Argos refusing to accept return

born_again

This is another case where consumer regulations are not keeping pace with the changes in the consumer marketplace.
Should be simple to add a section in to cover these purchases to either cover or not.


Pay on order = distance sale
Pay on pick up = instore purchase.

Grumpy_chap

A_Geordie said:

But in order to collect the goods the customer must be notified that the goods are ready to collect. Logically, Argos must have accepted the customer's offer prior to collection. If they didn't accept the offer, the goods wouldn't be available for collection. Trying to argue the conclusion of the contract at the point of collection is more form over substance. 

I am still not sure I agree.

The online part may be merely a "Statement of Intent."

The customer says they intend to buy a TV, so Argos make the TV ready for collection (costs of doing so at Argos risk).  Once ready, Argos notify the customer that the TV is ready for collection.

The customer might not collect for any reason, so contract would not conclude.

Argos might still not accept the offer when the customer arrives to collect the TV.  Maybe the staff dropped the TV when bringing it from the stockroom, or whatever.

It seems fair given neither party is bound until the customer arrives to confirm the offer which will usually be accepted by Argos and the contract concluded.



It seems similar to a car purchase.  Pay a refundable deposit online and the garage gets the car available to view.  If the customer decides not to proceed, the refundable deposit is refunded.  If the customer does decide to proceed, they make an offer which may be accepted by the garage.

Okell

Grumpy_chap said:

Okell said:

But a consumer contract requires the consumer (the offeror) to make an offer, and the trader (the offeree) to accept the offer.

The contract is formed when the offer is accepted by the trader - not before and not after.

The consumer can't accept their own offer, so I don't see how the trader's T&Cs - no matter what they say - can dictate that a contrcat is only formed when the consumer collects the goods.

The contract has already been formed at that point - probably when the trader informs the consumer that goods are ready for collection - and both parties can enforce it from there.

I am not sure that the offer and acceptance has occurred at that point.

As I explained a little upthtread, that might be just an Invitation to Treat.

It is the same as picking up a tin of beans in the Supermarket which the shelf says is 75 pence.  The offer to purchase is only made when at the checkout.  Usually, the offer is made at the advertised price and that leads to acceptance and completion.  All virtually simultaneously.

[Edit:  I hadn't read Grumpy_Chaps latest comment when I posted this]


 What are you saying might be an invitation to treat?  

Are you thinking that Argos's email to the consumer should be seen as an invitation to treat?

This is how I see the sequence of events here:

1.  Argos advertise an item online = invitation to treat
2.  Consumer places an order = offer
3.  Consumer makes payment usually at this point
4.  Passage of time (might be a couple of hours, might be several days or weeks, might be even longer)
5.  Argos emails consumer to say goods ready for collection = acceptance
6.  At which point a contract exists between the consumer and Argos, enforceable by both parties.

Perhaps I've got it wrong, but if I've understood you correctly you think steps 1 - 4 have no significance, and you think that step 5, which I think is acceptance by Argos, is actually an invitation to treat by Argos, and that the consumer makes an offer by collecting the goods?

So at what point does Argos accept that offer?

I can't help but feel that a court would think that Argos's click and collect T&Cs are just an artificial contrivance to avoid their obligations under the CCRs and that a proper interpretation of the situation would be my steps 1 - 6.

Okell

I'm having a senior moment...

I know that traders can't avoid liability etc under the Consumer Rights Act, but is there a similar provision under The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013

My mind's gone blank!

the_lunatic_is_in_my_head

Okell said:

1.  Argos advertise an item online = invitation to treat
2.  Consumer places an order = offer

This bit is most probable, I'm not sure Grumpy is understanding what an invitation to treat actually is, an offer is merely saying you are interested in a deal and an order via the website is clearly that (the doc Alder linked to cites this as well). 

https://assets.publishing.service.gov.uk/media/61b9feade90e070449d49fd1/Transfer-of-ownership-report-and-bill.pdf

As we said above, we think that a similar analysis applies when goods are purchasedonline as when they are purchased in store. The display of goods on the retailer’swebsite is not an offer but an invitation to treat. When a consumer adds an item totheir “basket” and clicks on the button to place their order, the consumer makes anoffer to the retailer to buy the goods. We think that if the retailer charges theconsumer’s card, that would amount to an acceptance of the consumer’s offer. Wesee no reason why the taking of payment would amount to an acceptance whengoods are purchased in a physical shop, but not when goods are purchased online.5.9 Accordingly, absent terms and conditions delaying formation, we think that thecontract would form on payment by the consumer. This would precede dispatch in allcases where the retailer takes payment from the consumer at an earlier point. 


I think the only ambiguous part is acceptance in all this but as Jenni points out the terms don't mention acceptance, they only mention "completion". 

I don't know if "completion" has any legal definition?

Google links to lots of articles about house purchases noting "completion" is when title passes. Passing of title is usually governed by the SOGA. I have no idea if property law is different but the SOGA doesn't mention the word "completion", nor does the CRA or indeed the CCRs. 

Now the CRA requires that 

https://www.legislation.gov.uk/ukpga/2015/15/section/68

(1)A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2)A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

So is there some blind spot in our (my!) knowledge that is glaring obvious to everyone else or are Argos simply not being transparent by using terms that aren't simple to understand? 

Okell said:

I'm having a senior moment...

