LETTER BEFORE ACTION Help

visidigi

DefeatDsys said:

visidigi it was sent by mistake. in first place I was thinking that all my correspendance is with back marcket.

No, it wasn't a mistake. You used a free post envelope they sent you for the trade in, not for the repair. They didn't advise you they would send an envelope for the repair right?

That's the crux of the problem you face - you ultimately sent a device to the wrong address, to someone not expecting it. And they got a broken device which had limited value.

At the point you sent the item in for trade in I suspect you agreed to be bound by the terms, which included accepting the price quoted.

cmthephoenix

You're only really answering some questions.
You seem to have accepted now that it was you that sent the phone to the wrong place and in a trade in bag with the trade in reference number, rather than them transferring it to the wrong place as your opening post stated.
The relevant thing now is what terms you were sent for the trade in.

A_Geordie

the_lunatic_is_in_my_head said:

Although BM appear to be a French company they state the terms are governed by English law and you simply need to argue that acceptance can not occur through silence as per Felthouse v Bindley [1862] EWHC CP J35 and as such a contract has not been formed for the sale of the phone.

If they claim they can't return your phone to you (because they've sold it or whatever) @A_Geordie might have something to say on this and they might have more insight on the above case law. 

I would keep this simple, you put in a request to trade in an iPhone, sent a Galaxy in error, the counter offer was never accepted, the Galaxy should be returned to you (possible at your cost) or they cover the cost of replacing it like for like if they can't return it. 

I am struggling to grasp the issue. 

Acceptance by silence is not possible because acceptance requires a positive action, whereas silence obviously does not meet that requirement and so implied acceptance will inevitably fail. However, express terms trump implied terms, so if there is an existing term in the contract that covers a particular situation, the court will not imply a term. 

If the OP went through the Samsung trade-in site and the website did not refer to any trade-in terms relating to BlackMarket, I can't see how the OP agreed to those terms. 

That all said, isn't this just a simple case of basic contract law principles, arguing that a contract never existed because the OP did not intend to trade in the Samsung galaxy phone and therefore there was never an intention to create a legal relations?

cmthephoenix

That all said, isn't this just a simple case of basic contract law principles, arguing that a contract never existed because the OP did not intend to trade in the Samsung galaxy phone and therefore there was never an intention to create a legal relations?

I may be wrong but I don't think the OP did anything to do with Samsung. They bought a phone from backmarket (which appears to be a marketplace for buying and selling refurbished tech) and then separately got a quote for sending in an old phone to backmarket. The end companies they bought the phone from and sold/traded in their old phone to could well have been entirely different.

If it's anything like trade ins I've participated in at the point of sending off your trade in you agree to their terms that state if the device you send is in a different condition or different brand/model to what you have said you are sending then they will send you a new amount for the trade in which you have to reject within x days otherwise it is deemed accepted. So I guess the question is, is this term along with its silent acceptance valid - there are certainly plenty of places that do it.

visidigi

A_Geordie said:

the_lunatic_is_in_my_head said:

Although BM appear to be a French company they state the terms are governed by English law and you simply need to argue that acceptance can not occur through silence as per Felthouse v Bindley [1862] EWHC CP J35 and as such a contract has not been formed for the sale of the phone.

If they claim they can't return your phone to you (because they've sold it or whatever) @A_Geordie might have something to say on this and they might have more insight on the above case law. 

I would keep this simple, you put in a request to trade in an iPhone, sent a Galaxy in error, the counter offer was never accepted, the Galaxy should be returned to you (possible at your cost) or they cover the cost of replacing it like for like if they can't return it. 

I am struggling to grasp the issue. 

Acceptance by silence is not possible because acceptance requires a positive action, whereas silence obviously does not meet that requirement and so implied acceptance will inevitably fail. However, express terms trump implied terms, so if there is an existing term in the contract that covers a particular situation, the court will not imply a term. 

If the OP went through the Samsung trade-in site and the website did not refer to any trade-in terms relating to BlackMarket, I can't see how the OP agreed to those terms. 

