Has a contract been entered in this circumstance?

Sligo1

Hi all,

I'm not sure whether this is suited here or more suited to consumer issues, so mods please feel free to move.

I ordered a couple of blankets from a well known online retailer over the weekend. The blankets were reduced from €79 to €19 each. I bought 2. I got a confirmation email after the order and another email giving dates when the products would be despatched which would be in about a weeks time. The money came out of my account yesterday.

So today I get an email from the company basically saying that there had been a glitch in the system and they were not going to honour the order. They stated that as the items had not been despatched there was no formal contract in place. And they will transfer back my money on due course.

I'm a but peeved to be honest. It's not the end of the world and I'm not going to fight with them about it. But I wouldve thought that once money left my account a contract would've been entered into? Is this not the case? Are they just allowed to take money from my account like that and then say there is no contract? What's annoyed me more is the fact they don't seem to give a crap that the money probably won't be available to me for another 10-14 days. I know the likes of Argos etc will let you reserve items but do not have to honour it etc. And that's fine when there's been no transfer of money. No big deal.

Just more wondering are they in the right that's there's No contract when they've actually debited money from my account?

Thanks

4ensic15

Sligo1 wrote: »

Hi all,

I'm not sure whether this is suited here or more suited to consumer issues, so mods please feel free to move.

I ordered a couple of blankets from a well known online retailer over the weekend. The blankets were reduced from €79 to €19 each. I bought 2. I got a confirmation email after the order and another email giving dates when the products would be despatched which would be in about a weeks time. The money came out of my account yesterday.

So today I get an email from the company basically saying that there had been a glitch in the system and they were not going to honour the order. They stated that as the items had not been despatched there was no formal contract in place. And they will transfer back my money on due course.

I'm a but peeved to be honest. It's not the end of the world and I'm not going to fight with them about it. But I wouldve thought that once money left my account a contract would've been entered into? Is this not the case? Are they just allowed to take money from my account like that and then say there is no contract? What's annoyed me more is the fact they don't seem to give a crap that the money probably won't be available to me for another 10-14 days. I know the likes of Argos etc will let you reserve items but do not have to honour it etc. And that's fine when there's been no transfer of money. No big deal.

Just more wondering are they in the right that's there's No contract when they've actually debited money from my account?

Thanks

Was there a disclaimer? Same thing happened to a friend of mine. He went to the Small Claims Court.

Sligo1

4ensic15 wrote: »

Was there a disclaimer?

There are terms and conditions on their website. And they do state that a formal contract will not be entered into until they accept the order and despatch the goods. That's fair enough. But there is nothing mentioned about the transfer of funds. Basically I'm just wondering if there is an overriding law or anything that says that once funds have been transferred that a contract is entered into.

I'm not going to force my point with them for the sake of a couple of blankets. Its more something I am interested in knowing for myself. I might send them an annoying email aswell. I'm peeved as I spent ages on the computer ordering them.

GM228

Sligo1 wrote: »

There are terms and conditions on their website. And they do state that a formal contract will not be entered into until they accept the order and despatch the goods. That's fair enough. But there is nothing mentioned about the transfer of funds. Basically I'm just wondering if there is an overriding law or anything that says that once funds have been transferred that a contract is entered into.

I'm not going to force my point with them for the sake of a couple of blankets. Its more something I am interested in knowing for myself. I might send them an annoying email aswell. I'm peeved as I spent ages on the computer ordering them.

A contract requires an offer, acceptance and consideration.

They offered for sale the item at an advertised price, you accepted buy agreeing to buy and consideration was satisfied as you paid, dispatch has nothing to do with it.

That said however contracts are subject to the terms and conditions.....

godtabh

This comes up on a regular basis. Unfortunately you dont have a leg to stand on

Sligo1

godtabh wrote: »

This comes up on a regular basis. Unfortunately you dont have a leg to stand on

Really? Even though they have taken money from my account?

Sligo1

GM228 wrote: »

A contract requires an offer, acceptance and consideration.

They offered for sale the item at an advertised price, you accepted buy agreeing to buy and consideration was satisfied as you paid, dispatch has nothing to do with it.

That said however contracts are subject to the terms and conditions.....

