LETTER BEFORE ACTION Help

PHK

This is all well and good but it doesn't really help the OP. 

The answer to the OP's question is, DON'T send that letter and you need to take actual legal advice about the situation. 

Ergates

DefeatDsys said:

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

Read section 7.3

Ergates

the_lunatic_is_in_my_head said:

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?

Keep reading - specifically read section 7.3:

7.3 If the Individual has complied with the requirements in article 6.2.1 but fails to respond to the Refurbisher’s second offer, BACK MARKET will send reminders three (3) times over a period of fourteen (14) calendar days. Once the reminders have been sent and the period is completed, if the Individual still has not responded, they will be deemed as having implicitly accepted the second offer made by the Refurbisher. The Refurbisher will pay the amount of the second offer to the Individual.

Ergates

A_Geordie said:
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: 

How would that work in a situation where the contract includes a degree of flexibility - in simplified terms:  "Whatever you send to us in this envelope we will consider as trade in" - but then (as in this case) the other party accidentally puts the wrong phone in the envelope.  On one hand, there was no intention for the OP to trade in the phone.   But on the other hand, how was BM to know that?  A phone was sent to them in the trade-in envelope - which implies and intent to trade in.  The phone that was sent did "not comply with the representations made by the Individual", but the T&Cs cater for that.

cmthephoenix

How would that work in a situation where the contract includes a degree of flexibility - in simplified terms:  "Whatever you send to us in this envelope we will consider as trade in" - but then (as in this case) the other party accidentally puts the wrong phone in the envelope.  On one hand, there was no intention for the OP to trade in the phone.   But on the other hand, how was BM to know that?  A phone was sent to them in the trade-in envelope - which implies and intent to trade in.  The phone that was sent did "not comply with the representations made by the Individual", but the T&Cs cater for that.

Or more specifically you are trading in a phone and if you mis- describe it either in terms of brand, model or condition we may send you a revised offer. Whilst mis-description of brand and model may be relatively rare certainly there will be many cases where the phone condition is assessed differently than was described.

the_lunatic_is_in_my_head

Ergates said:

Keep reading - specifically read section 7.3:

7.3 If the Individual has complied with the requirements in article 6.2.1 but fails to respond to the Refurbisher’s second offer, BACK MARKET will send reminders three (3) times over a period of fourteen (14) calendar days. Once the reminders have been sent and the period is completed, if the Individual still has not responded, they will be deemed as having implicitly accepted the second offer made by the Refurbisher. The Refurbisher will pay the amount of the second offer to the Individual.

Thanks @Ergates  

7.1 says

7.1 If the Individual refuses or abstains from providing their complete information complying with the requirements in article 6.2.1 A, D, F and G, there is no contract of sale and no Trade-in operation shall occur. 

6.2.1:

A. Provide their birthday, nationality, physical address and telephone number,

D (not present)

F. Send the product to the Refurbisher within twenty-one (21) calendar days by securely packaging the product, printing out and affixing to the package the prepaid shipping label. 

G. Agree to the transfer of title and ownership property of their product to the Refurbisher, once the Refurbisher processes the payment to Individual. In this regard, the Individual agrees to the transfer of ownership property via a dematerialized transfer voucher, by checking a box marking their acceptance immediately before the confirmation of the order. You disclaim any and all right, title or interest in and to the traded product, including the right to sell, dispose, or otherwise collect, where applicable, its value. 

You'd think those things would need to occur before they actually process any trade in but I wonder if OP has performed all 3?

A_Geordie said:

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 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.

Thank you for explaining, I stand corrected, good to learn something new.

A_Geordie said:

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. 

@A_Geordie Without meaning to be argumentative, if I order a Playstation game from a retailer and they send a Paystation console in error that would suggest there was no contract, rather than there being a contract and one party not performing it in accordance with the agreement? 

Not so much that I disagree with you, just seems very open ended for any party to make a mistake and then say there wasn't a contract due to intention? Or are you saying OP's mix up with the addresses and the labels (i.e the very specific and unique situation) is what creates the lack of intention? 