That all said, isn't this just a simple case of basic contract law principles, arguing that a contract never existed because the OP did not intend to trade in the Samsung galaxy phone and therefore there was never an intention to create a legal relations?

From what I can work out the offer to trade a phone has been created by the request to value and the envelope with the reference to that offer has been created and the OP has used that offer to instigate a contract of sale by using the freepost envelope provided (which must have had a unique code for the company to know which order it related to).

It seems the trade in company does not match that reference to an actual device to be traded (model etc). and instead purely matches the envelope to the transaction of trading in. That may go some way to explaining how the OP ended up in this situation.

What doesn't help the OP's case here is they were notified they would be paid £25. They then didn't read that fully, and thought ignoring it would make it not happen.

What I want to ask the OP is this:

Does the offer email of £25 CLEARLY state that the value offered is for the Samsung device or does it reference an iPhone which was not sent?

the_lunatic_is_in_my_head

A_Geordie said:

If the OP went through the Samsung trade-in site and the website did not refer to any trade-in terms relating to BlackMarket, I can't see how the OP agreed to those terms. 

The email OP quoted linked to Black Market so I assumed they traded in with Samsung via Black Market.

A_Geordie said:

Acceptance by silence is not possible because acceptance requires a positive action, whereas silence obviously does not meet that requirement and so implied acceptance will inevitably fail. However, express terms trump implied terms, so if there is an existing term in the contract that covers a particular situation, the court will not imply a term. 

@A_Geordie Sorry just to clarify, the customer service response from Black Market says:

 the seller sent you a counter-offer on 23/07/2025. I would like to remind you that you were informed that if we did not receive a response from you before 08/08/2025, the counter-offer would be automatically accepted

So, in general, can such a term override acceptance not occurring through silence? 

I've pasted the terms below, it doesn't actually say anything about auto accepting 2nd offers, just that the customer has 14 days to accept or reject so second question if yes to the above, are the actual terms letting them down by failing to clarify?

Black Market Terms:

Upon receipt of the product, Refurbisher will inspect the product to verify that it conforms with the descriptions and declarations made by Individual as set forth in article 5 above. 

6.3.1 Refurbisher has two (2) business days to pay the offer amount to the Individual’s bank account via BACK MARKET’s payment services provider, provided that the Individual has complied with all requirements set forth in article 6.2.1 (A, D and E). The Individual acknowledges that the availability of the funds depends on bank processing periods. 

6.3.2 If the product received by the Refurbisher does not comply with the representations made by the Individual, the first offer is voided, and the following process shall apply: 

● Refurbisher has two (2) business days to make a second Trade-in offer via their account. 

● The Individual then has fourteen (14) business days to accept or reject the second Trade-in offer on their account.

○ If the second offer is accepted by the Individual, the sale becomes a firm sale and the Refurbisher must pay the offer price promised in the second offer, provided that the Individual has made their banking information available. 

○ If the Individual rejects the second offer, there is no contract of sale and Refurbisher shall send the product back to the Individual within two (2) business days, with no cost for Individual. 

6.3.3 In the exceptional cases where the Individual sends a product that is not eligible under article 4, or if the Refurbisher received a wrong product, the Refurbisher may give notice that the product cannot be purchased through the Trade-in service and that the first offer is therefore void. In that case, if the Individual wants the Refurbisher to return their product, the Individual undertakes to pay for a tracked shipment within five (5) calendar days after notice is given to the Individual via the Marketplace that their product cannot be purchased. 

A_Geordie said:

That all said, isn't this just a simple case of basic contract law principles, arguing that a contract never existed because the OP did not intend to trade in the Samsung galaxy phone and therefore there was never an intention to create a legal relations?

I'm not sure, OP did intend to trade in a phone but they've sent the wrong one (basically that is it, everything else is filler) so OP did intend to create legal relations just for something else.

The terms above do mention sending the wrong product but say what the Refurbisher may do rather than must do?

cmthephoenix

Not sure Samsung themselves would want to trade via Backmarket but who knows.
I just did a trial purchase and when I selected the ZFold phone it told me the supplier for that particular transaction was
Proudly refurbished by E-Trade Tech LTD (United

When I select trade in it explicitly said on screen

"One last thing...

