you've already bought the watch from an alternative source it's the difference between that purchase price and £389.

Another alternative is that you might also be able to get the court to order JL to sell you the watch at £389. 

Personally I'd go back to JL one more time to argue your case.  If you get no satisfaction and you want to go further you would need to send them a Letter Before Claim (aka a Letter Before Action) outlining the facts, summarising why you think you have a claim against them, and telling them what remedy you want and giving them a deadline to comply (say 21 days) otherwise you will sue them.  Google Letter Before Claim and Letter Before Action for more info

If they don't comply you have to decide if you want to go to the next step and actually issue a claim.  You can do this yourself but it's not without some hassle.  To file a claim will cost you £35 for a claim of £300, but if you win you can get this cost back from JL.

Look at Money Claim Online (MCOL) user guide for claimants - GOV.UK for further info.

But don't decide on action based on what only I say.  See what other posters say.  You might decide they have abetter insight on this than I do.

Okell

@wandee -  you could also ask for advice on these two sites:

Online Stores - National Consumer Service

Consumer and Civil Rights - LegalBeagles Forum

The two questions to emphasise are (1) when does a click and collect contract become legally binding - Jl's T&Cs are unclear, and (2) is this pricing error amount to a unilateral mistake such that it entitles JL to back out of the transaction?

Money_Grabber13579

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.

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".

This is tentatively how I would interpret things I think, that dispatch happens when John Lewis lose control of the goods. With home delivery, that is when they give them to a third party delivery company. However, with click and collect, that is only when they are handed over to the customer. It’s also the most natural meaning of the word “dispatch” as anything that John Lewis have done before that would seem to be just transfers between various company premises.

Money_Grabber13579

This is of no relevance to John Lewis but I googled other retailers T&C’s and one that came up was Pandora, who are explicit that a contract for click and collect is only formed when the goods are collected. Given that most retailers follow the same generic route with regards to contract formation, it seems likely that contract formation on collection would be the intended outcome albeit some are clearly not as explicit as others.

A contract for the sale of Products ordered using the Pandora Click & Collect service will only be formed once payment has been taken for the Products; payment is taken when Products are collected in store.

I don’t know when John Lewis take payment for click and collect goods but as I say, Pandora’s T&C’s are clearly of no relevance to John Lewis but I thought it was interesting to see how it could be done if a retailer wanted to put it beyond doubt.

Grumpy_chap

Okell said:

 
I think you have good case against JL but other posters  - who may know more than me - might not be so sure.  (See @user1977 and the latest posts form @Grumpy_chap for example).  If it goes to court you may be as likely to lose as to win.

I certainly do not claim to know more than you. 

You did comment upthread:

Okell said:

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..."

I gave a version of "otherwise" that is specific to JL T's&C's.  It may not be correct.  I don't think "statement of intent" is really a common thing in consumer contracts - particularly not simple, low-value, retail purchases. 

The real issue I see is that the JL T's&C's seems explicit as to what is not Acceptance and when Acceptance & Completion occur in the case of delivery to customer.  For click-and-collect, JL seem explicit about what is not Acceptance but don't then have a clear statement as to when Acceptance does occur in this manner of purchase.

That brings us to whether the click-and-collect is really like a normal store purchase where Offer, Acceptance, Performance and Completion do all occur simultaneously.
That would not be wholly unfair. 
It would mean that the click-and-collect and card payment is really just a fully refundable deposit, JL get the item to a collection point and then the Customer can either turn up to buy (or not bother) and when the Customer turns up to buy, JL can Accept, Perform and Complete the contract (or not Accept).  If either the Customer opts for (not bother) or JL opt for (not Accept), the refundable payment gets refunded.
That is a more lay-person way to describe my previous "statement of intent" argument.  
It also offers the Customer the benefit that they don't risk a wasted journey for no stock, though non-acceptance is still a risk.


I only looked out the messaging for my last JL click-and-collect because of the comment in your earlier post about what exactly the messaging says.


I don't think we really have a definitive outcome on whether the OP has good grounds to pursue JL for whatever loss they can demonstrate was suffered.
If I understand correctly, the OP was purchasing the watch at £389.  The most pragmatic thing, and avoid all the stress with JL, might be to settle for the refund plus £20 "sorry" gift voucher that JL offered, buy the watch from AO who are listing at £405.  OP will be winning to the tune of £4.
https://ao.com/product/sml705fdaaxef-samsung-galaxy-watch-ultra-smart-watche-titanium-104164-322.aspx?

wandee

@Grumpy_chap thanks for the link to the AO offer. Unfortunately it doesn't compare to the JL offer as that offer also allowed you to claim £100 cashback from Samung. I'm guessing this is the main reason why the watch was recalled.

I also used a £100 JL gift voucher to pay for the watch, meaning that I would only have paid £189 for it in the end. I should have known it would be too good to be true.

the_lunatic_is_in_my_head

Money_Grabber13579 said:

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.

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".

