Introducing Len Dastard - your consumer law heavyweight
My name is Len Dastard. No, that's not my real name, but a pseudonym for the purposes of Bitterwallet, to keep my real identity a mystery.
During the 1970s, I was a masked Mexican wrestler based in Veracruz, a vicious loner who fought under the name El Bastardo - Murderer of Dreams. That's not true either, but merely part of Len Dastard's fictional backstory.
What is absolutely true, and the reason I'm writing for Bitterwallet every week, is that I'm a full-time litigation executive; I deal with contract disputes for a living.
Every week I'm hoping to answer questions and offer advice about consumer law, using practical examples from HotUKDeals, Bitterwallet readers and elsewhere - all to help you avoid the pitfalls and get a better deal.
An interesting dilemma cropped up on the HotUKDeals forum yesterday following this cracking deal from Marks & Spencer - a 26" Sony Bravia HD-ready TV for under £100 - reduced from £299 - with five years guarantee. Forum member eca07mc wanted to know where they stand in relation to the point of when the contract is formed.
There are four elements to a binding contract; offer, acceptance, consideration and intention. If all of these elements are in place, then a legally binding contract has been formed. This rule also applies to online contracts, but the obvious difference is that we're not contracting in person.
Whenever you're contracting online, you should be aware of the retailers' Terms and Conditions before placing your order. You wouldn’t (or at least, you shouldn’t) enter in to a contract in person without knowing the terms, so don't do it online either.
In this particular case, at which stage of the process is the contract formed? When the item has been dispatched, according to Marks & Spencer's Terms and Conditions:
Please note that completion of the online checkout process does not constitute our acceptance of your order. Our acceptance of your order will take place only when we dispatch the product(s) or commencement of the services that you ordered from us.
However, the forum member actually received an email from Marks & Spencer to confirm that the television had been dispatched, yet received an email within a few minutes to advise that the television could not be sent.
Marks & Spencer could argue that despite sending this email, the item technically wasn’t dispatched - if it was the member would have received his television. The retailer could also argue that the contract has been frustrated in that they do not have the product to sell - the reason being is that an unforeseen high demand could leave the item to decrease in stock quite rapidly. I'd suggest they'd be on very dodgy ground citing this as a defence.
Sadly, to bring a small claim against Marks & Spencer would probably be an expensive point of principle, so I'd suggest the following options be explored as a consumer:
• Attempt to rely on another point in the terms:
For certain products and services (for example, flowers and food) we reserve the right to substitute alternative products or services of equal or greater quality and value at no extra cost to you if we experience supply difficulties.
Although, M&S could argue that large electrical items don't fall within their definition of "certain products and services".
• Send a letter to Marks & Spencer outlining your disappointment in the way that they have handled your order and not complying with their terms relating to acceptance.
I'd love to don the mask of death one more time and take them down with a little move I call the Hurricanrana, but sometimes it just isn’t proportionate to bring a claim against someone - it's very difficult to show loss in these instances.
Got a consumer law-related query? Send them to me, Len Dastard, at hello[@]bitterwallet.com.