On OP's dilemma in general, the CRA notes 

A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.

may be tested for farness, (if a contract was formed) OP has failed to perform their obligations and is in a roundabout way is paying a disproportionately high sum in compensation. 

I wonder if the term 6.6.3 that says " the Refurbisher may give notice that the product cannot be purchased through the Trade-in service" is unfair* but if that term were void I'm not sure what would take it's place. 

*On the other hand the term itself doesn't demand a disproportionately high sum in compensation, it's just OP's circumstances that have resulted in that, however you could send anything of value, miss the second offer and then be bound to accept the second offer from the refurbisher.

DefeatDsys

thanks all for the input

I have checked my email. and only found one email related to the outer offer. where the T&C required 3 reminders

A_Geordie

the_lunatic_is_in_my_head said:I know, I know 

@A_Geordie Without meaning to be argumentative, if I order a Playstation game from a retailer and they send a Paystation console in error that would suggest there was no contract, rather than there being a contract and one party not performing it in accordance with the agreement? 

Not so much that I disagree with you, just seems very open ended for any party to make a mistake and then say there wasn't a contract due to intention? Or are you saying OP's mix up with the addresses and the labels (i.e the very specific and unique situation) is what creates the lack of intention?

It depends on what you mean by mistake. There could be a mistake in the sense that the warehouse simply sent out the wrong item in which case the return of that item or the retailer could pursue the cost of it if not returned. It doesn't fundamentally impact the underlying terms of the agreement, which is to supply a Playstation game.

Then you have what is known as a contractual mistake which are based on certain legal principles that the contract itself was entered into on a false or a erroneous belief due to a fundamental term or number of terms not reflecting what the parties had intended. Price is a common example where there may be a contractual mistake.   

Intention to create legal relations differs from mistake in that it requires an intention that you intend to be bound by the terms that were discussed and agreed in order to form that contract. If that intention is lacking, there cannot be a contract. So yes, your point around the mix up of labels arguably creates the lack of intention. 

Even if it was found that there was an intention to create a legal relationship, the OP could possibly try to argue there was a contractual mistake, based on a unilateral mistake by the OP sending the Samsung phone over the iPhone, but I don't think that would fly. Unilateral mistake requires the non-mistaken party to be in a position that it ought to have known the mistake in order for the contract to be void. If there was no knowledge of a mistake, the contract is not void. This is where perhaps BM have cleverly found a workaround to that problem by stipulating what would happen in the event that the wrong phone is sent in to them. 

The last remaining option is likely to be an argument around those terms being unfair or to argue silence is not acceptance based on the gap around not replying or any other terms which BM have failed to comply with rendering the trade-in process incomplete. 

the_lunatic_is_in_my_head

A_Geordie said:

Intention to create legal relations differs from mistake in that it requires an intention that you intend to be bound by the terms that were discussed and agreed in order to form that contract. If that intention is lacking, there cannot be a contract. So yes, your point around the mix up of labels arguably creates the lack of intention. 

Thanks again for clarifying.

This appears to be your best bet OP, all you can really say is a contract wasn't formed as the unique situation meant there was no intention and you require your phone back or it's value.

As noted the value of a broken phone isn't necessarily £500 (although it was a broken phone under warranty that would have been fixed for free (possibly!), I've no idea how you'd put a value on the phone). 

the_lunatic_is_in_my_head

A_Geordie said:

Intention to create legal relations differs from mistake in that it requires an intention that you intend to be bound by the terms that were discussed and agreed in order to form that contract. If that intention is lacking, there cannot be a contract. So yes, your point around the mix up of labels arguably creates the lack of intention. 

Thanks again for clarifying.

This appears to be your best bet OP, all you can really say is a contract wasn't formed as the unique situation meant there was no intention and you require your phone back or it's value.

As noted the value of a broken phone isn't necessarily £500 (although it was a broken phone under warranty that would have been fixed for free (possibly!), I've no idea how you'd put a value on the phone).