Thanks for this. It makes a lot of sense. Can terms and conditions over ride consumer law tho? Thanks again.

GM228

Sligo1 wrote: »

Thanks for this. It makes a lot of sense. Can terms and conditions over ride consumer law tho? Thanks again.

With regards T&Cs, consumer law would only really apply if there was an unfair term - i.e you were put at a disadvantage by a term or you were denied your legal rights, your getting your money back so not really a disadvantage to you.

4ensic15

Sligo1 wrote: »

Thanks for this. It makes a lot of sense. Can terms and conditions over ride consumer law tho? Thanks again.

Yes. You can contract out of the common law rules. Unless statute has intervened
there is nothing you can do. You might win on the unfair contract terms directive but that is a High Court job. I would take a punt on the Small Claims Court. It would be worth paying €25 Euro to make them come in and defend their shoddy practice.

Steve

Same thing happened with Aer Lingus a few years back, they got away with 'website problem' as a defense.

GM228

4ensic15 wrote: »

Yes. You can contract out of the common law rules. Unless statute has intervened
there is nothing you can do. You might win on the unfair contract terms directive but that is a High Court job. I would take a punt on the Small Claims Court. It would be worth paying €25 Euro to make them come in and defend their shoddy practice.

To be an unfair term the term "contrary to the requirement of good faith, causes a significant imbalance in the parties' rights and obligations under the contract to the detriment of the consumer".

Don't think in this case the issue would satisfy the test.

Sligo1

GM228 wrote: »

With regards T&Cs, consumer law would only really apply if there was an unfair term - i.e you were put at a disadvantage by a term or you were denied your legal rights, your getting your money back so not really a disadvantage to you.

Well technically I am at a disadvantage as the money will not be back In my account for 5-10 working days. That may be preventing me from buying a needed substitute.

This is all just discussion here.... Trying to make a point etc. But just wondering if it's a valid point. Now I'm lucky that 40 quid is not the be all and end all to me... But for some people it might be. And the same thing could happen with an item worth a few hundred euro. Does that mean the consumer can just be left with depleted funds for a couple of weeks and unable to buy a perhaps needed substitute due to the incompetence of these big multi million dollar companies. Shoddy practice is right!

Thanks for all the replies everyone. It's really informative. I don't think I'd bother going down the small claims route tho... I might if it were worth more...

Steve

Just re-read your first post.

Did you order the goods online?

if so, distance selling law applies. http://www.citizensinformation.ie/en/consumer_affairs/consumer_protection/consumer_rights/distance_selling.html

Not an immediate help but better route than consumer or contract law.

Sleeper12

Sligo1 wrote:

Really? Even though they have taken money from my account?

They are not stealing it. They will refund you the money. They made a mistake with their pricing. If it was a retail outlet they don't have to sell the item to you at the sticker price if they realize it is a mistake.
You feel hard done by but to be honest it actually sounds like you are trying to take advantage of them. You want to force them to sell you an item possibly at a loss. It doesn't seem fair to me

Sligo1

Steve wrote: »

Just re-read your first post.

Did you order the goods online?

if so, distance selling law applies. http://www.citizensinformation.ie/en/consumer_affairs/consumer_protection/consumer_rights/distance_selling.html

Not an immediate help but better route than consumer or contract law.

Thanks very much for this info.

Sligo1

Sleeper12 wrote: »

You feel hard done by but to be honest it actually sounds like you are trying to take advantage of them. You want to force them to sell you an item possibly at a loss. It doesn't seem fair to me

Are you actually having a laugh here? I sound like I'm trying to take advantage of them?? Pfft. Read my posts... I have said I wasn't going to take any action. I was merely discussing the situation and the legalities of it.

No I do not want to force them to sell me the item.

I don't really care if it seems fair to you. I was not looking for opinions on the fairness of life. I was looking for a discussion on the legalities of this specific situation.

Maybe I could take it to the small claims... Maybe I wouldn't have a leg to stand on. Either way I'm not taking any action. I was not looking for personal opinions on whether I'm an outstanding or terrible peron or one that tries to take advantage of million dollar companies. But thanks for your input. Your personal opinion of me was really informative and relevant to the discussion...

