Misrep in Standard Form (consumer) contracts.

Denny_Crane

Being (more) stupid than normal I just can't wrap my mind around this. Having a discussion in Consumer Issues I was very sure of my position. After being challenged and then going off to do some reading (I love boards for making me study) I've a good set of notes on misrep and a headache trying to figure out this scenario.

A buys a potato from Potatoes Inc which has a standard set of terms and conditions. B a salesperson for Potato's Inc is asked, can I return this potato if it's not suitable (we'll say it's a solstice present of some kind).

B informs A that the potato can be returned within 51 days. A purchases the potato and upon it being unsuitable attempts to return it. Potatoes Inc states their terms and conditions state potatoes can not be returned due to change of mind.

Is this misrepresentation? My understanding it misrep would only apply if it was a term of the contract, which this isn't as there is a standard form. Furthermore would it not have to be something about the goods themselves such as this potato is suitable for building with, when it is in fact not.

lifeandtimes

Your consumer rights give the option of a repair,refund or replacement of the item is broken,not a change of mind.

Companies are not obliged to accept returns of an item due to change of mine however most will if it is resalable and as such will usually offer store credit and in some cases a refund.

The buyer would have had to read to the terms and conditions before signing to know their options,even if an employee advises different the terms are what you are held by....it's very difficult to argue what you were advised by an employee as it's he said she said which is why they refer back to the terms and in this case it's states no returns due to change of mind

hullaballoo

Denny, your example of winter solstice potato presents isn't helpful.

I say this because the salesman's representation in relation to a potato is irrelevant. The terms of a contract for the purchase of a potato are that it must be a potato. It's difficult even if you imagine that the salesman was asked "is this potato suitable for making chips?" and he advises that it is but it turns out it is a baby new potato and wholly unsuitable for making chips, to say that could be a misrepresentation.

Misrep has to go to a term of the contract. There was an example here previously, I think in the FE1 thread, where a farmer bought a tractor. There was a question over whether the sales agent's representation that the tractor was good on uneven ground was tantamount to an assurance that the tractor would go up a steep hill. That's a better example.

GerardKeating

Denny_Crane wrote: »

Being (more) stupid than normal I just can't wrap my mind around this. Having a discussion in Consumer Issues I was very sure of my position. After being challenged and then going off to do some reading (I love boards for making me study) I've a good set of notes on misrep and a headache trying to figure out this scenario.

A buys a potato from Potatoes Inc which has a standard set of terms and conditions. B a salesperson for Potato's Inc is asked, can I return this potato if it's not suitable (we'll say it's a solstice present of some kind).

B informs A that the potato can be returned within 51 days. A purchases the potato and upon it being unsuitable attempts to return it. Potatoes Inc states their terms and conditions state potatoes can not be returned due to change of mind.

Is this misrepresentation? My understanding it misrep would only apply if it was a term of the contract, which this isn't as there is a standard form. Furthermore would it not have to be something about the goods themselves such as this potato is suitable for building with, when it is in fact not.

If you have "proof" of what "B" said, then you might have a case against "B", but "Potato's Inc" will stick to it's T&C's and argue it was not responsible for unauthorised terms agreed with B.

davindub

From a contract perspective it is an misrepresentation action, misrepresentation covers inducements to enter a contract rather than the contract itself.

But obviously there would have to be further examination about the manner of the contract:
- Reliance on the inducement : if in writing and contains a different term, the consumer's case is weakened. If no written terms as often the case (display of terms somewhere? On receipt?), the case is stronger. Reliance on the inducement is vital to demonstrate.

- Meaning of the inducement - Also "suitable" might be taken as in the sale of goods act (unlikely) but it's something to consider, if the consumer made clear what "suitable" related to, etc.

So not always clear cut. Small claims court, probably successful, elsewhere a lot more bother.

Denny_Crane

I didn't want to refer specifically to the thread, hence my silly example. Thank you for the replies but I'm still not wrapping my head around this in regard to standard form contacts. So taking a more specific example of a laptop say.

I purchase a laptop from PC World. My issue is specifically one to do with PC World's returns policy so I ask the salesperson:

"I'm buying this for my wife, can I return it if she doesn't like it?"

If an affirmative answer is given, perhaps with some detail such as "Absolutely, within 14 days as long as the item is unopened" has misrepresentation taken place (assuming other matter such as my reliance on that statement do not arise). What I'm not getting in misrep requires something to be a contract term does it not? So in a similar situation with Mom and Pop computers, we've negotiated the terms of the contract, in PC World it's a standard form contract which can't be altered on the word of the sales person.

I might be going off on a complete tangent as for misrep top have occurred perhaps it has to be something like.

"Does this have a 5Ghz Processor" or "Does it have 16GB RAM" rather than can I return it?

Sorry to be so vague, I've gone over 3 or 4 different chapters on this now and in the context of the cases given it makes complete sense, in the terms of standard form contracts I'm at a complete loss.

davindub

Denny_Crane wrote: »

I didn't want to refer specifically to the thread, hence my silly example. Thank you for the replies but I'm still not wrapping my head around this in regard to standard form contacts. So taking a more specific example of a laptop say.

I purchase a laptop from PC World. My issue is specifically one to do with PC World's returns policy so I ask the salesperson:

"I'm buying this for my wife, can I return it if she doesn't like it?"

