Online misprice advice needed

[sam1781]

I purchased an item from an item online retailer for £3500 having spotted what I thought was good deal as the item normally retails for between £5-6k. Order confirmation received straight away and payment has been taken from my credit card. I’ve now several days later had an email from them saying it was a misprice and giving me the chance to either purchase the item for £5300 or to cancel the order and receive a full refund.

Their T&Cs seem like a set of generic ones (googling them throws up hundreds or retailers with the same terms) - which I think are a 'Off-premises (doorstep) consumer goods, services and digital content terms and conditions' which can be purchased from somewhere like Thomson Reuters Practical Law website.

These say:
How we will accept your order. Our acceptance of your order will take place when you complete the checkout process and pay for your order, at which point a contract will come into existence between you and us.

They have one T&C covering mispricing which states
What happens if we got the price wrong. It is always possible that, despite our best efforts, some of the products we sell may be incorrectly priced. We will normally check prices before accepting your order so that, where the product's correct price at your order date is less than our stated price at your order date, we will charge the lower amount. If the product's correct price at your order date is higher than the price stated to you, we will contact you for your instructions before we proceed with your order. If we accept and process your order where a pricing error is obvious and unmistakeable and could reasonably have been recognised by you as a mispricing, we may end the contract, refund you any sums you have paid and require the return of any goods provided to you.

In my view it wasn’t an obvious and unmistakeable pricing error (for example where they get the decimal point wrong and sell something for £500 instead of £5000). During a January sale I think it’s reasonable items could be heavily discounted (~35% in this case). They were also called before placing the order to confirm some details over the size and finish, and the price (the one I paid) was confirmed by their staff over the phone.

I plan to write to them to state that I consider we have a contract and I want them to uphold their end by supplying the item to me.

But other than getting a refund, do I have any other options? I’ve seen mention of small claims court for ‘specific performance’ and ‘loss of bargain’ but is that viable?

[R0b]

Hi Sam,

Can you provide the website link for the supplier? It's difficult to give much assistance without seeing the full terms and conditions though I appreciate you've singled out what you might think is relevant to your issue, there could, however, be something else contained in there which doesn't give you any recourse.

Once you've posted it up I'll have a look and either myself or others will comment further.

've tagged des8 too so he can give his thoughts.

[sam1781]

Hi Sam,

Can you provide the website link for the supplier? It's difficult to give much assistance without seeing the full terms and conditions though I appreciate you've singled out what you might think is relevant to your issue, there could, however, be something else contained in there which doesn't give you any recourse.

Once you've posted it up I'll have a look and either myself or others will comment further.

've tagged des8 too so he can give his thoughts.

Hi. It was nest .co .uk

[des8]

Hi there
Well you have picked up on their weak point.
Firstly you need to show there was a contract. This is fairly easily substantiated as there T&Cs admit when the contract is struck is when you pay and sec 7.8 then confirms you own the goods when they have received payment.
To void that contract because of a pricing error they need to show the error " is obvious and unmistakeable and could reasonably have been recognised by you as a mispricing,"
IMO you have a case going forward, but your first step is a formal letter requesting they honour the contract as you thought this was a genuine price, due to it being the time of year that companies reduced prices.
Be aware that court cases are a bit of a lottery, and what seems certain to us may be seen in a different light by a judge!

[sam1781]

Hi there
Well you have picked up on their weak point.
Firstly you need to show there was a contract. This is fairly easily substantiated as there T&Cs admit when the contract is struck is when you pay and sec 7.8 then confirms you own the goods when they have received payment.
To void that contract because of a pricing error they need to show the error " is obvious and unmistakeable and could reasonably have been recognised by you as a mispricing,"
IMO you have a case going forward, but your first step is a formal letter requesting they honour the contract as you thought this was a genuine price, due to it being the time of year that companies reduced prices.
Be aware that court cases are a bit of a lottery, and what seems certain to us may be seen in a different light by a judge!

Thanks for the advice. I will write to them first asking to honour the contract. If I do need to pursue the court option which piece of legislation would apply to include in the letter before action? Is there a particular section in the consumer rights act 2015, or is the breach of contract something covered under common law?

[R0b]

Condition 3.1 of the terms sets out when a contract is made. The way I read condition 3.1 is that as soon as come to the end of the checkout process and hand over your payment information then a contract is entered into. I suspect that was not the intention by the company and it could be argued that a contract is entered into when the funds reach their account, though it isn't really that clear and in circumstances where it is ambiguous and the term can mean more than one thing, then a court would construe the term that is most favourable to the consumer.

