Loss of Bargain clarification

[Guest]

Re: Loss of Bargain clarification

It is a straightforward breach of contract claim for damages under loss of bargain.

countryman, you should issue a Letter Before Action giving Argos 14 days to compensate you.

[countryman]

Re: Loss of Bargain clarification

Thank you very much for the excellent brief. I have done that today. Will let you know how it goes.

[Caspar]

Re: Loss of Bargain clarification

Good luck - I hope I'm proven wrong!

[righty]

Re: Loss of Bargain clarification

The Argos T's & C's have never been tested so are meaningless until they are

They (through THEIR carrier) LOST the goods AND the goods are NOT delivered until they are ACTUALLY delivered simples. The purchaser does not accept responsibility for the Argos delivery agent & until they are delivered, no matter what their T's & C's might claim Argos are liable for their agents negligence. In otherwords the T's & C's DO NOT mitigate their negligence

In the matter of compensation I consider that based on THEIR negligence, you DO have a case to demand the extra it will cost for you to obtain the SAME item from elsewhere AND in my opinion a court may be sympathetic to your claim

[countryman]

Re: Loss of Bargain clarification

In the spirit of the forum and with his agreement I am posting below a PM thread that I have had with cetelco.

PM1 ...


Originally Posted by countryman
I'm wondering if any further discussion should be via PM?

I will be taking Argos to court but wanted to know if they did have a get out with their Ts & Cs. Their letter in reply to my Letter before Action said that as they have attempted to deliver the goods but circumstances beyond their control (ie carrier lost the item...stolen?) then the contract cannot be fulfilled.

...that where products are lost or stolem or not delivered for reasons beyond their reasonable control then they do not accept liability for consequential loss....that the failure of the product to reach me is not as a result of negligence on their part. "In essence, the contract is frustrated".

I then did a bit of Googling to better understand what conditions would render a contract 'frustrated'.

Rgds

CM

Cetelco's reply...

I think it should be on the forum, so that others may learn from it too.

They are clutching at straws. The contract cannot be frustrated since one may presume that Argos will have more of the particular item that you ordered. Why did they not just send another?

A contract cannot be frustrated because it is difficult to perform. It must be impossible to perform and for reasons unforseen.

It is simply not plausible that this is the first time that this has ever happend to Argos, or that they could not just replace the item.

You are not claiming consequential loss, but expectation loss. The two heads of loss are not the same and the fact that they are confusing the two indicates further that they are in over their heads with this.

Issue the claim, should they not agree to compensate you for your loss.



I then issued a claim against Argos and below is an extract from their filed defence...

Originally Posted by countryman

Thought I'd give you an update. I have issued a claim against Argos. They have filed this defence (I have left out the factual stuff such as me purchasing an paying etc).

4. The claimant did not receive the product from DHL. Upon enquiries being instigated by DHL it was initially believed they had lost the product and then suspicion began to arise that the product may have been stolen whilst in the possession of DHL.

5 Claimant seeks to hold defendant liable for the loss or theft of goods by a third party over which the defendant has no control. Defendant provided claimant witha refund of the purchase price and associated costs as per stated Terms and Conditions. It was not possible to issue a replacement item to the claimant as none were left. (I did see a post on one of the forums alleging that this item was still available in some branches but can not find the reference)

6 Defendant maintains that the parties acted in good faith and that the contract is frustrated. Argos cannot reasonably control the activities of a courier such as DHL and their staff

7 Defendant denies the claim that the loss/theft by a third party constitutes a loss of bargain

8 As a result of the above, defendant denies liability in the claim.

That's it in a nutshell. If you have any comments then they would be very welcome.

......
And Cetelco kindly replied ...

What is the product that you had bought? My comment ..It was a Hitachi HDR165.

The contract is not frustrated just because Argos say it is. A contract is not frustrated because it is difficult or expensive to execute and for it to be thus, the supervening event must be both unforseeable and beyond the control of both parties.

