Consumer wrestler Len Dastard tackles Tesco Entertainment

5 November 2010

Día bueno a usted señores! It is I, Len Dastard, masked consumer champion! A genuine litigation executive here for your consumer bidding! And yes, after one too many goat burritos I am as excitable as a famished chupacabra! I beg you, stop me before I kill again! Aieeeee!

My little joke of course, as I have not killed a man in the ring for many years. Or at all, since my Mexican wrestling alter-ego is completely fictional.

Oh, Tesco. I may be a houseproud pseudo-masked Mexican fighter, but I do not like the way you are brushing this complaint under that massive carpet of yours.

HUKD member Midlandscomic has been in contact with Bitterwallet following this deal, which advertised a DJ Hero 2 Party Pack for Xbox 360 for just £39.70. Here is the screenshot that appeared on the Tesco Entertainment website:

Bitterwallet - Tesco - djhero2screen

Let us first get this point out of the way – yes, I know that is a ridiculous price for this item but it isn’t quite on par with the Argos TV misprice. Midlandscomic placed the order and received the usual email confirmation from Tesco, which clearly stated the product was DJ Hero 2 Party Pack for Xbox 360. Tesco took the money and then sent the item. Contract formed.

When the item arrived it was clear that it wasn’t what was ordered. Tesco had sent the software only and not the advertised item.

The HUKD member emailed Tesco Entertainment about the issue and this reply was received:

Please accept my apologies first of all for the upset and disappointment that was caused when the came you ordered did not arrive with the hardware as you had expected. I can fully appreciate your concerns and would like to offer my sincere apologies.

I understand the description on the website for DJ Hero 2 was unclear at the time you placed your order. This has now been rectified and more information is now showing online.

Unfortunately, we do not stock any hardware for DJ Hero 2 on Tesco Entertainment. I can see at the time you placed your order this product was described on our website as ‘DJ Hero 2 Party Pack’. I completely accept this description could have been better had it specifically stated that this included software only – however we did not advertise this product as including hardware at any stage.

If you are unhappy with the product you have received we can happily accept the item back for a full refund via our freepost address.

By way of an apology, I would be more than happy to add a £3 credit to your account as a gesture of goodwill. Please let me know if you would like me to do this and I will credit this for you as soon as possible.

With the assistance of Bitterwallet, this reply was sent back to Tesco:

Whilst I note the contents of your email I feel that this issue is not getting the attention that it deserves. If I could please address certain parts of your email:

1. "I understand the description on the website for DJ Hero 2 was unclear at the time you placed your order. This has now been rectified and more information is now showing online." To say that the description is “unclear” is an understatement. You (Tesco) advertised a completely different product to the one that you had the intention of shipping.

2. “I completely accept this description could have been better had it specifically stated that this included software only – however we did not advertise this product as including hardware at any stage." I invite you to please run a general search on any gaming retailer website with the very description that you used on your site – "DJ Hero 2 Party Pack". Not at any stage was I made aware that this was software only.

3. “Unfortunately, we do not stock any hardware for DJ Hero 2 on Tesco Entertainment." That is no fault of mine and if you do not stock such equipment I would suggest that more care is taken to ensure that this very scenario cannot happen.

Whilst I have made my feelings very clear I would like to add that Tesco are currently in breach of contract. This transaction has the elements of a legally binding contract in that there is an agreement between us (comprising my offer followed by your acceptance and then my consideration).

By your own Terms the contract was completed once the item had left your warehouse, irrespective of the wrong item being sent the contract was formed upon dispatch. Therefore I find your offer of a £3 credit derisory.

We are yet to receive a reply from Tesco Entertainment.

Tesco may argue that an integral part of a contract is "intention" (as was found in the case of Argos) but I would argue that the cases differ. Tesco have clearly breached the contract here by supplying a different item to that agreed, whereas Argos refused to supply the agreed item.

There is the issue of “loss of bargain” which will be looked at in detail once we have received our reply from Tesco. As a starting point:

Section 51 (3) Sale of Goods Act 1979

Where there is an available market for the goods in question the measure of damages is prima facie to be ascertained by the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered or (if no time was fixed) at the time of the refusal to deliver.

I shall patiently wait in my wrestling spandex until Tesco choose to reply. For the time being – watch this space!

6 comments

  • Paul C.
    Tesco's reply: "£6 credit for the inconvenience caused and sincere apologies once again for any lack of clarity." It is an absolutely fair and just case to champion, though. Tesco have clearly taken money for a product that was never intended to be stocked and should therefore be more dilligent in their listings for future products. The consumer should not have to bear the brunt of their erroneous merchandise lister. Or 'Finest Fat Fingers' as the office calls him.
  • Alexis
    Remedy for breach of contract = actual loss caused. I suggest this is spelled out instead of just describing the offer as derisory. I'm guessing this will be limited to time to send an email, petrol and time to drive to the post office. Probably at most a tenner to be honest.
  • Tom
    Doesn't loss of bargain come into this?
  • Matt
    Is the screen shot at the top accurate? If so i really don't see how Tescos can say 'we did not advertise this product as including hardware at any stage', it clearly says 'double deck' strongly suggesting the 2 turntable decks which come in this pack. Surely that alone is advertising it as a hardware package. Plus calling it 'DJ hero 2 party pack' is that same as calling a hardware package, otherwise it would just be DJ Hero 2, the party pack is a hardware package, well everywhere else at least.
  • Result! B.
    [...] You can relive that challenge right here, but in short: Midlandscomic bought a DJ Hero 2 Party Pack for Xbox 360 online for just £39.70 It was a very low price but Tesco were very clear about what was being sold: [...]
  • cong k.
    what's up, r egal blog on lardy loss. this helped

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