Re: Online Shopping Contract Advice

Ste wrote:
On 1 Feb, 23:58, "Epsilon" <n...@xxxxxxxxxxxxxxxx> wrote:
I would be keen to see you expand on this line of argument.

It is your claim, so perhaps you should really put your position.

I think I've gone some way to doing that already.


For me, there is nothing misleading in what the supplier has done,
and professional diligence is not an appropriate descriptor in this
sort of transaction.

"Professional diligence" is defined in the legislation. It means
behaving consistently with honest market practices and the general
requirement of good faith.

It does not appear to me that a supplier is dealing "in good faith" if
they can cancel the contract at the drop of a hat, with only the
flimsiest of justifications offered. I cannot be sure what steps the
supplier took to verify their suspicions, but it is a fair assumption
that they did not take any steps.

And as for arguments in terms of "the contract had not yet come into
force", I submit that in substance an agreement to purchase had been
reached, and anything within the small print that excludes liability
or attempts to deny the existence of an agreement until goods are
dispatched (or whatever), is a facet of the alleged unfair practice.

Most consumers (though by no means all) are willing to understand when
suppliers have a genuine reason why goods cannot be dispatched and a
contract cannot be fulfilled. But when suppliers draw up contracts
that, in effect, mean they are not bound by a contract at all, but can
instead act as the sole arbiters of their own behaviour, then they are
behaving in a way that is unfair towards consumers.

To put my argument another way, the taking funds, or arranging to take
funds automatically at a later date, and in doing so committing the
consumer to a contract of sale, while at the same time as a supplier
not intending to be bound by any contract of sale, is an unfair
commercial practice.


As I say, fundamentally I doubt the "suspected fraud" explanation.
Even if it is true, I would want the seller to justify their
suspicions and their resulting action.

They don't have to justify anything.

I submit that they do.


After all, if I were to translate the original poster's experience
into a face-to-face transaction, what has happened is I have gone
into a store, identified the item I wish to purchase, placed an
order with the manager and paid the balance by card, and then four
weeks later the balance is simply returned to my bank account.

You see, that's the problem. ═That is not at all an accurate
translation of what has happened.

That is the interpretation I am labouring under, so please enlighten
me.


Upon enquiry, the
manager states casually "well, I thought you may have stolen the
credit card", but now offers to sell you the same item at the new
higher price.

You simply don't know that that is what happened. ═If it did, it
would be highly objectionable behaviour by the seller. ═But, you
simply don't know.

No, I don't know.


I say again, I hardly see how such a practice could be justified as
being "fair" to the ordinary consumer, bearing in mind the reality
of consumer behaviour and consumer markets.

You can't reconstruct what happened to make it something rather
different. All we know is that the seller did not despatch the
goods, and refunded the money. ═That's when the OP asked if there
was anything that could be done to require the seller to provide the
goods at the earlier stated price. ═How do you compel a seller to
provide you with those goods at that price?

If you wish to argue your case, then you file a claim in court. As to
the seller's failure to dispatch the goods, surely a party is entitled
to ask why the goods have not been dispatched - and indeed, question
the seller further if it does not appear to be an honest or legitimate
explanation.

And the starting point for these further enquiries is to ask what
caused the seller to suspect fraud, and what steps he took to confirm
or refute that suspicion. We do know, already, that the card issuer
had no report of fraud or reason to suspect it, and authorised the
transaction accordingly. Therefore one is left to ask what further
information the retailer could possibly have had, and what steps they
took to verify their information, and what new information has turned
up to make them perfectly willing to sell the goods at the new higher
price.

I don't know either, but my guess is that the fraud stuff was invented on the spot, just for the purpose of deflecting the 'phone call.

The guts of this matter is getting a seller to provide the particular goods at the price agreed. This amounts to asking for specific performance. Specific performance is traditionally an equitable remedy available for contracts for the sale of land in superior courts. It is rarely available as a general law remedy in other situations, and not traditionally available in ordinary consumer transactions. Have you found any legislation that otherwise gives it as a remedy in consumer transactions?

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