Consumer Enforcement System: my letter to Greg Clark

That’s not been my experience. Over the last fifty years I have had two burglary claims and one subsidence claim and they were all dealt with properly in accordance with the policy terms and conditions. Without insurance cover [none of which was compulsory] I would have sustained serious losses in each case. As it was I got full and proper restitution and no uplift in premium other than a reduction in the no claims bonus [which was within the terms and unavoidable].

I have known people who complained that they were not treated well by their insurer and when I looked into it I had to point out that they had not read the exclusions nor selected the appropriate cover.

I had a claim for slight subsidence caused by a cracked rainwater drain at my previous home. Like John, I had no problem with the claim being settled. Unfortunately the insurance company forgot about the claim, their loss adjuster failed to get someone to put a camera down the drain and their contractor flooded a bedroom and had to replace a carpet.

That consumer rights advice does not appear to be pertinent to Martin’s enquiry. There is no suggestion that the contract with the furniture shop was unfair, it’s that they want to withdraw from it because they say the price was an error. It might be a bit late to do so, after taking the deposit, but I was under the impression that a supplier was able to cancel a contract in the case of a genuine mistake. I suspect the terms & conditions referring to a “non-cancellable contract” applied only to the purchaser and not to the retailer. Scrutiny of the complete T&C’s might clarify that, but in the absence of clarity the customer should not be disadvantaged.

The questions that arise are (1) whether acceptance of a deposit by the seller closed the purchase, constituted a contract [i.e. it no longer being an ‘offer to treat’] and meant that failure to fulfil was a breach of contract, and (2) whether the price shown – and presumably stated clearly in the purchase documentation – was a genuine error enabling the seller to “not honour their contract”. To my mind, unless there is a specific exemption in the contract T&C’s for pricing errors, that phrase “not honour their contract” used by the seller suggests that they recognise that there is a contract between themselves and Martin and that they intend to breach it. Such a purported exemption might be an unfair contract term itself.

A similar situation could arise if the seller subsequently found out that all stock was sold out and that the manufacturer could no longer supply the goods ordered. Before taking a deposit I feel that retailers must satisfy themselves that they are in a position to fulfil the order – or face the consequences.

My view is that Martin should be able to claim for breach of contract and either demand delivery of the furniture at the price stated, as set out in his contract and deducted from his bank account, or accept cancellation of the contract and claim a full refund plus compensation [damages] for the inconvenience and delay in obtaining the furniture he likes. A good retailer would settle on the former basis and write it down to experience.

I believe people who write in to Which? Conversation with queries such as this are entitled to expect a competent, albeit general, answer from Which? There can be no expectation that Which? would deal with it as a case and the option remains for a purchaser to seek professional legal advice, or use Which? Legal, or refer it to Trading Standards via Citizens Advice.

This may be of relevance – Govt guidance on contract terms:
“For example, your terms are more likely to be fair if:
– they explain any right for you to cancel, so cancellation will not come out of the blue
where you cancel and your customer is not at fault, they give your customer a refund of any advance payments they have made
– where using your right to cancel could cause the customer significant problems, it applies only where circumstances genuinely beyond your control make it impossible to carry out the contract as agreed
– you agree to give reasonable notice before cancelling, except where there are ‘serious grounds’ for immediate cancellation which are clearly set out…”
https://www.gov.uk/guidance/unfair-terms-explained-for-businesses-full-guide

Some of us look at these questions and beaver away, inexpertly, trying to uncover relevant information.

However, Which?, whom Members fund, have a legal team who should know much of this stuff off pat, or know exactly where to find the answer. Why cannot they put a small amount of effort into helping us by providing the real answer to these sorts of questions. “I pay a deposit and the trader decides they cannot then supply the goods”. Is it fair. Do I have any redress other than the return of my deposit? Can that be covered by their terms and conditions? Surely this can be explained here in general terms?

Indeed. A question I asked some weeks ago and on which some action was promised remains unanswered. These are purely general questions: not specific issues and therefore fall directly within Which?’s remit to educate.

Woods Furniture of Dorchester [with whom Martin Dines has a contract to supply two sofas] is hardly a big corporation. I have looked at their website. It has two stores, both in Dorchester. It is a family firm that was founded in 1875 and appears to have a good reputation for customer satisfaction. It seems to major in higher-quality and higher-priced furniture than the well-known sheds on the ring-road. Their sofas cost two or three times more than those sold by the national outlets and they look as though they are worth it. The firm has a reputation at stake and I would suggest that a favourable outcome is possible if the problem is dealt with diplomatically.

My advice to Martin would be to approach the company politely, if possible at director level, and discuss the point about the pricing error in a reasonable manner, with no suggestion that the company is trying to pull a fast one by entering into a contract and then holding the customer to ransom [as Martin perceives]. Try to negotiate a satisfactory outcome, always with the possibility that further action could be taken if the company does not reinstate the order and fulfill it with the least expense and inconvenience to yourself.

The government advice to business that Malcolm has quoted from above could well be a useful resource in resolving the problem, but I would keep it up my sleeve until later in the hope that an acceptable response was forthcoming from a sensible discussion. If the company was intransigent then reference to that guidance could prove conclusive. Don’t forget that there is value to you in a quick resolution – the longer the uncertainty is prolonged the more difficult will it be for you to buy the furniture you want elsewhere at a price that you can accept. However, if you can find the same sofas at a better price elsewhere that is another bargaining chip in your favour with Woods.

Part of Woods Ts&Cs read:
“5. Cancellation & Returns
5.1 We reserve the right not to accept any order request if:

– We have insufficient stock to deliver the goods you have ordered;
– We do not deliver to your area;
– One or more of the goods ordered was incorrectly described or priced on the website;
– The payment transaction is not authorised.
5.2 If we do cancel your contract we will notify you by email and will refund to you any sum paid by you to us in respect of the contract as soon as possible and in any event within 14 days of the cancellation of your order. We will not be obliged to offer any additional compensation for disappointment suffered.

So the terms are quite explicit. The remaining question is whether these terms are “fair”. @gmartin Over the Which? – perhaps you can expedite George?

The terms refer to the company’s right “not to accept any order”. Martin’s order was accepted, but cancelled after acceptance and payment of the deposit. We do not know whether or not the order was placed via the website. I remain of the view that the company needs to take more care over the use of the word “contract” and its application in the course of business.

Only if this goes to court shall we know whether the company’s contract terms are fair.

It would be useful if Martin gave us this information. I assume he is watching this Convo having asked the question.

Woods Ts and Cs do seem to cover many eventualities for online orders. Again, are these fair or unfair contract terms is a question I would hope Which? could answer.
3. Prices & Payment
3.1 All prices listed on the Website are correct at the time of publication however we reserve the right to alter these in the future. Prices are inclusive of VAT but exclusive of delivery charges which will be added to your order.

3.2 We reserve the right to cancel the order if there has been a genuine mistake with the advertised price.

Companies often copy or mimic the terms and conditions used by other firms in their contract documentation. They don’t necessarily check them to see if they are legally valid and rely on them not being challenged. Whether that has happened here I could not say but I think the drafting could be better.

The definition of a “genuine mistake” would be interesting to see. This one managed to get all the way through to the completion of an order and the taking of a deposit. I generally find that I pay for my mistakes but some companies seem to think they don’t have to [except through the loss of an order]. Most good firms would try to hang onto an order and as much profit as they could salvage from the situation.