Your device will be checked once the refurbisher receives it. If the information you've provided is inaccurate, the refurbisher may send you a new offer. In any case, honesty is the best policy. We do not accept rooted, stolen, or counterfeit devices, and devices that have been blocked by a network."

Obviously that's not durable and I would imagine you get emailed terms if you do go ahead

DefeatDsys

Hi all,
I have dowloaded the trade in T&C and cant see any that in case of not accepting witinin 14 days that is actually consedered as accepting. here is to T%C in pdf format.

would u be able to give a second eye. i have tried to sale iphone that how i got it.

tx

UK_Buyback_T_C_2023.pdf

DefeatDsys

I have alos look at the address where the phone was sent to: 7 Crown Gate, Wyncolls Road, Colchester, Essex, CO4 9HZ, thiis is linked to  idooka.com is operated by XS Items Ltd.

All Best 

A_Geordie

the_lunatic_is_in_my_head said:

A_Geordie said:

Acceptance by silence is not possible because acceptance requires a positive action, whereas silence obviously does not meet that requirement and so implied acceptance will inevitably fail. However, express terms trump implied terms, so if there is an existing term in the contract that covers a particular situation, the court will not imply a term. 

@A_Geordie Sorry just to clarify, the customer service response from Black Market says:

 the seller sent you a counter-offer on 23/07/2025. I would like to remind you that you were informed that if we did not receive a response from you before 08/08/2025, the counter-offer would be automatically accepted

So, in general, can such a term override acceptance not occurring through silence? 

Generally speaking, yes. The rule on silence by acceptance usually applies where there's no written terms, or if there are written terms, those terms do not cover the specific topic in question around acceptance. Black Market have covered offer and acceptance of trade-in goods, and that displaces the non-acceptance by silence rule because the court will not imply a term where it conflicts with an existing express term. There may be a question as to whether the term itself is fair and if it was sufficiently brought to the seller's attention, but outside of that, it appears to be a valid clause. 

the_lunatic_is_in_my_head said:

I've pasted the terms below, it doesn't actually say anything about auto accepting 2nd offers, just that the customer has 14 days to accept or reject so second question if yes to the above, are the actual terms letting them down by failing to clarify?

The terms describe scenarios of acceptance or rejection but not silence and in the absence of a specific term that covers the scenario where the seller is silent, the non-acceptance by silence rule could be relied on. Equally, one might argue that the contra proferentem rule comes into play i.e. where the terms are unclear or ambiguous, the contract is construed against the drafter of the contract.

I'm not sure, OP did intend to trade in a phone but they've sent the wrong one (basically that is it, everything else is filler) so OP did intend to create legal relations just for something else.

But that's the whole point. The OP intended to trade in the iPhone and not the Samsung phone, so how can there be a meeting of minds to contract on the basis of trading in the Samsung phone if there was no intention to contract with BM in the first place? There can't be a legally binding contract without that intention. It's been said many a time by the courts, but the Supreme Court summed up the principles in RTS Flexible Systems Limited v Molkerei Alois Müller Gmbh & Company KG: 

The general principles are not in doubt. Whether there is a binding contract between the parties and, if so, upon what terms depends upon what they have agreed. It depends not upon their subjective state of mind, but upon a consideration of what was communicated between them by words or conduct, and whether that leads objectively to a conclusion that they intended to create legal relations and had agreed upon all the terms which they regarded or the law requires as essential for the formation of legally binding relations.

The OP communicated to BM that they were interest in trading in the iPhone and that was the basis upon sending out the trade-in envelope. If BM failed to record that on their end, well that's their problem and shows a gap in their procedures which they should probably plug to avoid a situation like this. Otherwise, BM takes the risk that situations such as the OP's arise, they will have to defend themselves and potentially be on the losing side of a claim under the tort of conversion. 

the_lunatic_is_in_my_head said:

The terms above do mention sending the wrong product but say what the Refurbisher may do rather than must do?

I don't think those terms matter if it is found that there was no intention to create legal relations, since the terms will only become binding upon formation of a contract once all criteria have been met.