can dell do this

hollydays

I believe being out of stock could be caused by exceptional circumstances,eg strike,difficulty with roads ,rail or air freight, which could be given as a reason ,and could be construed as Force Majeure.
No one has said that being out of stock is Force Majeure.
Why dont you take this arguament to a legal forum, Squiffy,then come back,its going round in circles.

uktim29

hollydays wrote: »

I believe being out of stock could be caused by exceptional circumstances,eg strike,difficulty with roads ,rail or air freight, which could be given as a reason ,and could be construed as Force Majeure.
No one has said that being out of stock is Force Majeure.
Why dont you take this arguament to a legal forum, Squiffy,then come back,its going round in circles.

Exactly. Dell have no control over any suppliers they may use as they don't run them. They are seperate companies. If one of those goes bust or for some reason no longer stocks a component Dell needs then it's out of Dell's hands. Any reasonable person would include these circumstances as force majeure. Any judge in a court or person working for Trading Standards will be perfectly happy if Dell have refunded.

Squiffy wrote: »

So trading standards only exist to ensure refunds are given and will 'not be impressed' with the consumer when a supplier breaches its contract?

I have been told this by a Trading Standards officer when I use to work in retail about a customer complaining about a sign (which happend to be perfectly ok). I was told "there are grannys being ripped off thousands of pounds & I've got to look at a sign". This petty sort of argument of yours also gets right up their noses as well. There has been no harm done, they really don't like this sort of consumer behaviour.

RadoJo

I thought that in this kind of case the parties were supposed to be returned to the state in which they were before they entered into the agreement. In this case the OP has been refunded the full amount paid, so hasn't actually lost out on anything - would a court really bother with the fact that he wanted this particular item from Dell and they don't have it?

Squiffy

uktim29 wrote: »

Exactly. Dell have no control over any suppliers they may use as they don't run them. They are seperate companies. If one of those goes bust or for some reason no longer stocks a component Dell needs then it's out of Dell's hands. Any reasonable person would include these circumstances as force majeure. Any judge in a court or person working for Trading Standards will be perfectly happy if Dell have refunded.

No judge or court would accept breach of contract just because there has been a refund. The remedy for breach of contract is for the consumer to be in the position they would have been if the contract had been fulfilled. The remedy for breach of contract is NOT to put both parties back into the pre-contract position.

And you are still incorrect about Force Majeure. Even if one supplier has gone out of business, Dell should be finding equivalent or superior alternatives from other suppliers. What else do you believe that provision in the T&Cs is for?

Ever heard of the Kodak case? There was email confirmation of a contract, and Kodak were forced to uphold those contracts.

Why is Dell different here?

Order confirmation constitutes acceptance, and therefore there is a contract.

uktim29 wrote: »

I have been told this by a Trading Standards officer when I use to work in retail about a customer complaining about a sign (which happend to be perfectly ok). I was told "there are grannys being ripped off thousands of pounds & I've got to look at a sign". This petty sort of argument of yours also gets right up their noses as well. There has been no harm done, they really don't like this sort of consumer behaviour.

I seem to recall trading standards being very supportive in the Kodak case, despite nobody having lost money.

Squiffy

hollydays wrote: »

Why dont you take this arguament to a legal forum, Squiffy,then come back,its going round in circles.

I answered the question from the OP, and I'm objecting to those giving the OP incorrect & misleading information.

I think it is perfectly correct that this argument remains here as it is of direct interest to the OPs problem.

hollydays

The Defence Lawyer:

" Violet Elizabeth ordered a rainbow-coloured Thingy with extra-special oomph velocity from Dell.Dell could not eventually source one.Violet Elizabeth was refunded the sum paid."

Violet Elizabeth :
"Yeth,And I am going to scweam and scweam until I get one!":D

The premis,to me,seems obvious.You cant have what you cant get..,and no,sometimes you cant get a substitute.

uktim29

If thats anything to do with a Kodak pricing mistake then it's completely different! Thats got nothing to do with components becomming unavaliable.

Again any reasonable person would consider this Force Majeure.

superscaper

As mentioned earlier I don't see the point in debating whether a contract was formed or not unless Dell are refusing to refund. I've never heard of a court case where the plaintiff was awarded an item not ordered. They're only ever awarded the money back, which is exactly what the OP has already been offered. To what possible benefit is it to determine at what point the contract was made binding? There's nothing the consumer can gain from it more than Dell have already done.

Squiffy

uktim29 wrote: »

If thats anything to do with a Kodak pricing mistake then it's completely different! Thats got nothing to do with components becomming unavaliable.

Again any reasonable person would consider this Force Majeure.

It is not completely different. The Kodak case turned on whether their email confirmation constituted acceptance and therefore a contract. Dells own T&Cs explicitly state that it is a contract.

And therefore the contract has to be upheld.

Force majeure is not a valid exception here - there is nothing to stop Dell sourcing equivalent or superior alternatives, even if they could show that their original supplier cannot supply due to riot, flood, etc.

Lets look again at Dells T&Cs relating to Force Majeure.

Frustration/Circumstances beyond the Parties' control ("Force Majeure")
Consumers: 10.1 Neither party is responsible for non-performance in case of circumstances beyond its reasonable control ("Force Majeure") including without limitation, strikes by non Dell employees, terrorist acts, war, exchange fluctuations, governmental or regulatory actions, natural disasters, severe weather, unforeseeable transport or production problems affecting companies that supply Dell.
10.2 If a Force Majeure event occurs & Dell cannot deliver within the period set out in the Order Confirmation, Dell will & Consumer may act in accordance with the terms of clause 5.5 above.
10.3 If the Force Majeure event lasts longer than 60 days then Dell shall have the right to terminate the Agreement by providing notice in writing to Consumer & returning all sums paid by Consumer under the Agreement. No compensation to Consumer will then be due in these circumstances.

So you are obviously trying to show that there must be "unforseeable transport or production problems affecting companies that supply Dell". Being out of stock is not unforseeable. In the case custardy highlighted, it is back on their website as being in stock!

The only way force majerue would stick is if Dell could show that NONE of their suppliers could provide equivalent or superior alternatives. And for that contract provision to be true, that would have to be the case for 60 days!

They are NOT relying on force majeure, because there is no such situation. And even if they were, they cannot invoke that as a means to break the contract unless the force majeure situation has existed for 60 days.

Prove me wrong if you can.

Back to the OP, have you had any further communcation with Dell?

Hollydays - why do you bother? You are adding no value to the debate. Argue the points if you can, but your posts are just being childish and peurile.

hollydays

It wasnt aimed at you personally,but I apologise if it came across that way.Rather aimed at an attitude you sometimes see on these boards which is "I want,I demand" No reasoning.Just turns into foot stamping.
re being childish though,hmm.."Prove me wrong if you can"...thats arguing a point and adding value? I am not the slightest bit interested in getting into an argument about this though,good luck to all.