Online Misprice - Purchase sent then recalled

[u38966]

Morning folks, bit of a lurker but not a poster. However I'd like the thoughts of you guys on a slightly unusual issue I have.

On 15/07 I bought an item online from Amazon in their Prime Day sale from the Warehouse - as New. It wasnt to be delivered until 22/07, however on 16/07 an offer came up for a brand new product elsewhere at the same price, with warranty etc I thought that would maybe be a better bet so I ordered it. However knowing the internet and retailer I thought I would leave both orders until the second order was agreed, dispatched and I could confirm I was getting it. On 17/07 I got confirmation the order was accepted and then a dispatch email, shortly after I received an email from UPS confirming the delivery date and tracking, the funds were taken from my account at that time. Checked it was on its way and cancelled the Amazon order as I didn't want the cost or hassle of returning something which is quite large. Its quite an exciting purchase for me and my kids so I took the day off on 18/07 and waited in for the delivery, got confirmation it was out for delivery in the morning but when I checked at lunchtime the UPS site stated the sender had put a hold on it, then a few minutes later it was being returned to sender. Seemingly this was a misprice, although it was the same price as the item I was buying from Amazon and given the Prime day deals and offers around it wasn't an obvious misprice in my opinion. I've since found out the company recalled a few orders but also allowed a few through with deliveries continuing up to yesterday 23/07, they also continued to fulfill orders in their store up to 23/07 which were ordered on 16/07 for click and collect. The response to me when I called is that ALL orders are being cancelled and recalled which doesn't seem to be the case.

My question is, where do I stand in that I thought I done everything right by waiting until I knew the purchased item was being dispatched and being delivered before cancelling my other order, but now due to this problem I am left with neither item. They have now confirmed the error but wont deliver the item and the only offer is a refund of what I paid which I dont think is acceptable. I am sitting here with neither item and am a full day holiday down due to their "error". Just wondered if I have any comeback with them. The T&C's are here for the company and they are a BIG company. I think the section applicable is Section 10? https://www.microsoft.com/en-gb/storedocs/terms-of-sale

I should add the item is still showing on my MS account as mine with serial number and warranty info, and prior to me contacting them I had no cancellation email, phonecall or anything. I still havent other than me contacting their customer service.

Appreciate your time and opinion.

[R0b]

The problem for online retailers relying on pricing errors is that it's not always easy to show that the pricing error was obvious. The fact that you saw the price on Amazon Prime Day (which if I recall ran from 15th to 16th July) where there are discounted deals to be had within a short window of time, is likely to assist you in arguing that there was no such pricing error because it was plausible to believe that the goods were reduced in line with Amazon Prime Day.

Another point of discussion is whether or not that clause 10 is actually considered an unfair term in relation to consumer purchases. The MS terms don't actually specify when the contract has been formed, rather it refers in a couple of sections to the placing of an order. You could argue that upon placing the order and then MS accepting it through confirmation of the order or indeed at the point of despatch, the contract has been formed.

By MS reserving the right to unilaterally cancel the order or purchase (which arguably extends to deliveries in flight) even after the contract has been formed, that might be considered unfair under the Consumer Rights Act 2015. The Competition and Markets Authority provided detailed guidance on the use of unfair terms (click here), one of those being unequal cancellation rights which you can find at the start of page 94 of that guidance but there may be other points of argument about the clause being unfair.

Have you got the necessary evidence to prove that you placed the order within the Amazon Prime Day window?

What do you want from MS to resolve the problem?

[u38966]

The problem for online retailers relying on pricing errors is that it's not always easy to show that the pricing error was obvious. The fact that you saw the price on Amazon Prime Day (which if I recall ran from 15th to 16th July) where there are discounted deals to be had within a short window of time, is likely to assist you in arguing that there was no such pricing error because it was plausible to believe that the goods were reduced in line with Amazon Prime Day.

Another point of discussion is whether or not that clause 10 is actually considered an unfair term in relation to consumer purchases. The MS terms don't actually specify when the contract has been formed, rather it refers in a couple of sections to the placing of an order. You could argue that upon placing the order and then MS accepting it through confirmation of the order or indeed at the point of despatch, the contract has been formed.

