SCS refusing to cancel order but didn't say at point of sale.

Okell

Alderbank said:

Okell said:

elsien said:

Okell said:

Hold on everybody!

SCS Retail T&Cs (as opposed to their website T&Cs) say:

"2.1 You will have no right to cancel the contract or to return a product once delivered, unless either the product does not conform to the contract, or we agree to the cancellation in writing."   ( Retail Terms & Conditions | ScS )

Am I missing something, or doesn't that say that the consumer can cancel an instore purchase up to delivery?

(NB - the T&Cs do contain a provision that if the consumer cancels then SCS might charge up to 25% of the purchase price to take account of losses and/or costs they may have incurred up to cancellation)

Does that not just mean you can't sent it back once you've got it unless it is faulty or presumably as a good will gesture which they agree to in writing, for whatever reason? It doesn't read to me as giving an automatic right to cancel prior to delivery,

Alderbank said:

Okell said:

Hold on everybody!

SCS Retail T&Cs (as opposed to their website T&Cs) say:

"2.1 You will have no right to cancel the contract or to return a product once delivered, unless either the product does not conform to the contract, or we agree to the cancellation in writing."   ( Retail Terms & Conditions | ScS )

Am I missing something, or doesn't that say that the consumer can cancel an instore purchase up to delivery?

(NB - the T&Cs do contain a provision that if the consumer cancels then SCS might charge up to 25% of the purchase price to take account of losses and/or costs they may have incurred up to cancellation)

It's a shorter way of saying:

"2.1(a) You will have no right to cancel the contract unless either the product does not conform to the contract, or we agree to the cancellation in writing." 

"2.1(b) You will have no right to return a product once delivered, unless either the product does not conform to the contract, or we agree to the cancellation in writing." 

@Alderbank, surely the shortest and clearest way of saying it would be:

"2.1  You have no right to cancel any order, contract or purchase you have made instore".

The issue of goods not conforming to contract is entirely separate from cancellation.

That's a fair point and I agree with you. That's why I said shorter rather than shortest.

The shortest might be 
"2.1  You have no right to cancel any contract made instore".

I think we might be drifting off topic

But you don't think that "You will have no right to cancel the contract or to return a product once delivered" means that you do have a right to cancel before it is delivered?

If it doesn't mean that then I don't understand the point of the words "once delivered" in 2.1.  They serve no purpose otherwise(?).

I'd have thought the question was bang on topic.

Okell

born_again said:

Okell said:

Hold on everybody!

SCS Retail T&Cs (as opposed to their website T&Cs) say:

"2.1 You will have no right to cancel the contract or to return a product once delivered, unless either the product does not conform to the contract, or we agree to the cancellation in writing."   ( Retail Terms & Conditions | ScS )

Am I missing something, or doesn't that say that the consumer can cancel an instore purchase up to delivery?

(NB - the T&Cs do contain a provision that if the consumer cancels then SCS might charge up to 25% of the purchase price to take account of losses and/or costs they may have incurred up to cancellation)

If you ordered your product in store, please speak with them directly about your rights to cancel or amend your order.

https://forums.moneysavingexpert.com/discussion/comment/81267643/#Comment_81267643

Although we are going round in circles here.🤷‍♀️

Are we going in circles?

The OP posted that the SCS T&Cs "do not allow cancellation of orders at all."

I'm not convinced that the OP is right, as para 2.1 of the SCS retail T&Cs clearly seems to imply that an instore order can be cancelled prior to delivery.  (It even provides for a charge to be made in respect of losses and costs incurred by SCS before such cancellation).  Online and 'phone order cancellations are dealt with separately under para 2.4

As regards "If you ordered your product in store, please speak with them directly about your rights to cancel or amend your order", what would be the point of telling a customer to do that if it wasn't possible to cancel an instore purchase in the first place?  Why would SCS advise the customer to talk to instore staff about cancellation of an instore order if it wasn't possible to cancel such an order?  Why not just clearly and straightforwardly state that you can't cancel an instore purchase?

A_Geordie

Okell said:

1.  Are you saying that for any consumer purchase - whether instore or at a distance - the consumer has an implied common law right to cancel before delivery, unless the consumer is explicitly made aware before entering into the contract that they have no right to cancel?

