Tesco took my points away

[Michael Browne]

 

The customer treats the scheme as if the points were purchased, supplied by Tesco in the course of a business,

 

Right, I apologise, I didn't realise the OP was buying points, I thought he was being rewarded with points for buying "500 mobiles and CDs"

[Kraken1]

I'm interested to know how it could be a unilateral contract when both the OP and Tesco are actively involved. Now, if Perpy had suggested that it was a collateral contract, citing the Esso case, then I might have agreed. Still wouldn't help the OP though as he breached what is likely to be a condition of the contract, allowing Tesco to withdraw.

[perplexity]

The basic principle of a unilateral contract is a promise by the one party in return for an act by the other.

 

Tesco's promise is "2 points for every £1 you spend in-store..."

 

It is also unilateral in the sense that the clubcard is applied for from the start, so the terms and conditions apply from the start, not as if a clubcard contract is concluded every time a purchase is made.

 

As to "actively involved", if the buyer has a point, it could be the unfair term (m) defined by SCHEDULE 2, Unfair Terms in Consumer Contracts Regulations 1999:

 

giving the seller or supplier the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract

seeing that the point of contention is the interpretation of a term.

 

8)

[Kraken1]

The basic principle of a unilateral contract is a promise by the one party in return for an act by the other.

 

Now I would have called that a bilateral contract myself. I'd suggest you check your carbolic balls.

[perplexity]

Try this for instance:

 

http://www.lawofcontract.co.uk/formation/acceptance-by-act.php

 

[Kraken1]

So I'm right. thanks. I'm not surprised that I'm right and you ain't, that is the normal here. I'm surprised you bothered to dig out a website link that supported me.

 

Unless of course your contract is so poor you don't know what you are talking about and you don't know your smoke balls from your hoffmans, dodds and far east companies.

 

You've never bothered to tell us what your qualifications are, have you?

[Dragons Dennis]

Kraken, I see you have visited the site : http://www.feed-the-troll.com

[Kraken1]

yeah. But the problem is that he dresses up his rubbish in such a way that those seeking advice might think he knows what he is talking about, try and follow the advice given (if they can understand it) and then get screwed. I think that this is a particularly malicious use of the net, and figure that perpy must be quite a miserable person.

[perplexity]

A promise of points with regard to a single purchase of goods may well be regarded as collateral to the purchase but it is problematic with regard to a number of purchases.

 

Tesco Stores Limited reserves the right, at any time without notice, to terminate the scheme. The award of points is therfore an offer that lasts for as long as the scheme remains, rather than a contract created when a buyer subscribes to the scheme.

 

I am not betting a mortgage on this. It is only an opinion, but I fail to see how to cope with the ramifications except to regard it as an offer made by Tescos, to be accepted by acts of buying. I know, at least, of no way to gain the points except to make a purchase.

 

[Dragons Dennis]

Haven't I seen you on that new sky series; I'm a clebreity diet Pop factor strictly troll cube ?

[MARTIN3030]

If a purchase/purchases were influenced by an expectation of getting the clubcard points,then there may well be a case under CPUT.

[MARTIN3030]

Can we please continue the discussion without the personal comments.

[LittleMissHappy]

I was reading this earlier and meant to reply!!!

 

I collect boots advantage card points. I will regularly buy things from boots because there is a points offer (which I could buy cheaper elsewhere.) I haven't read there terms and conditions but I bet they could stop it at anytime.

 

I wouldn't be happy if they did.

[Action it]

Thanks all.

 

In 2007 I called Tesco because I was buying many phones. I asked whether I'm within the rule of the scheme by purchasing many items. They said as long as I'm buying the items from the same registered postal address and that I'm using the items. This made me continue my purchasing behaviour - to buy items open up, use & keep for at least 60 days. Can Tesco then retrospectively say I've broken their terms?

 

If the terms are broken then surely an implied in fact contract took place? If so, then this should overule their T&Cs.

 

Any thoughts please?

 

Kind regards,

[perplexity]

If the terms are broken then surely an implied in fact contract took place? If so, then this should overule their T&Cs.

