John Lewis refusing to hand over the item I bought.

mybestattempt

Just my take on this, but I think its as straightforward as JL have failed to perform a contract they had with the  OP to provide him with the watch at a specific location.

For whatever reason JL decided not to go ahead and thus are in breach of contract and the remedy is that the OP should be refunded whatever payment he made to JL.

Olinda99

"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."

No this is definitely NOT what I am saying

What I am saying is if, at the time of placing the order with John Lewis, the next cheapest price to buy was say 500 pounds and now that has gone up to 510 pounds then the financial loss is 10 pounds because if John Lewis hadn't misled them they could have bought the watch for 500 but now will have to pay 510 they can thus claim £10.

Remember it is financial loss you can claim. John Lewis cancelling the order has not caused you any financial loss unless the price of the watch has gone up in the meantime

mybestattempt

Olinda99 said:

"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."

No this is definitely NOT what I am saying

What I am saying is if, at the time of placing the order with John Lewis, the next cheapest price to buy was say 500 pounds and now that has gone up to 510 pounds then the financial loss is 10 pounds because if John Lewis hadn't misled them they could have bought the watch for 500 but now will have to pay 510 they can thus claim £10.

Remember it is financial loss you can claim. John Lewis cancelling the order has not caused you any financial loss unless the price of the watch has gone up in the meantime

Can you quote some legislation and/or caselaw that backs up your contention that a higher price with another retailer is relevant at all?

You can only sue for actual (not hypothetical) monetary  losses, in this case the payment to JL nothing more.

A_Geordie

mybestattempt said:

You can only sue for actual (not hypothetical) monetary  losses, in this case the payment to JL nothing more.

This isn't true. Loss of chance/opportunity is typically based on hypotheticals, which is a different measure of damages to loss of bargain. Loss of chance may apply here in relation to the OP getting £100 cashback, if this was offered by Samsung directly rather than JL. 

mybestattempt said:

Can you quote some legislation and/or caselaw that backs up your contention that a higher price with another retailer is relevant at all?

It sounds as if Olinda99 is alluding to damages based on the difference in market value, which is one valid method of assessing damages. The general rule will be that the assessment of damages is calculated by the date of the breach (but may be departed to allow for the compensatory rule where it is just to do so). Where there is an available market, it would be reasonable for the claimant to look to that market as a measure of their loss, which would tie into the rule that a claimant should mitigate their loss.

Grumpy_chap

wandee said:

@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 refund is normally made back to you in the format that the original payment was made, so £100 JL gift voucher plus £289 to your credit card (or cash or however you paid the remaining cost)

I assume the £100 gift voucher was a genuine voucher that had been purchased and not a promotional offer voucher.  The former will be refunded back to you as a £100 JL Gift Voucher, where the latter may have had terms that mean the refund is not possible.

mybestattempt said:

Just my take on this, but I think its as straightforward as JL have failed to perform a contract they had with the  OP to provide him with the watch at a specific location.

For whatever reason JL decided not to go ahead and thus are in breach of contract and the remedy is that the OP should be refunded whatever payment he made to JL.

It is not clear as to whether a contract ever existed.

As for remedy for JL being in breach, the OP has a full refund plus £20 goodwill gift voucher so that (slightly more than) covers the remedy you describe.

If that is the case - that a retailer can cancel a contract (up until handing over the goods) and simply refund whatever was paid - then, for the contract to be fair, the customer would also be able to cancel (up until the same point) which would make it all rather moot as to whether there is a contract or not if either party can just walk away.

The reason behind the more protracted discussions are if no contract existed, no-one can be in breach, but either party can simply walk away.  If a contract existed, but JL were in breach, would the OP be able to claim "loss of bargain"?

I am not an expert on "loss of bargain" but @olinda99 seems to have a fair interpretation, which I understand as follows:

• Watch MRP £600
• Everyone has for £550
• JL have for £390
• JL cancel contract under "unilateral mistake"
• By the time the OP is refunded the £390, the price elsewhere has increased to £560
• The "loss of bargain" is £10

That does make sense as, if JL did not have the "unilateral mistake" at £390 which gives them grounds to cancel the contract, the OP would have had to pay £550 and now has to pay £560 so the loss is £10.  If the "loss of bargain" is related to the difference between £550 (or £560) and the error price £390, JL might just as well let the contract conclude at the £390.

user1977

Grumpy_chap said:

wandee said:

@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.

mybestattempt said:

Just my take on this, but I think its as straightforward as JL have failed to perform a contract they had with the  OP to provide him with the watch at a specific location.