Sleeper12

Sligo1 wrote:

Are you actually having a laugh here? I sound like I'm trying to take advantage of them?? Pfft. Read my posts... I have said I wasn't going to take any action. I was merely discussing the situation and the legalities of it.

Sligo1 wrote:

No I do not want to force them to sell me the item.

Sligo1 wrote:

I don't really care if it seems fair to you. I was not looking for opinions on the fairness of life. I was looking for a discussion on the legalities of this specific situation.

Sligo1 wrote:

Maybe I could take it to the small claims... Maybe I wouldn't have a leg to stand on. Either way I'm not taking any action. I was not looking for personal opinions on whether I'm an outstanding or terrible peron or one that tries to take advantage of million dollar companies. But thanks for your input. Your personal opinion of me was really informative and relevant to the discussion...

And I'm answering your questions. It is NOT illegal for them to reverse the sale. A business is entitled to make a mistake. It would be different if they deliberately advertise a price knowing that they won't sell at that price. This is called false advertising.
If a business realizes that they have made a pricing mistake they are entitled to cancel the order.
BTW the contract is NOT complete till you receive the goods. It's not when you pay.
I have signed contracts with some supplies stating that I won't sell bellow cost price. If I made a mistake with an online price my contracts forbid me from selling below cost. This is also illegal in some countries.

Sligo1

Sleeper12 wrote: »

And I'm answering your questions. It is NOT illegal for them to reverse the sale. A business is entitled to make a mistake. It would be different if they deliberately advertise a price knowing that they won't sell at that price. This is called false advertising.
If a business realizes that they have made a pricing mistake they are entitled to cancel the order.
BTW the contract is NOT complete till you receive the goods. It's not when you pay.
I have signed contracts with some supplies stating that I won't sell bellow cost price. If I made a mistake with an online price my contracts forbid me from selling below cost. This is also illegal in some countries.

I actually figured from the personal tone of your initial post that you were a seller. I was looking for objective information.

If you say a contract is not complete until goods are received AND money exchanged than that's fair enough and i accept that. That is the information / discussion I was looking for.

GM228

Just to clarify a contract is complete (as in legally binding-as long as there is offer, acceptance and consideration and subject to T&Cs) before anything is delivered, the requirements of the contract are complete when something is delivered or it's requirements are met.

There's a difference.

Sleeper12

Sligo1 wrote:

I actually figured from the personal tone of your initial post that you were a seller. I was looking for objective information.

Sligo1 wrote:

If you say a contract is not complete until goods are received AND money exchanged than that's fair enough and i accept that. That is the information / discussion I was looking for.

This is the legal advice my company got before we set up an online store.
There's a lot of half right information on this thread tonight. The examination of the goods in the sale of goods act isn't you looking at photos on a website. It is you examining the physical goods when you receive them.
There are laws to protect the seller too.

Sligo1

GM228 wrote: »

Just to clarify a contract is a contract before anything is delivered, the requirements of the contract are complete when something is delivered.

You see that's exactly what I was thinking. Surely as another poster said by accepting or withdrawing money they are agreeing or accepting the order. It's annoying that they debit the funds prior to apparently agreeing/accepting the order (according to them they haven't accepted the order). If they were any good they would review the order before debiting the funds. There would be a lot less peeved of customers this way.

jimmycrackcorm

Sligo1 wrote:

Thanks for this. It makes a lot of sense. Can terms and conditions over ride consumer law tho? Thanks again.

What would you consider as appropriate if you ordered an item and the supplier said it is out of stock or their distributor wasn't in a position to fulfill the supply chain?

All you would be entitled to would be your money back.

Sligo1

Sleeper12 wrote: »

This is the legal advice my company got before we set up an online store.
There's a lot of half right information on this thread tonight. The examination of the goods in the sale of goods act isn't you looking at photos on a website. It is you examining the physical goods when you receive them.
There are laws to protect the seller too.

Can you post a link to that? I'm really open to correct information and will spend time reading it as its really intesting. If your point is legally correct you must've read it somewhere or it must be statute somewhere?

Steve

There is also a pretty loose determination of what Irish contract law actually is because it is based more on precedent than enacted legislation.

At the end of the day, only a judge, given the facts, can say what it is.

Unfair? yes. Reality? unfortunately for most of us.

