Loss of Bargain clarification

[countryman]

From Argos, via their eBay outlet, I purchased and paid for a digital TV recorder. They shipped it but their courier lost the item. They do not have any more left and so are simply wanting to give me a refund. To buy this item elsewhere (at the lowest cost to mitigate their loss) will incur me in £100 additional expense.

I maintain that this is a 'Loss of Bargain'.

They maintain that because they have no control over their couriers then it is not a 'Loss of Bargain'. That seems rather unfair to me.

Who is right, please ?

[Caspar]

Re: Loss of Bargain clarification

You may not like this,but the way I read the definition below puts them in the right - sorry!





loss of bargain rule


Definition


Legal rule that damages paid to the aggrieved party in a breach of contract case should be sufficient in amount to put that party in a position it would have been had the breach not occurred.

[EXC]

Re: Loss of Bargain clarification

I would agree with Casper.

[countryman]

Re: Loss of Bargain clarification

But surely the position I would have been in if the breach had no occurred would be that I physically had the item in my possession that Argos contracted to supply.

[pompeyfaith]

Re: Loss of Bargain clarification

That maybe the case,but the chances of argos upping there offer are zilch,so the only option open to you is small claims court.

So the question is would a judge see it your way, I very much doubt it as you have been offered a full refund of the cost of the goods.

Argos knows this and it is why they will not budge.

[countryman]

Re: Loss of Bargain clarification

This seems to suggest otherwise.

(c) Cases which usually come within the “successful-transaction” method of assessment include cases of non-acceptance of goods, under s.50 of the Sale of Goods Act 1979, cases of non-delivery of goods, under s.51 of the Sale of Goods Act 1979, damages for breach of warranty under s.53 of the Sale of Goods Act 1979 , as well as cases involving loss of profit, loss of a bargain, and loss of opportunity. In each of these cases the court is measuring the expectations of the innocent party under the contract, and compensating that party for the difference between what he/she might have expected to receive, and what in fact was received.

my bold

Taken from insitelaw.

[basa48]

Re: Loss of Bargain clarification

This seems to suggest otherwise.

what he/she might have expected to receive, and what in fact was received.

my bold

Taken from insitelaw.

So what you expected to receive was worth / cost you £X. What you in fact received was worth £0.

The difference being £X which is what you have been offered as compensation.

[Caspar]

Re: Loss of Bargain clarification

3.3 Risk of loss and damage of products passes to you on the date when the products are delivered or on the date of first attempted delivery by us.

Taken direct from Argos Terms and Conditions when ordering online. You must have agreed to these, whether or not you actually read them. It seems pretty clear to me. I think they're on strong ground. In fact, it could be argued from the above clause they don't even HAVE to offer you a refund.

[pompeyfaith]

Re: Loss of Bargain clarification

Well at the end of the day we can only offer you advice whether you take that advice or not is at your discretion.

but as above it appears that argos have this wrapped up in there terms and conditions which if this proceeds to a small claims court they most certainly will use.

[countryman]

Re: Loss of Bargain clarification

3.3 Risk of loss and damage of products passes to you on the date when the products are delivered or on the date of first attempted delivery by us.

Taken direct from Argos Terms and Conditions when ordering online. You must have agreed to these, whether or not you actually read them. It seems pretty clear to me. I think they're on strong ground. In fact, it could be argued from the above clause they don't even HAVE to offer you a refund.

i) They were not delivered

ii) no attempt was made to deliver them

therefore 3.3 is not applicable.

I really can't believe that there isn't any case law on this....

[countryman]

Re: Loss of Bargain clarification

So what you expected to receive was worth / cost you £X. What you in fact received was worth £0.

The difference being £X which is what you have been offered as compensation.

But there is a difference in interpretation as well. What I expected to receive was a digital video recorder. Just handing me back my money is not what I expected.

Being devils advocate.

[Caspar]

Re: Loss of Bargain clarification

All delivery times quoted are subject to stock availability (also Argos Online T&C's)

7.5 Notwithstanding the above, subject to Section 7.1 Argos' aggregate liability (whether in contract, tort or otherwise) for loss or damage shall in any event be limited to a sum equal to the amount paid or payable by you for the product(s) in respect of one incident or series of incidents attributable to the same clause. Also taken from Argos online T&C's.

It all seems clear. Argue all you like, as already said all we can do is offer advice. Ultimately you have to decide for yourself where you take this, but if I were you I'd accept the refund.

[pompeyfaith]

Re: Loss of Bargain clarification

Yup because weighing it up the risk is too big to take to a court, as they say the judges lottery and one i would not undertake without legal advice.

[Guest]

Re: Loss of Bargain clarification

This is not as clear cut as has been presented by certain posters here.

First of all, terms and conditions are not binding if they are unfair, or capable of being unfair. For example, any contractual term which seeks to exclude liability for negligence is unenforceable at law.

Secondly, there are various ways in which a claimant may be compensated for loss and the claimant is entitled to choose whichever form of compensation he feels is most appropriate. Thus it is not up to Argos to choose that the most appropriate compensation is simply to return the money and treat the contract as unwound, irrespective of what their terms and conditions state.

In a claim for expectation loss or loss of bargain, the claimant is seeking to be put in the position as if the contract had been performed. In this case, there are two bases of assessment available. These are cost of cure and difference in value. The fact that the innocent party did not receive the bargain for which he contracted is itself a loss and damages may be claimed.

The point of damages are to compensate the injured party for any consequences of the breach of contract. The underlying principle is to put the injured party financially as near as possible, into the position he would have been in had the promise been fulfilled.

Argos may not simply treat the contract as unwound when it is quite plain that the contract had been fairly entered into, the money had been paid and the goods shipped, albeit by agents of Argos and not delivered.

See post #2 here Loss of Bargain advice please! - Legal Beagles Consumer Forum

[Caspar]

Re: Loss of Bargain clarification

I take your point, and have read the post in the other thread. The OP may have something to go on, but personally I still wouldn't rate his chances and think he could lose more money pursuing it than through any loss of bargain.

It has to be the OP's decision at the end of the day though, and I genuinely hope for the OP's sake that you're right!