Help: Mobile mis-price, seller is disconnecting phones, demanding they be returned

[glorya]

Hi,

Desperate mum with childs present held at ransom

Please see the following link, any advice is appreciated...if you need me to extract the information you need just let me know.

https://www.hotukdeals.com/deals/iph...al-383-3247724

Regards

Glorya

[Amethyst]

Okay so you received the phone and the contract was for £17 per month airtime/data with EE and 'free' handset included ( but the handset was meant to be a £460 odd upfront payment and they'd made a pricing error ) They're now refusing to connect it to the EE network and threatening debt collection and credit file damage if you don't return the phone ?

Do you have the email dispatch confirmation / the contract and any emails/letters they have sent requesting return please.

Then I'm sure someone will be able to see what the actual position is.

HDUK peeps come across this kind of issue quite a lot.

Advert as purchased




Advert as it is now



Terms
affordable mobiles terms.pdf

Terms:


8. How the Contract is Formed Between You and Us

8.1. After you place an order, you will receive an e-mail from us acknowledging that we have received your order. However, please note that this does not mean that your order has been accepted. Our acceptance of your order will take place as described in clause 8.2, and will be subject to you passing our security checks from time to time which may include, without limitation, requiring proof of your address and identity.

8.2. We will confirm our acceptance to you by sending you an e-mail that confirms that the Goods have been dispatched (Dispatch Confirmation). The Contract between us will be formed when we send you the Dispatch Confirmation. The Network Contract will be formed when we connect the Contract Phone or SIM Only to the Network, which will be immediately prior to us sending the Dispatch Confirmation.

8.3. If we are unable to supply you Goods, for example because those Goods are no longer available or because of an error in the price on our site as referred to in clause 13.5, we will inform you of this by e-mail and we will not process your order. If you have already paid for the Goods, we will refund you the full amount as soon as possible.

[glorya]

Hi,

Yes we got the dispatch email etc, there are a few examples in the thread, i will see if I can link to them.

Thanks

[glorya]

Just to add, they sent the phones out, some people received the phones and the sims are active with EE.

Otheres had the phone delivery stopped mid delivery and they were returned to seller, without the buyer cancelling the sale.

[stef232]

Just to add -

The Majority of buyers, me for 1 purchased the deal due to the phone being advertised as FREE with no upfront cost. There was no mention of a £450 upfront cost, i'm unsure where that information has come from .

Also AM have stated that they under no circumstances will be connecting ANY EE sim contracts leaving some customers with phones they are unable to use with the supplied contract SIM,

EE have stated they are unable to activate SIMs / contracts this should be done by Affordable Mobiles.

[Amethyst]

Have you received the phone ? Or are you asking generally on behalf of HDUK users who ordered?

The £400 upfront price is the corrected pricing.

[stef232]

[QUOTE=Amethyst;n1471852]Have you received the phone ? Or are you asking generally on behalf of HDUK users who ordered?



Thanks

[R0b]

According to the terms and conditions, it would appear that a contract was formed, as pointed out by Amethyst, the contract is formed when the dispatch confirmation is sent.

Now, I'm sure AM will argue that this was a pricing error (as per clause 8.3) and therefore the contract is void. However, when you read clauses 8.3 and 3.15 together, it suggests that where AM discovers the pricing error and is still being processed, then it is entitled to withhold the order and inform you as to your options which, in this case, is to pay the correct price or obtain a refund. But the moment that AM issue a dispatch confirmation, clause 8.3 makes it plainly clear that the contract is formed.

In my view, AM cannot unilaterally revoke the contract otherwise it will be in breach of contract, if not repudiatory breach i.e. a fundamental breach which you can choose to accept and then terminate the agreement and seek damages against AM based on the expectation of the contract having been fully performed. Indeed, they are in further breach of the terms by not activating the SIM card to the network, which may also be considered a repudiatory breach.

I will caveat the above by saying that it might be possible for AM to argue that even though the contract was formed, this was clearly an obvious mistake and you should have known about it, meaning they can avoid the contract and you are put in the position before it was formed. I reckon AM might be on shaky ground with this one since it is well published that Apple have been reducing the cost of their iPhones due to slowing sales (see this link here) so it's not unreasonable to think that price cuts have applied to the UK too (Brexit and all). To add to that, mobile phone retailers have year-round promotions some of which are for very short periods, others last longer and so it is not to unrealistic to think that the offer you saw was within reason. Only a court can determine if you 'should have or ought to have known' this was incorrect.

A couple of minor points to finish off:

a. I'm not sure how AM can threaten you with damage to your credit file if, as you say, they haven't activated the SIM card since the contract wouldn't have started yet. Sounds like a lot of bluff to me but if they attempted to report anything adverse on there, I'd have them for breach of data protection for reporting inaccurate data. It might be sensible to confirm in writing that as part of any response to them, that as at today's date, EE have confirmed that the SIM card has not been activated.

b. Assuming those who buyers who had their deliveries stopped mid-way having received the dispatch confirmation, I would think they would have a reasonable prospect of claiming damages for breach of contract as the contract would have already formed. Nothing I can find to suggest they have the right to stop deliveries mid-way.