For whatever reason JL decided not to go ahead and thus are in breach of contract and the remedy is that the OP should be refunded whatever payment he made to JL.

• Everyone has for £550
• JL have for £390

At some point though, surely the difference between those figures has to be large enough to make a unilateral error more plausible? The customer can't really argue that they assumed £390 is a reasonable price if it's not available for anywhere near that elsewhere.

A_Geordie

@Grumpy_chap, your understanding would be incorrect. The 'loss of bargain' is to put the injured party in the position had the contract been performed. So the OP contracts for £390 and at the time of the breach, the market price would be £560, then the loss would be £170 which is putting the OP in the same position had the contract originally been performed.

You are right that JL might as well let the contract conclude at £390, but it is likely cost effective to handle the minority of people who choose to sue JL and/or take the risk and argue a unilateral mistake than having to suffer a margin of profits by allowing all contracts to conclude at that price.

I am inclined to agree that dropping the price to £390 based on the market selling around £550 doesn't strike me as immediately being a unilateral mistake. The onus will be on JL to prove it should have been obvious to the buyer it was a mistake but given the time of year and that sales start of goods start to get earlier each year, I think JL might have difficulty arguing their case.

Seems to me the OP has a reasonable prospect of winning their case and on balance, JL will have to consider whether it's worth defending all the way to a court hearing which, if they lost, could be a platform for others to sue JL if the OP decided to take it to the media after becoming aware of a successful case. If I were JL's internal legal advisor, I would probably just advise to pay up subject to a confidentiality clause being inserted into the settlement agreement, though the OP is free to reject. 

MattMattMattUK

This thread is full of differing opinions, so I will throw mine into the mix as well. I think if you tried to take them to court you would lose. 

Grumpy_chap

user1977 said:

Grumpy_chap said:

• Everyone has for £550
• JL have for £390

At some point though, surely the difference between those figures has to be large enough to make a unilateral error more plausible? The customer can't really argue that they assumed £390 is a reasonable price if it's not available for anywhere near that elsewhere.

This has been discussed upthread:

Grumpy_chap said:

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).

Okell said:

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.

A_Geordie said:

@Grumpy_chap, your understanding would be incorrect. The 'loss of bargain' is to put the injured party in the position had the contract been performed. So the OP contracts for £390 and at the time of the breach, the market price would be £560, then the loss would be £170 which is putting the OP in the same position had the contract originally been performed.

Obviously, "loss of bargain" requires that there has to be a contract.  It is not clear that a contract was formed in the OP's case.
If no contract was formed, JL appear to be stating they never accepted the OP's offer. Reason for not accepting is pricing error.
If a contract was formed, JL appear to stating "unilateral mistake"  If "loss of bargain" was as you have described, it would conflict with "unilateral mistake" as a reason to rescind the contract.

A_Geordie

Grumpy_chap said:

Obviously, "loss of bargain" requires that there has to be a contract.  It is not clear that a contract was formed in the OP's case.
If no contract was formed, JL appear to be stating they never accepted the OP's offer. Reason for not accepting is pricing error.
If a contract was formed, JL appear to stating "unilateral mistake"  If "loss of bargain" was as you have described, it would conflict with "unilateral mistake" as a reason to rescind the contract.

Of course, a loss of bargain cannot exist without a valid contract. I was merely pointing out that your worked example would be incorrect for assessing the loss of bargain and the correct loss was likely to be the difference in the price under the contract and the current market value.

As has already been hashed out in numerous posts previously, there are arguments on both sides as to whether or not a contract has been formed, but the T&Cs are poor in relation to click and collect. Just because there may have been a pricing error, does not mean a contract was never formed (that's just JL's opinion). So the question is when did acceptance take place, could that be when the OP got a message to say ready to collect, rather than on the actual handover? Equally, if the gift card was charged at any point before collection or notification collection, acceptance could have taken place at an earlier date - that's what the court needs to decide.

Just wanted to point out that a unilateral mistake means the contract is void in that there was never a contract which existed in the first place because the usual elements for formation of the contract were not there. Rescission applies where there is a valid contract but circumstances allows one party to take back that decision or to unwind the contract, like a voidable contract. 

I'm not sure I understand your explanation regarding the conflict between loss of bargain and unilateral mistake. If there was a valid agreement and no mistake, then there's a breach of contract by JL and then the damages for loss of bargain would be based on what I've suggested, not the £10 since the OP would be incurring additional expense of £160 to put them back in the position had the contract been properly performed.