Sligo1

jimmycrackcorm wrote: »

What would you consider as appropriate if you ordered an item and the supplier said it is out of stock or their distributor wasn't in a position to fulfill the supply chain?

All you would be entitled to would be your money back.

I'd still be peeved. Lol. But I don't think the website could debit the funds if they product is out of stock. Maybe I'm wrong. It's never happened me. Usually I get an email saying error and out of stock before any funds are withdrawn.

Sleeper12

GM228 wrote:

Just to clarify a contract is complete (as in legally binding-subject to T&Cs) before anything is delivered, the requirements of the contract are complete when something is delivered. There's a difference.

Ok. I order blankets online. Money is taken from my account. I get email from website stating that the last of the blankets were damaged and they can't get anymore in stock ever at any price. How is the website breaking any contract? Contract isn't complete till I received the goods. If I get a refund then contract in nul and void

The big part of your statement is subject to T&Cs. The T&Cs are part of the contract. Terms and conditions are there to protect the website. This can be due to damaged goods or a mistake in pricing. These T&Cs are as important as the consumers rights.

CramCycle

jimmycrackcorm wrote: »

What would you consider as appropriate if you ordered an item and the supplier said it is out of stock or their distributor wasn't in a position to fulfill the supply chain?

All you would be entitled to would be your money back.

Basically they shouldn't take the money until the point of dispatch.

Sleeper12

Sligo1 wrote:

Can you post a link to that? I'm really open to correct information and will spend time reading it as its really intesting. If your point is legally correct you must've read it somewhere or it must be statute somewhere?

My company engaged the services of a legal company that specializes in online law, within the EU and outside of it. They designed our T&Cs . This is where I love boards, if there isn't a link to something then it doesn't exist.

Sligo1

CramCycle wrote: »

Basically they shouldn't take the money until the point of dispatch.

This!

Steve

Sligo1 wrote: »

I'd still be peeved. Lol. But I don't think the website could debit the funds if they product is out of stock. Maybe I'm wrong. It's never happened me. Usually I get an email saying error and out of stock before any funds are withdrawn.

Sleeper12 wrote: »

Ok. I order blankets online. Money is taken from my account. I get email from website stating that the last of the blankets were damaged and they can't get anymore in stock ever at any price. How is the website breaking any contract? Contract isn't complete till I received the goods. If I get a refund then contract in nul and void

The big part of your statement is subject to T&Cs. The T&Cs are part of the contract. Terms and conditions are there to protect the website. This can be due to damaged goods or a mistake in pricing. These T&Cs are as important as the consumers rights.

In either case, all a court will do is award your money back.

Whether the seller does this after taking it and admitting a mistake or a court awards it amounts to the same end result

In fairness, Sleeper has a point, you can get a refund but you can't force the trader to supply the goods.

Sligo1

Sleeper12 wrote: »

My company engaged the services of a legal company that specializes in online law, within the EU and outside of it. They designed our T&Cs . This is where I love boards, if there isn't a link to something then it doesn't exist.

Ah come on. You pay a reputable company for advice... But just take their word and don't read anything up on it yourself??

Sligo1

Steve wrote: »

In either case, all a court will do is award your money back.

Whether the seller does this after taking it and admitting a mistake or a court awards it amounts to the same end result

In fairness, Sleeper has a point, you can get a refund but you can't force the trader to supply the goods.

Yep this is the point. And this is where it f*cks the customer

Steve

Sligo1 wrote: »

Ah come on. You pay a reputable company for advice... But just take their word and don't read anything up on it yourself??

If you pay a 'reputable' company for a service like this, the whole point is you don't have to worry about verifying it.
If they get it wrong, you sue them

Sleeper12

Sligo1 wrote:

I'd still be peeved. Lol. But I don't think the website could debit the funds if they product is out of stock. Maybe I'm wrong. It's never happened me. Usually I get an email saying error and out of stock before any funds are withdrawn.

I ordered a Samsung galaxy s7 edge from Viking direct. Money was taken at time of ordering. Three days later I get email saying out of stock, don't know when it will be back in stock and they refunded the money. It happens a lot.

CramCycle wrote:

Basically they shouldn't take the money until the point of dispatch.

In an ideal world but this isn't the law.