I guess the question now is whether you want to fight it or prefer not to have the hassle and return the phones to AM. If the latter, I would suggest you get something in writing to say that the whole contract for the phone and SIM card is void and you will incur no liability.

[Helpneeded.]

According to the terms and conditions, it would appear that a contract was formed, as pointed out by Amethyst, the contract is formed when the dispatch confirmation is sent.

Now, I'm sure AM will argue that this was a pricing error (as per clause 8.3) and therefore the contract is void. However, when you read clauses 8.3 and 3.15 together, it suggests that where AM discovers the pricing error and is still being processed, then it is entitled to withhold the order and inform you as to your options which, in this case, is to pay the correct price or obtain a refund. But the moment that AM issue a dispatch confirmation, clause 8.3 makes it plainly clear that the contract is formed.

In my view, AM cannot unilaterally revoke the contract otherwise it will be in breach of contract, if not repudiatory breach i.e. a fundamental breach which you can choose to accept and then terminate the agreement and seek damages against AM based on the expectation of the contract having been fully performed. Indeed, they are in further breach of the terms by not activating the SIM card to the network, which may also be considered a repudiatory breach.

I will caveat the above by saying that it might be possible for AM to argue that even though the contract was formed, this was clearly an obvious mistake and you should have known about it, meaning they can avoid the contract and you are put in the position before it was formed. I reckon AM might be on shaky ground with this one since it is well published that Apple have been reducing the cost of their iPhones due to slowing sales (see this link here) so it's not unreasonable to think that price cuts have applied to the UK too (Brexit and all). To add to that, mobile phone retailers have year-round promotions some of which are for very short periods, others last longer and so it is not to unrealistic to think that the offer you saw was within reason. Only a court can determine if you 'should have or ought to have known' this was incorrect.

A couple of minor points to finish off:

a. I'm not sure how AM can threaten you with damage to your credit file if, as you say, they haven't activated the SIM card since the contract wouldn't have started yet. Sounds like a lot of bluff to me but if they attempted to report anything adverse on there, I'd have them for breach of data protection for reporting inaccurate data. It might be sensible to confirm in writing that as part of any response to them, that as at today's date, EE have confirmed that the SIM card has not been activated.

b. Assuming those who buyers who had their deliveries stopped mid-way having received the dispatch confirmation, I would think they would have a reasonable prospect of claiming damages for breach of contract as the contract would have already formed. Nothing I can find to suggest they have the right to stop deliveries mid-way.

I guess the question now is whether you want to fight it or prefer not to have the hassle and return the phones to AM. If the latter, I would suggest you get something in writing to say that the whole contract for the phone and SIM card is void and you will incur no liability.

Hi.

forgive me if I am wrong but isn’t it the case that if Affordablemobiles want to cancel this contract due to a
“unilateral mistake” that both parties should be returned to where they were before the contract was formed?
i am asking because as it stands, I am willing to let them have the phone back but I am now in a 24 month contract with EE, surely they would have to pay this up, if we are to be returned to where we were before the contract was formed? Or does the Law leave me stuck in a separate contract with EE for 24 Months?

[R0b]

Hello

The sensible answer to your question would be yes, they AM should reimburse you for the value of the 24 month contract since presumably they activated the SIM or in some way notified EE that the SIM should be activated. As I touched upon in my last post, a unilateral mistake voids the contract entirely and each party should be put in the position before it was entered into, so in theory, this is where AM should give you an amount to cover the monthly instalments covering 24 months as you shouldn't be out of pocket due to their mistake.

Claims of mistake requires an understanding of the facts and so it's difficult to tell you the exact outcome because a mistake effectively means there are both innocent parties and the court should do it's best to strike a balance.

If I were in your position, I would be keeping all correspondence in writing and reserve your position about the mistake i.e. at the beginning of your email you say to them something like, "Whilst I accept that AM may have made a mistake as to the pricing of the phone, it was not apparent on the face of it and I honestly believed that the phone package I ordered was correct. My belief is further proven by the fact that AM have already activated the SIM card and I am now into a 24 month contract with EE paying £17 per month."

You could then go on to say that having said that, you are prepared to return the phone on the condition that AM agree to compensate in the sum of £408, being the total cost of the EE SIM contract (preferably by bank transfer within the next 7/14 days), but until then, you will retain the phone and continue paying EE on the basis that there has been no mistake. Of course you could hand the phone back first but then that puts you on the backfoot because you'll need to continue paying EE as the contract is thus valid until otherwise deemed void, and then you will have to chase AM to pay you (which they could refuse and call your bluff).

That's how I would play it out and it may be that they agree for you to keep the phone or they may say that they will pay you instead and in which case you would be best if they arrange collection of the phone so that liability for any damage on its return is a matter between AM and the courier, rather than them chasing you - though be sure to take photos and videos of it's condition in case of a dispute.

Just as an FYI, unilateral mistake is a common law action meaning that AM would need to issue legal proceedings and prove that (1) but for the mistaken term(s), the mistaken party (this is AM) would not have entered into the contract and (2) the non-mistaken party (this is you) should have or ought to have known about it. The courts will determine the second part subjectively and look through the eyes of the non-mistaken party to decide whether you should have known about it based on the evidence before the court.