Generally yes, unless there are any laws or regulations that prohibit cancellation.

2.  Therefore, if the consumer wasn't told before "signing" that there was no right to cancel, the subsequent email from SCS telling him that he had no right to cancel has no effect, and he can still exercise his common law right to cancel?

Yes, unless the consumer accepted those terms or conducted themselves in a way that suggested the consumer accepted those terms. It would be treated as a variation to the contract.

The relevant excerpt of Regulation 29 of the CCRs states: 

The consumer may cancel a distance or off-premises contract at any time in the cancellation period without giving any reason ...

So, according to the CCRs the consumer has a right to terminate a distance or off-premise contract and that will be an implied term into any consumer contract, subject to any exceptions in the CCRs. Reg. 29 doesn't provide a statutory right to cancel an on-premise contract but crucially, it is also doesn't explicitly state that the consumer has no right to cancel an on-premise contract. In a nutshell, because the CCRs are silent on rights of cancellation for on-premises contracts, whether the consumer has a right to cancel on-premise contracts will depend on the terms and conditions agreed (written or verbal) between the seller and the consumer at the time the contract is concluded.

Okell said:

I think I'm having difficulty getting my head round the idea that unless a consumer is expressly told that no right to cancellation exists, then they have an implied common law right to cancel any contract.

If a contract is silent on termination rights, the courts will imply a right of termination on reasonable notice so long as it is not inconsistent with any express terms. If the OP was only told verbally at the time of signing that they had a right to amend the order within 5 days and nothing about the right to cancel the order as a whole, or any other terms, then there would be an implied right of termination.

Okell said:

I think part of the problem is separating two different situations: one where you go into a store, hand over some cash, and walk out with your purchase; and the second where you go into a store and order something for future delivery.

In the first, once you walk out with your purchase that's it, but in the second I can see that there may be a legitimate question as to why shouldn't you have the right to cancel before the order is fulfilled.

For the first scenario, the contract has been concluded and obligations performed, so in that case the only way to cancel a contract would be rescission, whereas the second scenario the contract may be concluded but not yet performed e.g. delivery/installation and an implied right of cancellation can exist. Rescission is different to termination because to rescind a contract is to unravel the contract and assumed to never exist. Termination is to end the contract and make it unenforceable past the date of termination discharging the parties from future obligations except for any terms that might survive termination. 

Generally, there is no general implied to rescind a contract except for certain situations such as misrepresentation, mistake, undue influence etc. Admittedly, my explanation and language used in my earlier post about cancellation was probably not very well explained so maybe that's where some confusion arose.

So where does that leave the OP? Well, assuming they want to insist on cancelling the contract as suggested then they would more than likely lose the deposit of £700 because under common law principles, deposits are not refundable, although part-payments are.

the_lunatic_is_in_my_head

A_Geordie said:

. Reg. 29 doesn't provide a statutory right to cancel an on-premise contract but crucially, it is also doesn't explicitly state that the consumer has no right to cancel an on-premise contract. In a nutshell, because the CCRs are silent on rights of cancellation for on-premises contracts, whether the consumer has a right to cancel on-premise contracts will depend on the terms and conditions agreed (written or verbal) between the seller and the consumer at the time the contract is concluded

Is there case law for this? 

A_Geordie

the_lunatic_is_in_my_head said:

A_Geordie said:

. Reg. 29 doesn't provide a statutory right to cancel an on-premise contract but crucially, it is also doesn't explicitly state that the consumer has no right to cancel an on-premise contract. In a nutshell, because the CCRs are silent on rights of cancellation for on-premises contracts, whether the consumer has a right to cancel on-premise contracts will depend on the terms and conditions agreed (written or verbal) between the seller and the consumer at the time the contract is concluded

Is there case law for this? 