Deliveries get lost and stolen all the time. Argos know this and therefore it cannot be unforseeable. In addition, Argos have access to huge stocks of products. I am astonished that they are attempting to claim that they have no more of a particular product.

You are not seeking to hold Argos liable for the conduct of a third party, but are simply exercising your common law right to seek compensation for loss. Your loss in this instance is the loss of a bargain. Whether or not Argos like it, they failed to deliver the goods that you had bought and paid for. You did your bit and now you are entitled to be compensated because they breached the contract, by not doing their bit. This is basic, first year law-student stuff and Argos are making fools of themselves attempting to defend it.

None of this is confidential and therefore it should be posted on your thread for all to see and learn from.

Argos and many other retailers do this all the time and only by taking them to court will they learn that we are not going to stand for it. By posting this on your thread, we can educate thousands, many of whom may have been treated in the same way you have been.
Cetelco

Regarding availability, Argos claimed that they had no more available. They might not have had availability at this particular ebay outlet but there is every possibility that they might have had the item still available in their store network but declined to investigate this.

[pompeyfaith]

Re: Loss of Bargain clarification

Yup good luck countryman and yes we give advice which can be either way but whether you accept that advice is your decision

[countryman]

Re: Loss of Bargain clarification

Case dismissed. The judge seemed to have already reached his decision as within a couple of minutes I could tell listening to his words that that would be the outcome. To try and give his reasoning..which centred round Section 7 of the SoG Act...his interpretation of 'perish' was that that was what had happened by dint of DHL losing the package.

The only possible point that I might have been able to argue was if Argos had given an incorrect address to DHL. Now, when I tracked the package, the DHL website did, in fact, say 'Insufficient address' or words to that effect. Had I picked up on that and used it to support my case? Maybe...but possibly Argos might have given the correct address to DHL and have proof that they did so...and so a tenuous point at best.

Will be having strong words with Which Legal over this as they reckoned that I had a case as well.

Bit annoyed as it has broken my faultless record of never losing a case.

[stek2011]

Re: Loss of Bargain clarification

Hi Countryman,

New to the forum - but have a similar case to pursue over next few months - albeit all due to failures by the retailer to honour the deal.

Found your thread really interesting as there don't seem to be *that* many examples of Loss Of Bargain claims around online to refer to...

Just curious on a couple of things from your experience though if you could offer some pointers?

1) How much detail did you put in your LBA as to what you feel your case would be if it goes to court? Can you recommend any good templates?

2) Did you handle the claim yourself or appoint a solicitor?

3) Did you purchase the alternative product first & then try to claim the difference, or did you just demonstrate the equivalent products' market price?

Thanks in advance - hope these aren't too dim as far as questions go. Learning on my feet here (very rapidly!)

Thanks,
Steve

Case dismissed. The judge seemed to have already reached his decision as within a couple of minutes I could tell listening to his words that that would be the outcome. To try and give his reasoning..which centred round Section 7 of the SoG Act...his interpretation of 'perish' was that that was what had happened by dint of DHL losing the package.

The only possible point that I might have been able to argue was if Argos had given an incorrect address to DHL. Now, when I tracked the package, the DHL website did, in fact, say 'Insufficient address' or words to that effect. Had I picked up on that and used it to support my case? Maybe...but possibly Argos might have given the correct address to DHL and have proof that they did so...and so a tenuous point at best.

Will be having strong words with Which Legal over this as they reckoned that I had a case as well.

Bit annoyed as it has broken my faultless record of never losing a case.

[countryman]

Re: Loss of Bargain clarification

Hi Steve

Answering in reverse

3/ I went and bought the item from an alternative source and claimed the difference. I made sure that I went for the next cheapest after Argos...otherwise their defence could be that you haven't tried to mitigate their loss.

2/ Myself but I did speak to Which Legal.

1) Just said how it was. No template used.

Which Legal think that the judge was wrong and I can see their reasoning. They argued that his interpretation of perish was incorrect. They pointed me at Remedies: Breach of Contract which makes very good reading.

Good luck and let us know how you get on.