Steve

Sligo1 wrote: »

Yep this is the point. And this is where it f*cks the customer

I disagree, it protects the customer in that it puts them back to where they were at the beginning.. what more should there be?

Sleeper12

Sligo1 wrote:

Ah come on. You pay a reputable company for advice... But just take their word and don't read anything up on it yourself??

No I take the advice of complete strangers here on boards.
Was that a trick question??

Sleeper12

Sligo1 wrote:

Yep this is the point. And this is where it f*cks the customer

How???
Customer gets full refund. Do you expect to make a profit on someone's mistake?

The law is stacked up in favour of the customer for the most part but there are laws that protect the seller from someone trying to take advantage

Sligo1

Steve wrote: »

I disagree, it protects the customer in that it puts them back to where they were at the beginning.. what more should there be?

I disagree. I don't think this protects the customer. It leaves them minus funds that they may need to pay for a substitute until possibly a couple of weeks later. If the funds went immediately back In there would be no issue.

Don't take the money until point of dispatch. This would protect the customer more.

Sligo1

Steve wrote: »

If you pay a 'reputable' company for a service like this, the whole point is you don't have to worry about verifying it.
If they get it wrong, you sue them

Hahaha good point! My brother is a senior partner of such a company... I'd still read everything he presents me with. Lol. Saves the stress of having to sue!

Sligo1

Sleeper12 wrote: »

How???
Customer gets full refund. Do you expect to make a profit on someone's mistake?

Yes. I thrive on it.

Sleeper12

Sligo1 wrote:

I disagree. I don't think this protects the customer. It leaves them minus funds that they may need to pay for a substitute until possibly a couple of weeks later. If the funds went immediately back In there would be no issue.

Sligo1 wrote:

Don't take the money until point of dispatch. This would protect the customer more.

Thems the joys of buying online. Don't forget that you have a cooling off period when you buy online and can return goods just because you changed your mind. The rights are stacked up in favour of the customer and I'm glad they are. I have an online presence but I also buy a hell of a lot online too.
Buying online has its pro's and con's

26000 Elephants

E & OE

MarkAnthony

There's quite a bit of overcomplicating things going on here.

Yes a contract has been entered into, on the terms of the offer. Five will get you ten the OP has no idea what the terms of the offer are; that's not a criticism most of us haven't a clue what the terms of the offer are in relation to most of the transactions we enter into are. I suspect the terms of the offer allow them to withdraw up until the good are dispatched.

Sleeper12

MarkAnthony wrote:

Yes a contract has been entered into, on the terms of the offer. Five will get you ten the OP has no idea what the terms of the offer are; that's not a criticism most of us haven't a clue what the terms of the offer are in relation to most of the transactions we enter into are. I suspect the terms of the offer allow them to withdraw up until the good are dispatched.

If this wasn't an online sale then yes a contract has been entered into.
A contract has to take into account the law. So the contract isn't complete until the customer accepts the physical goods.
In other words the contract has to encorporate the cooling off period. Even sneaky T&Cs can't get around this. So the contract can not be completed till the customer accepts the physical goods
Now some smart ass is going to say that no she can return them under sale of goods act but the all of these acts are part of the contract or they help Govern the contract.
If you want to return a faulty product after 13 months with warranty out of date & shop keeper says nothing to do with him it's out of warranty and you should talk to the manufacturer your reply is my contract is with you. Your consumer rights are part of the contract. You or the shop keeper can't separate them.
People on boards love to separate things to bring sense to their side of the argument. In this case they can not be separated.
Bottom line is contract is Not complete until customer has accepted the physical goods. If they return the goods the contract wasn't completed

CramCycle

Sleeper12 wrote: »

In an ideal world but this isn't the law.

I know but it should be. Several companies do this to save such hassle. There are several smaller companies who do the opposite, having reason to believe they won't fill every order placed. It's just a bit ****ty and I sometimes wonder are there benefits to the company of having this extra cash for a few days. It often takes far longer to refund than I imagine it should. Paranoia creeping in.

It's happened a few times to me, sometimes the money is never taken, others it is but it is refunded within2 or 3 days and then there is the 5 days until they let you know it's not in Stock, 5 days till they process the refund and then it's two weeks before my money is back.