Can you elaborate? Do you mean case law that implies a right of termination if the contract is silent, or something else?

the_lunatic_is_in_my_head

A_Geordie said:Do you mean case law that implies a right of termination if the contract is silent

Yes please  

A_Geordie

Well, a lot of the case law is based on commercial-specific agreements and I'm not specifically aware of a B2C agreement that fits the bill here, but I think there's a nice summary set out in Societe Generale, London Branch v Geys [2012] UKSC 63 

[55] ... it is important to distinguish between two different kinds of implied terms. First, there are those terms which are implied into a particular contract because, on its proper construction, the parties must have intended to include them: see Attorney General of Belize v Belize Telecom Ltd [2009] UKPC 10, [2009] 1 WLR 1988. Such terms are only implied where it is necessary to give business efficacy to the particular contract in question. Second, there are those terms which are implied into a class of contractual relationship, such as that between landlord and tenant or between employer and employee, where the parties may have left a good deal unsaid, but the courts have implied the term as a necessary incident of the relationship concerned, unless the parties have expressly excluded it: see Lister v Romford Ice & Cold Storage Co Ltd [1957] AC 555, Liverpool City Council v Irwin [1977] AC 239

The argument here is likely to more fall into the 'class' type relationship e.g. goods and services rather than the necessity for business efficacy, though I suppose an argument could be made. The overall summary is that there is plenty of case law supporting the implication of termination on reasonable notice, if you did a bit of digging around. 

Edit: A more recent case is Artcrafts International SpA v MOU Limited [2024] EWHC 1558 (KB): 

101. In relation to the implication of rights of termination specifically:
(1) Where a contract has no express provision for termination, the court may imply a power to determine it on reasonable notice: Winter Garden Theatre (London) Ltd v Millennium Productions Ltd [1948] AC 173 (HL), 203; Staffordshire AHA v South Staffordshire Waterworks Co [1978] 1 WLR 1387, 1395-6.

Grumpy_chap

A_Geordie said:

Well, a lot of the case law is based on commercial-specific agreements and I'm not specifically aware of a B2C agreement that fits the bill here, but I think there's a nice summary set out in Societe Generale, London Branch v Geys [2012] UKSC 63 

[55] ... it is important to distinguish between two different kinds of implied terms. First, there are those terms which are implied into a particular contract because, on its proper construction, the parties must have intended to include them: see Attorney General of Belize v Belize Telecom Ltd [2009] UKPC 10, [2009] 1 WLR 1988. Such terms are only implied where it is necessary to give business efficacy to the particular contract in question. Second, there are those terms which are implied into a class of contractual relationship, such as that between landlord and tenant or between employer and employee, where the parties may have left a good deal unsaid, but the courts have implied the term as a necessary incident of the relationship concerned, unless the parties have expressly excluded it: see Lister v Romford Ice & Cold Storage Co Ltd [1957] AC 555, Liverpool City Council v Irwin [1977] AC 239

The argument here is likely to more fall into the 'class' type relationship e.g. goods and services rather than the necessity for business efficacy, though I suppose an argument could be made. The overall summary is that there is plenty of case law supporting the implication of termination on reasonable notice, if you did a bit of digging around. 

Edit: A more recent case is Artcrafts International SpA v MOU Limited [2024] EWHC 1558 (KB): 

101. In relation to the implication of rights of termination specifically:
(1) Where a contract has no express provision for termination, the court may imply a power to determine it on reasonable notice: Winter Garden Theatre (London) Ltd v Millennium Productions Ltd [1948] AC 173 (HL), 203; Staffordshire AHA v South Staffordshire Waterworks Co [1978] 1 WLR 1387, 1395-6.

I am not convinced that these case law examples lead to the full cancellation and refund as suggested upthread:

A_Geordie said:

You appear to be assuming that the OP's rights are based on the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations, which are statutory consumer rights in addition to any written or verbal terms agreed between the two parties under common law contract principles. I am arguing that the OP may not have a statutory right to cancel under the CCRs but they have a right to cancel under common law, on the basis that there were no terms at the point of sale prohibiting the OP from cancelling an order and in the absence of any prohibition, it was open to the OP to cancel.



In my opinion, amendment and cancellation are not mutually exclusive. To me, an amendment of an order is to vary the existing order such that you may be purchasing more or less than what you originally agreed but not reducing the order to nothing, which would in effect be a cancellation. Cancellation would mean to void the agreement and revert to the positions prior to the contract being entered into. Just because the OP may be prohibited from amending an order after 5 days, would not prevent them from cancelling since there was no term or condition prohibiting such right at the time of the order - it was strictly limited to amendments only.