By MS reserving the right to unilaterally cancel the order or purchase (which arguably extends to deliveries in flight) even after the contract has been formed, that might be considered unfair under the Consumer Rights Act 2015. The Competition and Markets Authority provided detailed guidance on the use of unfair terms (click here), one of those being unequal cancellation rights which you can find at the start of page 94 of that guidance but there may be other points of argument about the clause being unfair.

Have you got the necessary evidence to prove that you placed the order within the Amazon Prime Day window?

What do you want from MS to resolve the problem?

Hi Rob

Thanks very much for this. You are spot on the Prime Day deals were from 15th to 16th July. I've got the emails from Amazon confirming my order on 15th at £269, I then have my order from MS on 16th for £269.99 I have the order confirmation on 16th, the order complete and dispatch note from 17th with the UPS tracking details and the emails from UPS confirming delivery date, address etc at 16:05 on 17th and my subsequent cancellation of the Amazon order at 17:20 on 17 (after I got home and had the confirmation etc). I've also got copies of my Credit Card statement with the funds being taken from the card on 17th. So I've got lots of info and emails which are date and time stamped, showing the timeline of what I done etc. I wasnt sure if the MS terms covered them completely and they could essentially do whatever they want right up to the point that the UPS guy puts the box in my hand, but that does seem incredibly unfair and unreasonable.

All I wanted was for MS to supply the item as promised at the amount I paid. If they are unwilling then I was thinking of invoicing them for the difference between the cost to buy now and the cost I paid AND adding in the costs of taking a holiday, the amount of time contacting them etc. However all I really want is the item delivered at the price promised that I waited in for on Thursday! The rest of it I was willing to incur to receive the item so the only reason for billing them for it would be that they didnt fulfil their end of the contract.

I've honestly never heard of a company recalling a delivery which is on a van out for delivery at the time.

Your answer is really appreciated, so you think its worth approaching them on the basis you suggest. Cant believe I cancelled the Amazon order, but to be honest I thought I was safe when the package was halfway up the A1 at the time!

Thanks again

[R0b]

Obviously the only way of testing those terms would be to bring it before a judge in court and make that argument. It's not unknown for companies to recall deliveries where they've been despatched based on incorrect pricing.

Argos was one of the first companies to suffer this problem and they learnt from that as have others. Now most online retailers' terms will say that the contract is only formed when the goods have been despatched - this allows the retailers time to verify the order.

Even where the contract terms stipulate that the contract has been formed upon despatch, retailers will no doubt to continue to stop the delivery mid-flight and have it recalled, probably for two reasons:

1. The hope that many consumers do not put up a fight and of those that do, the benefits outweigh the risks.

2. Even if there was a brach of contract terms, retailers can void the contract under what is known as contractual mistake. There's 3 types of mistake but the one relevant to you is unilateral mistake i.e. where one party is mistaken as to the terms of the agreement. I'm not going to explain it here but I would suggest you read up on unilateral mistake and I've added a link below to help you (the starting point of unilateral mistake is a little over halfway down the page). Of the 3 requirements to prove this type of mistake, it's requirement number two that causes many headaches because that's not easy to prove when there are surrounding circumstances.

https://www.lawteacher.net/modules/c...ke/lecture.php

If the difference in price is not that great i.e. <£100, then should you issue legal proceedings it's probably likely that MS will just fold and pay you the difference on the basis that it's not commercially viable to defend. Anything above that then they could take a stance but again even if the amount was for £200, the cost of a reasonably experienced lawyer would surpass by providing 2 hours' worth of work so they could still offer to settle albeit not straight away.

Now, having said all of that, the terms you referred to are obviously on the MS website but you placed your order through Amazon. Was there any reference made to the order being subject to those terms because if not, then arguably you could say they don't apply and MS had no right to recall the delivery.

If you can supply a link to the product it would be helpful to do a dummy run of the order.