I know that traders can't avoid liability etc under the Consumer Rights Act, but is there a similar provision under The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013

My mind's gone blank!

https://www.legislation.gov.uk/ukpga/2015/15/section/12

(2)Where regulation 9, 10 or 13 of the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (SI 2013/3134) required the trader to provide information to the consumer before the contract became binding, any of that information that was provided by the trader other than information about the goods and mentioned in paragraph (a) of Schedule 1 or 2 to the Regulations (main characteristics of goods) is to be treated as included as a term of the contract.

https://www.legislation.gov.uk/ukpga/2015/15/section/31

(1)A term of a contract to supply goods is not binding on the consumer to the extent that it would exclude or restrict the trader's liability arising under any of these provisions—
(d)section 12 (other pre-contract information included in contract)

Okell

@the_lunatic_is_in_my_head

Yes - what I've posted as steps 1 - 6 is what I think a court would say.

Having read all @Grumpy_chap's posts again I can see what he's saying, but I think what he suggests is far more suited to the sort of more sophisticated negotiation and back and forth you'd get in a commercial contract between two equal parties, but it's not appropriate for what should be a straightforward consumer contract which - as you say - should be readily understandable by the consumer and not too complicated.

What Grumpy did make me wonder about was whether there might be some sort of "conditional acceptance" or some other "conditional contract" going on here?

As I recall "conditional acceptance" is really just a counter-offer and, again, I don't think that's applicable in a consumer contract.

The Law Commission paper @Alderbank cited does mention click and collect contracts and also mentions conditional contracts, but it doesn't seem to say that the Argos type click and collect is a conditional contract.

I don't know for sure, but my best bet would be a court would go for the 6 steps I've suggested rather than anything needlessly more complicated.

Regarding my question about the CCRs, what I meant was: there is provision in the CRA preventing a consumer from contracting out of their rights under the CRA.  Now I'm probably being really thick here, so bear with me - is there anything similar in the legislation that says a consumer cannot contract out of their right to cancel a distance contract under the CCRs?

Grumpy_chap

Okell said:

This is how I see the sequence of events here:

1.  Argos advertise an item online = invitation to treat
2.  Consumer places an order = offer
3.  Consumer makes payment usually at this point
4.  Passage of time (might be a couple of hours, might be several days or weeks, might be even longer)
5.  Argos emails consumer to say goods ready for collection = acceptance
6.  At which point a contract exists between the consumer and Argos, enforceable by both parties.

Well, the sequence I set out, and someone else mentioned matches Argos T's&C's would be 

1. Argos advertise an item online = invitation to treat

2. Consumer places an order = Statement of Intent 

3. Consumer makes payment usually at this point = confirm seriousness of Statement of Intent and Argos to commit to the effort to make the order ready

4. Passage of time (might be a couple of hours, might be several days or weeks, might be even longer)

5. Argos emails consumer to say goods ready for collection

6. Customer goes to shop and offers to buy
7. Argos accept offer.
8. Argos hand goods to customer = completion 

Okell said:

Having read all @Grumpy_chap's posts again I can see what he's saying, but I think what he suggests is far more suited to the sort of more sophisticated negotiation and back and forth you'd get in a commercial contract between two equal parties, but it's not appropriate for what should be a straightforward consumer contract 

I agree, but that seems to be how Argos believe it works.

Okell

Grumpy_chap said:

Okell said:

This is how I see the sequence of events here:

1.  Argos advertise an item online = invitation to treat
2.  Consumer places an order = offer
3.  Consumer makes payment usually at this point
4.  Passage of time (might be a couple of hours, might be several days or weeks, might be even longer)
5.  Argos emails consumer to say goods ready for collection = acceptance
6.  At which point a contract exists between the consumer and Argos, enforceable by both parties.

Well, the sequence I set out, and someone else mentioned matches Argos T's&C's would be 

1. Argos advertise an item online = invitation to treat

2. Consumer places an order = Statement of Intent 

3. Consumer makes payment usually at this point = confirm seriousness of Statement of Intent and Argos to commit to the effort to make the order ready

4. Passage of time (might be a couple of hours, might be several days or weeks, might be even longer)

5. Argos emails consumer to say goods ready for collection

6. Customer goes to shop and offers to buy
7. Argos accept offer.
8. Argos hand goods to customer = completion ...

I'm not convinced a court would choose to describe what ought to be a simple and straightforward consumer contract in more steps than are strictly necessary.  I think the 6 steps I propose make more sense in the context of consumer contracts.

And that seems to be the view of the Law Commission in relation to online contracts generally (see paras 5.4 to 5.9 of the paper rpreviously referenced by Alderbank and the Lunatic) and I don't see why click and collect should be any different - despite what Argos might like to think.

What you might will find interesting is paras 5.45 to 5.49 where they discuss whether conditional contracts might be the best way to approach this problem.  Having re-read your posts I think that is very close to what you are suggesting - but the Law Commission paper seems divided as to whether this would be a good idea.  (Most of the people who don't like it think it too difficult for consumers to understand).

Grumpy_chap said:

Okell said:

This is how I see the sequence of events here:

1.  Argos advertise an item online = invitation to treat
2.  Consumer places an order = offer
3.  Consumer makes payment usually at this point
4.  Passage of time (might be a couple of hours, might be several days or weeks, might be even longer)
5.  Argos emails consumer to say goods ready for collection = acceptance
6.  At which point a contract exists between the consumer and Argos, enforceable by both parties.

I agree, but that seems to be how Argos believe it works.

Nah.  That's just how Argos want naive consumers to believe how it works...

the_lunatic_is_in_my_head

Okell said:

whether there might be some sort of "conditional acceptance" or some other "conditional contract" going on here?

The Law Commission paper @Alderbank cited does mention click and collect contracts and also mentions conditional contracts, but it doesn't seem to say that the Argos type click and collect is a conditional contract.

I did see that in the doc but they seemed to dismiss the idea being practical for consumer contracts for various reasons. 

Okell said:

Nah.  That's just how Argos want naive consumers to believe how it works...

I think this is it and as Geordie says, if challenged they'll fold but it's the most profitable option as the majority accept what they are told.