If an affirmative answer is given, perhaps with some detail such as "Absolutely, within 14 days as long as the item is unopened" has misrepresentation taken place (assuming other matter such as my reliance on that statement do not arise). What I'm not getting in misrep requires something to be a contract term does it not? So in a similar situation with Mom and Pop computers, we've negotiated the terms of the contract, in PC World it's a standard form contract which can't be altered on the word of the sales person.

I might be going off on a complete tangent as for misrep top have occurred perhaps it has to be something like.

"Does this have a 5Ghz Processor" or "Does it have 16GB RAM" rather than can I return it?

Sorry to be so vague, I've gone over 3 or 4 different chapters on this now and in the context of the cases given it makes complete sense, in the terms of standard form contracts I'm at a complete loss.

Yes they would both be examples of inducements.

In the first the rep is clearly stating that the returns policy is 14 days unopened. That is the inducement to buy, otherwise the consumer probably would not buy. The returns policy is not provided for elsewhere in the making of the contract, so reliance can be demonstrated.

The second one also is an inducement, the sales person is considered a expert and the consumer not, the consumer is reliant on the information given by the sales person. Also this would be covered under "as described" in sale of goods act, which would be an easier case.

Standard contract terms can be relied on, but not if more specific terms are given, i.e. I myself have agreed with John who I believe to be an agent of XYZ limited to get an extended returns policy of x days on this specific item today.

Not an inducement might be:
I think this is the best machine for you.
Vagueness - the consumer intended "see if x likes" to mean next xmas (she likes to do the shopping in January for the next year", the shop attendant had a more reasonable timeframe in mind. If the consumer just said "see if she likes", it would be too vague to refer to a duration of nearly a year, etc.

Denny_Crane

Thanks Davindub, I'll have a read up on inducements, I didn't come across anything on my initial reading though - this would be within the same ambit as misrepresentation?

Also is this not complicated by a standard form contract, how is that over come? OR is indeed that the point, that it's the false information?

davindub

Denny_Crane wrote: »

Thanks Davindub, I'll have a read up on inducements, I didn't come across anything on my initial reading though - this would be within the same ambit as misrepresentation?

Also is this not complicated by a standard form contract, how is that over come? OR is indeed that the point, that it's the false information?

There is not a list of inducements, you need to read judgements but you should come across a lot of examples if looking up misrepresentation. Because this is a common law doctrine, look up English judgements as well (obviously IRE is more relevant than ENG)

(BTW if the contract is not in writing, and the employee who describes the returns policy actually completes the sale, it is no longer inducement, it's more likely a new term in the contract).

Now this is getting away from the subject:

The standard form contract if in writing/oral, is just a contract, either party can modify it (it may be against company rules to do so, but as the customer is likely to believe the employee is an agent of the company, it is valid). Because this is so, a reasonable person would believe the final contract will contain the term described to him before completing the contract (consideration) if described prior to entering the contract. For an oral contract, this will include any terms orally given, for written - added written terms (not always so...but for here).

The same goes for terms that are assumed by general policy, e.g. a sign stating the policy may be overwritten by a specific policy for a product. Standard form contracts are applied in this instance if no further terms are created (dependant on the term).

Personal Opinion:
Really terms assumed in this manner, in order to be valid (gen) would need to be of a nature that their absence would not lead to other terms being applied. Otherwise it would be debatable whether the consumer had an opportunity to read the sign (conversely if there are no assumed terms other than the sign and the consumer does not read the sign, he proceeds on that basis, the consumer would not be adversely affected by ignorance of the returns policy as he proceeded on the basis there was none).

Signs posted about specific terms for the consumer to complete would be very unlikely to be assumed into the contract, e.g. Must pay 10% royalty to HMC for each purchase. Conversely, purchases of music have terms and conditions included on the product box, e.g. for home use only, a separate fee to IMRO/ PPI (merged) for use of the music in a business. Could an employee of the music shop give you permission to not pay imro? Or maybe a sign says you do not have to pay imro, or included in the terms of the sale? No - industry practice to pay IMRO and reasonable person would not think shop is agent for the artist's production company.

So probably clear as mud...

Denny_Crane

Thanks again.

To clarify, I did not find anything on inducements on my initial reading on misrep, perhaps I overlooked it. It was not a list that I was looking for but a pointer to inducements, I see that above I'll have a read through thank you. I'm still not completely happy with the standard form contract and agency side of this, again I can delve a little deeper there - I seem to remember battle of the forms possibly being useful here but not exactly what I'm looking for. I'm also still having difficulty with a written contract being overridden by the say-so of an employee. I think what you're driving at though is a consumer can't be deemed to be aware of the T&Cs to which they are contracting?

Please note I'm not pushing back on what you're saying merely trying to puzzle it out. Thank you again for your explanations!

davindub

It's ok to question it's a discussion!

Denny_Crane wrote: »

written contract being overridden by the say-so of an employee

written contract:
Term written on contract = valid term
Orally given = inducement to sign, not as clear cut as that but the gist of it.

Have you got access to a contract law book (not a nutshell)? They usually have a section on it! If not use a legal db to look for misrepresentation to get the basics

Heres the first case on Bailii.org (free db) "misrepresentation"
http://www.bailii.org/cgi-bin/format.cgi?doc=/ie/cases/IECA/2015/CA164.html&query=(misrepresentation)

Denny_Crane

Aye three in fact! I'll go back over it. I've full access to West Law etc. also but Balii is always welcome as I can just link to it.

Thanks again for the help!