The earlier posts, as I read them, seem to suggest that the OP has a right to cancel and received a full refund (or not be liable for further payments).

The case law referenced seems to simply cover the option to terminate the contract early.

There is, so far as I understand, a big difference between cancelling being to "void the contract and put both parties in the position they were prior to the contract being entered into" and early termination being "the unilateral act by one party not to proceed with those parts of the contract not yet completed".  In this case, the one party is in breach and the second party has a remedy available - in the case of the consumer terminating the contract, the retailer would have the right to remain in the position they would be had the contract concluded as expected - so loss of profit...

A_Geordie

You're absolutely right about my previous post, and which is why I corrected myself in my response to Okell's direct questions. Strictly speaking, 'cancelling' a contract could mean voiding a contract and reverting the parties back to their original position because the words cancel, terminate, rescind are often used interchangeably to bring a contract to an end or it could mean something else, although the contractual/implied terms will usually dictate the the consequences of termination and what obligations/remedies the person terminating will have.

I can't remember why I framed it as cancelling in the sense of reverting positions but if I posted that at the time then there would have been good reason to. Having said that, I am happy to correct myself and clarify that in my opinion the OP does not have the right to rescind the contract i.e. void the contract and obtain a full refund, but they do have an arguable right to terminate the contract by giving reasonable notice as they did with the result that they would lose the £700 deposit as per my earlier post.

In this case, the one party is in breach and the second party has a remedy available - in the case of the consumer terminating the contract, the retailer would have the right to remain in the position they would be had the contract concluded as expected - so loss of profit...

Given that you are suggesting in the above statement that the OP is in breach of contract, I presume you are taking the position that the OP has no implied right of termination? Because there would be no breach of contract if the OP exercised an implied right of termination, which is essentially a termination for convenience. 

Jumblebumble

Okell said:

born_again said:

Okell said:

Hold on everybody!

SCS Retail T&Cs (as opposed to their website T&Cs) say:

"2.1 You will have no right to cancel the contract or to return a product once delivered, unless either the product does not conform to the contract, or we agree to the cancellation in writing."   ( Retail Terms & Conditions | ScS )

Am I missing something, or doesn't that say that the consumer can cancel an instore purchase up to delivery?

(NB - the T&Cs do contain a provision that if the consumer cancels then SCS might charge up to 25% of the purchase price to take account of losses and/or costs they may have incurred up to cancellation)

If you ordered your product in store, please speak with them directly about your rights to cancel or amend your order.

https://forums.moneysavingexpert.com/discussion/comment/81267643/#Comment_81267643

Although we are going round in circles here.🤷‍♀️

Are we going in circles?

The OP posted that the SCS T&Cs "do not allow cancellation of orders at all."

I'm not convinced that the OP is right, as para 2.1 of the SCS retail T&Cs clearly seems to imply that an instore order can be cancelled prior to delivery.  (It even provides for a charge to be made in respect of losses and costs incurred by SCS before such cancellation).  Online and 'phone order cancellations are dealt with separately under para 2.4

As regards "If you ordered your product in store, please speak with them directly about your rights to cancel or amend your order", what would be the point of telling a customer to do that if it wasn't possible to cancel an instore purchase in the first place?  Why would SCS advise the customer to talk to instore staff about cancellation of an instore order if it wasn't possible to cancel such an order?  Why not just clearly and straightforwardly state that you can't cancel an instore purchase?

There could be many reasons
A retailer might well decide that for a limited time they will allow cancelation in certain stores
They might be attempting to stop people wasting time with their customer services phone lines by sending them to the stores on the basis that a vacillator might not actual be bothered to go to a store in person
We are all forgetting that at  the end of the day the OP has entered into an agreement  with SCS and SCS will be  very likely to stick to their side of the bargain and SCS being a business that wants to make a profit and is not some sort of charity will not want to assist the OP in failing to keep their side of the bargain which will mean that the business loses money which is not a great way to operate.