[u38966]

Obviously the only way of testing those terms would be to bring it before a judge in court and make that argument. It's not unknown for companies to recall deliveries where they've been despatched based on incorrect pricing.
Argos was one of the first companies to suffer this problem and they learnt from that as have others. Now most online retailers' terms will say that the contract is only formed when the goods have been despatched - this allows the retailers time to verify the order.
Even where the contract terms stipulate that the contract has been formed upon despatch, retailers will no doubt to continue to stop the delivery mid-flight and have it recalled, probably for two reasons:
1. The hope that many consumers do not put up a fight and of those that do, the benefits outweigh the risks.
2. Even if there was a brach of contract terms, retailers can void the contract under what is known as contractual mistake. There's 3 types of mistake but the one relevant to you is unilateral mistake i.e. where one party is mistaken as to the terms of the agreement. I'm not going to explain it here but I would suggest you read up on unilateral mistake and I've added a link below to help you (the starting point of unilateral mistake is a little over halfway down the page). Of the 3 requirements to prove this type of mistake, it's requirement number two that causes many headaches because that's not easy to prove when there are surrounding circumstances.
https://www.lawteacher.net/modules/c...ke/lecture.php
If the difference in price is not that great i.e. &lt;£100, then should you issue legal proceedings it's probably likely that MS will just fold and pay you the difference on the basis that it's not commercially viable to defend. Anything above that then they could take a stance but again even if the amount was for £200, the cost of a reasonably experienced lawyer would surpass by providing 2 hours' worth of work so they could still offer to settle albeit not straight away.
Now, having said all of that, the terms you referred to are obviously on the MS website but you placed your order through Amazon. Was there any reference made to the order being subject to those terms because if not, then arguably you could say they don't apply and MS had no right to recall the delivery.
If you can supply a link to the product it would be helpful to do a dummy run of the order.

I dont think I've explained this very well, which is a problem I have a lot.

I initially bought an item on offer through Amazon on Prime Day at £268.41 (including the 20% discount) on Amazon but delivery wasnt for about a week. During the next day Microsoft had an offer on their site and dashboard for the same item at the same price (£269.99 total) but directly from Microsoft store. So I ordered it direct from the Microsoft Store and didnt cancel the separate Amazon order until I was sure the Microsoft order was OK and going through. I waited until Microsoft had dispatched the item and given me tracking before I cancelled my Amazon order. So I did have 2 separate orders but cancelled the Amazon order once Microsoft had confirmed delivery.

I think I will go back to them and challenge as you suggest, the difference is around £90 based on current prices, but I'll read up on the links to the unilateral mistake.

The product is now on the Microsoft website at £429 but it was on for £269 at the time as was Amazon and Amazon is currently around £349. This is it:

https://www.microsoft.com/en-gb/p/xb...%3Aoverviewtab

[R0b]

Sorry, my mistake!

So I think then if the current difference is £90 then yes I think it would be sensible to write to MS and set out the situation and explain that you do not believe they had the right to recall the product because there was no obvious pricing error; £90 on the face of it isn't exactly a huge reduction and you have the likes of Dell who regularly provide discounts on their products upwards of £100, as do Currys/PC World and so do Amazon which can be seen by the fact that Amazon are currently offering £80 less than the MS store price.

Bear in mind that the MS entity is Microsoft Ireland Operations Limited who are based at One Microsoft Place, South County Business Park, Leopardstown, Dublin 18, D18 P521, Ireland. If you receive no luck regarding your letter then you will need to issue legal proceedings to that entity and servce the claim form yourself to that address.

As the MS entity is not in England or Wales there are a few formalities you would need to be aware of but there's no need to mention that unless you get to that stage.

Have a go at contacting MS through their online support or email or other method and see what response you get. If you need a second pair of eyes post up your draft letter on here and one of us will comment.

[u38966]

Sorry, my mistake!

So I think then if the current difference is £90 then yes I think it would be sensible to write to MS and set out the situation and explain that you do not believe they had the right to recall the product because there was no obvious pricing error; £90 on the face of it isn't exactly a huge reduction and you have the likes of Dell who regularly provide discounts on their products upwards of £100, as do Currys/PC World and so do Amazon which can be seen by the fact that Amazon are currently offering £80 less than the MS store price.

Bear in mind that the MS entity is Microsoft Ireland Operations Limited who are based at One Microsoft Place, South County Business Park, Leopardstown, Dublin 18, D18 P521, Ireland. If you receive no luck regarding your letter then you will need to issue legal proceedings to that entity and servce the claim form yourself to that address.

As the MS entity is not in England or Wales there are a few formalities you would need to be aware of but there's no need to mention that unless you get to that stage.

Have a go at contacting MS through their online support or email or other method and see what response you get. If you need a second pair of eyes post up your draft letter on here and one of us will comment.

Very much appreciated Rob.

Those links above are great, although I'm not sure I understand half of it!

Thanks again and I'll let you know how it goes.