This is tentatively how I would interpret things I think, that dispatch happens when John Lewis lose control of the goods. With home delivery, that is when they give them to a third party delivery company. However, with click and collect, that is only when they are handed over to the customer. It’s also the most natural meaning of the word “dispatch” as anything that John Lewis have done before that would seem to be just transfers between various company premises.

I’m not sure the use of the word dispatch would relate to someone being handed something in a shop but again the wording only relates to anything opposed to Click and Collect so with a C&C order we can forget all the JL T&C wording, as there effectively isn’t any, and simply look to contract law (whatever that may be). 

Grumpy_chap said:

Okell said:

 
I think you have good case against JL but other posters  - who may know more than me - might not be so sure.  (See @user1977 and the latest posts form @Grumpy_chap for example).  If it goes to court you may be as likely to lose as to win.

I certainly do not claim to know more than you. 

You did comment upthread:

Okell said:

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..."

I gave a version of "otherwise" that is specific to JL T's&C's.  It may not be correct.  I don't think "statement of intent" is really a common thing in consumer contracts - particularly not simple, low-value, retail purchases. 

The real issue I see is that the JL T's&C's seems explicit as to what is not Acceptance and when Acceptance & Completion occur in the case of delivery to customer.  For click-and-collect, JL seem explicit about what is not Acceptance but don't then have a clear statement as to when Acceptance does occur in this manner of purchase.

That brings us to whether the click-and-collect is really like a normal store purchase where Offer, Acceptance, Performance and Completion do all occur simultaneously.
That would not be wholly unfair. 
It would mean that the click-and-collect and card payment is really just a fully refundable deposit, JL get the item to a collection point and then the Customer can either turn up to buy (or not bother) and when the Customer turns up to buy, JL can Accept, Perform and Complete the contract (or not Accept).  If either the Customer opts for (not bother) or JL opt for (not Accept), the refundable payment gets refunded.
That is a more lay-person way to describe my previous "statement of intent" argument.  
It also offers the Customer the benefit that they don't risk a wasted journey for no stock, though non-acceptance is still a risk.


I only looked out the messaging for my last JL click-and-collect because of the comment in your earlier post about what exactly the messaging says.


I don't think we really have a definitive outcome on whether the OP has good grounds to pursue JL for whatever loss they can demonstrate was suffered.
If I understand correctly, the OP was purchasing the watch at £389.  The most pragmatic thing, and avoid all the stress with JL, might be to settle for the refund plus £20 "sorry" gift voucher that JL offered, buy the watch from AO who are listing at £405.  OP will be winning to the tune of £4.
https://ao.com/product/sml705fdaaxef-samsung-galaxy-watch-ultra-smart-watche-titanium-104164-322.aspx?

I appreciate you have used “deposit” in a colloquial manner, but, complicating matters further,  it seems C&C are yet to be defined as on-premises or distance contracts as there has been no test case.

Guidance (focused mainly on selling cars) suggests if a deposit is taken this is a distance contract as the consumer is bound to purchase where as if a reservation fee is taken it isn’t because the consumer is not bound and the “deal will be done” at the dealership in person. 

The mention of Pandora above is interesting in this respect as payment is taken upon collection.

If any retailer took payment earlier it seems there is argument that “the deal is done” and it’s a distance contract.

I know you are free to not collect a C&C and be refunded but as the argument above gives the right to cancel (in most cases) you’d have the right not to collect any way and even if the right to cancel didn’t exist and the consumer doesn’t collect as agreed the retailer can’t simply take the money and keep the goods.

Perhaps there could be argument about paying storage or whatever if in the terms but retailers would get bad PR for this + want to make C&C attractive so are very unlikely to act in such a manner even if permitted. 

In short the Pandora example may well be valid because the “deal is not done” until payment upon collection.

RefluentBeans

As others have said, this is an interesting academic debate on the forums. Don’t take that a consumer rights board agreeing with you means that you’re right, and they’re wrong. After all, we have only your side of the story - JL may have a very different story and the defences we’ve looked for in favour JL means we may have missed something.

The fact you have recently said that the AO isn’t comparable because you don’t get that £100 cash back seems to at least suggest to me that the deal may have been ‘too good to be true’ and sadly eligible for unilateral termination of the contract. 

The argument of that ‘the consumer wouldn’t know that this is clearly a pricing error’ because JL can do discounts of that amount (equating to 50%ish off?) doesn’t hold water imo. These deals can’t be held in isolation and that amount of that watch this early in its product lifecycle was clearly a pricing error. The fact that others reported on it being such a good deal only strengthens that. You’ve already done the research to show that this deal was extremely good, and a cut above the rest. JL can do that and include historic sales too. 

This will undoubtedly be an unpopular opinion, but I don’t think it’s really worth encouraging (which very few people are actively doing) you to go to court. You may well feel you have 80-90% chance of winning. I would put it at 50-60% chance of winning. The amount of time and effort to do that won’t be worth that chance.