As for Condition 15.4 which is what you refer to in your previous post, I am not entirely sure they can rely on this as not accepting your order or getting out of the contract. First of all, Condition 3.1 is not subject to any other terms of the contract and secondly, within Condition 15.4 it says they will check the prices before accepting your order but I'm not sure how they can reject your order when the contract is entered into as soon as you complete the checkout process. If your order confirmation gave you an order number (in accordance with Condition 3.3) then that to me would be further evidence that the order is accepted and a contract is formed.

The terms and conditions are not as clear as they should be and as you validly point out, you saw the price and you thought it could have been a bargain due to January being the month and therefore a knock down price due to sales.

If they continue to refuse to honour your order then your only option may be to go to court and fight this out. If you have home insurance then you might be able to make make use of any legal protection that is offered as part of the package. Otherwise you will have to go about it yourself and claim breach of contract had it been performed. In other words, you claim for the difference between what you paid and the price as suggested by the company.

Be careful about accepting a refund of what you've paid as that may be construed as you accepting their offer to refund in full and final settlement of the matter. You would be wise to spell out in your letter that you expect them to honour the purchase otherwise you consider their refusal as a repudiation of the contract (this is where one party makes the other aware that they will not perform their obligations under the contract) and in which case you should seek a full refund as partial payment and reserve the right to bring an action for the recovery of the remaining sums for breach of contract.

[sam1781]

Condition 3.1 of the terms sets out when a contract is made. The way I read condition 3.1 is that as soon as come to the end of the checkout process and hand over your payment information then a contract is entered into. I suspect that was not the intention by the company and it could be argued that a contract is entered into when the funds reach their account, though it isn't really that clear and in circumstances where it is ambiguous and the term can mean more than one thing, then a court would construe the term that is most favourable to the consumer.

They've taken my money (I logged into my online banking and the payment has cleared) so that seems like further confirmation that we have a contract

If your order confirmation gave you an order number (in accordance with Condition 3.3) then that to me would be further evidence that the order is accepted and a contract is formed.

Yes order number was included in the confirmation email I received

If they continue to refuse to honour your order then your only option may be to go to court and fight this out. If you have home insurance then you might be able to make make use of any legal protection that is offered as part of the package. Otherwise you will have to go about it yourself and claim breach of contract had it been performed. In other words, you claim for the difference between what you paid and the price as suggested by the company.

Be careful about accepting a refund of what you've paid as that may be construed as you accepting their offer to refund in full and final settlement of the matter. You would be wise to spell out in your letter that you expect them to honour the purchase otherwise you consider their refusal as a repudiation of the contract (this is where one party makes the other aware that they will not perform their obligations under the contract) and in which case you should seek a full refund as partial payment and reserve the right to bring an action for the recovery of the remaining sums for breach of contract.

I will contact them today - this has been a great help. Out of interest the particular item I purchased comes in several different finishes and looks like the one I ordered is a more expensive finish. Would it be worth being reasonable and offering to accept the same item but in a cheaper specification? I had thought that if it made it to court it means I've minimised my loss and shown willing to negotiate with them first.

[R0b]

I will contact them today - this has been a great help. Out of interest the particular item I purchased comes in several different finishes and looks like the one I ordered is a more expensive finish. Would it be worth being reasonable and offering to accept the same item but in a cheaper specification? I had thought that if it made it to court it means I've minimised my loss and shown willing to negotiate with them first.

That's a decision for you to make and if you think it would help resolve the situation and you are happy to accept a lower specification then by all means suggest that and see what they come back with. It also assists you if you did go to court and you can show that you were prepared to accept a lower specification in an attempt to resolve matters without the need to issue legal proceedings.

Section 69 of the Consumer Rights Act 2015 also confirms that if a particular term has several meanings then it is to be construed in favour of the consumer (see link below).

http://www.legislation.gov.uk/ukpga/...ion/69/enacted

[sam1781]

Out of interest is 'specific performance' of the contract worth pursuing? Or is request for 'expectation loss' more appropriate?

[R0b]

Specific performance is what is known as an equitable remedy and it is the court's discretion as to whether it should make an order to that effect. The general rule is that specific performance would be applied where damages are not considered to be an adequate remedy. For example,a court might order specific performance where the contract is unique and there is no substitute available in the open market, something like a custom-made product or an extremely rare car that is seen to appreciate in value.

You should also be aware that an application for specific performance would leave you open to legal costs if you lose because you wouldn't be claiming damages and is unlikely to fall within the small claims track, unless perhaps you claimed damages as the alternative in which case the court might allocate it to the small claims track.

But in reality, I don't think your case qualifies for specific performance when damages would be an adequate remedy.

[sam1781]

Thought it would be useful to provide an update. I wrote to the company pointing out that I understood a contract had come into existence as per their terms and set out the reasons why I didn't believe the misprice to have been an obvious error. They've agreed and will be sending me the item I ordered.

Thanks for the advice.

[Amethyst]

Well done and good on them for accepting they were wrong too.

[des8]

Congratulations and thanks for the update