I know it's not illegal but not having their **** together, be it from a stock management POV or from a customer response time is just atrocious.

Not illegal and I don't kick up a fuss but still really ****ty and something that could be hard to stamp out in smaller companies but companies over a certain size should be called into line on.

Just my opinion.

Sleeper12

CramCycle wrote: »

I know but it should be. Several companies do this to save such hassle. There are several smaller companies who do the opposite, having reason to believe they won't fill every order placed. It's just a bit ****ty and I sometimes wonder are there benefits to the company of having this extra cash for a few days. It often takes far longer to refund than I imagine it should. Paranoia creeping in.

It's happened a few times to me, sometimes the money is never taken, others it is but it is refunded within2 or 3 days and then there is the 5 days until they let you know it's not in Stock, 5 days till they process the refund and then it's two weeks before my money is back.

I know it's not illegal but not having their **** together, be it from a stock management POV or from a customer response time is just atrocious.

Not illegal and I don't kick up a fuss but still really ****ty and something that could be hard to stamp out in smaller companies but companies over a certain size should be called into line on.

Just my opinion.

I am agreeing with you.
Just to give some reasons why its done the way it is. There isn't a real person on the other end of the internet, its a computer so it is all automated. By taking the payment at time of order rather than at time of processing means your payment is cleared without wasting any human time at all. If the payment has been declined the order doesn't go through. A lot of time saved here. We want things as cheap as possible online & its things like this that help us save our money.

I gave an example earlier of me ordering a phone from Viking Direct & them cancelling the order due to it not being in stock. I had payed by paypal & it took 9 days for them to refund. This is taking the P**s. I can refund a paypal payment instantly. Gets into the other account in seconds. Card payment takes 1 to 2 days. There is no excuse for waiting 9 days.

Sligo1

MarkAnthony wrote: »

There's quite a bit of overcomplicating things going on here.

Yes a contract has been entered into, on the terms of the offer. Five will get you ten the OP has no idea what the terms of the offer are; that's not a criticism most of us haven't a clue what the terms of the offer are in relation to most of the transactions we enter into are. I suspect the terms of the offer allow them to withdraw up until the good are dispatched.

Yes that's exactly right. The T & Cs say they can withdraw up until the items have been dispatched.

Sligo1

Ok update, so I sent a letter to them yesterday giving out that i wouldn't have my money back for 5-10 days. I also mentioned that I believe a contract had been entered into due to them withdrawing the money from my account.
I was really just testing the waters and being argumentative. Lol.

Anyway, I literally just got an email back with a letter attached saying they could not provide the items as they were sold out. Lol. Just seems funny that initially was refused the items for one reason... And when I mention anything about a contract they are now sold out.

Anyway, fwiw, this was only for a bit of discussion. Thanks everyone who entered into it.

Sleeper12

Sligo1 wrote: »

Ok update, so I sent a letter to them yesterday giving out that i wouldn't have my money back for 5-10 days. I also mentioned that I believe a contract had been entered into due to them withdrawing the money from my account.
I was really just testing the waters and being argumentative. Lol.

Anyway, I literally just got an email back with a letter attached saying they could not provide the items as they were sold out. Lol. Just seems funny that initially was refused the items for one reason... And when I mention anything about a contract they are now sold out.

Anyway, fwiw, this was only for a bit of discussion. Thanks everyone who entered into it.

But you still have to wait 5 to 10 days for a refund. This part annoys me. It should be done within a day or so

Sligo1

Sleeper12 wrote: »

But you still have to wait 5 to 10 days for a refund. This part annoys me. It should be done within a day or so

Yes exactly. This is my whole point tbh. I wouldn't give a toss if I had the money back in my account today. But I don't. And I won't see it until at least next week at the earliest and I put the order in last week. At least it's only €40. But if it were a couple of hundred id be livid.

Sleeper12

Sligo1 wrote:

Yes exactly. This is my whole point tbh. I wouldn't give a toss if I had the money back in my account today. But I don't. And I won't see it until at least next week at the earliest and I put the order in last week. At least it's only €40. But if it were a couple of hundred id be livid.

Mine was around 800 for the phone. It actually saved me in the long run as I decided I didn't really need it anyway.