 

 

Written terms are provided to form a contract to agree to, especially to be sure that any subsequent agreement that seems to be implied or spoken, fails to supersede the written terms, to prevent an eventual dispute. This is called the parol evidence rule.

 

As was previously explained, it is rather a question of the validity of the terms to start with; there is an argument to be put that what they're doing is an unfair commercial practice, that it is simply not fair to be making the sort of unilateral declarations they do.

 

A complaint would thus be dealt with as a matter of consumer protection law rather than as a contractual issue.

 

I notice, by the way, that a revised set of terms and conditions already appeared, effective as of 13th December 2010:

 

http://www.tesco.com/clubcard/clubcard/terms.asp#updated_general

 

[Action it]

On this basis, & anything else that anyone can add, please advise if the case goes to court would I have a strong, mild or weak case?

 

Thanking everyone again!

[Action it]

So I may be able to argue my case on this act?

The Consumer Protection from Unfair Trading Regulations 2008

Prohibition of the promotion of unfair commercial practices

1. 4. The promotion of any unfair commercial practice by a code owner in a code of conduct is prohibited.
   

　

Misleading actions

1. 5.—(1) A commercial practice is a misleading action if it satisfies the conditions in either paragraph (2) or paragraph (3).
   


1. (2) A commercial practice satisfies the conditions of this paragraph—
    
   
2. (a) if it contains false information and is therefore untruthful in relation to any of the matters in paragraph (4) or if it or its overall presentation in any way deceives or is likely to deceive the average consumer in relation to any of the matters in that paragraph, even if the information is factually correct; and
    
   
3. (b) it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.
    
   
4. (3) A commercial practice satisfies the conditions of this paragraph if—
    
   
5. (a) it concerns any marketing of a product (including comparative advertising) which creates confusion with any products, trade marks, trade names or other distinguishing marks of a competitor; or
    
   
6. (b) it concerns any failure by a trader to comply with a commitment contained in a code of conduct which the trader has undertaken to comply with, if—
    
   
7. (i) the trader indicates in a commercial practice that he is bound by that code of conduct, and
    
   
8. (ii) the commitment is firm and capable of being verified and is not aspirational,
   

3

and it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise, taking account of its factual context and of all its features and circumstances.

1. (4) The matters referred to in paragraph (2)(a) are—
   

   [*](5) In paragraph (4)(b), the "main characteristics of the product" include—

   1. (a) availability of the product;
       
      
   2. (b) benefits of the product;
       
      
   3. © risks of the product;
       
      
   4. (d) execution of the product;
       
      
   5. (e) composition of the product;
       
      
   6. (f) accessories of the product;
       
      
   7. (g) after-sale customer assistance concerning the product;
       
      
   8. (h) the handling of complaints about the product;
       
      
   9. (i) the method and date of manufacture of the product;
       
      
   10. (j) the method and date of provision of the product;
        
       
   11. (k) delivery of the product;
        
       
   12. (l) fitness for purpose of the product;
        
       
   13. (m) usage of the product;
        
       
   14. (n) quantity of the product;
        
       
   15. (o) specification of the product;
        
       
   16. (p) geographical or commercial origin of the product;
        
       
   17. (q) results to be expected from use of the product; and
        
       
   18. ® results and material features of tests or checks carried out on the product.
       

   [*](6) In paragraph (4)(j), the "nature, attributes a

   
   
2. (a) the existence or nature of the product;
    
   
3. (b) the main characteristics of the product (as defined in paragraph 5);
    
   
4. © the extent of the trader’s commitments;
    
   
5. (d) the motives for the commercial practice;
    
   
6. (e) the nature of the sales process;
    
   
7. (f) any statement or symbol relating to direct or indirect sponsorship or approval of the trader or the product;
    
   
8. (g) the price or the manner in which the price is calculated;
    
   
9. (h) the existence of a specific price advantage;
    
   
10. (i) the need for a service, part, replacement or repair;
     
    
11. (j) the nature, attributes and rights of the trader (as defined in paragraph 6);
     
    
12. (k) the consumer’s rights or the risks he may face.
    

[MARTIN3030]

Yes food for thought.My earlier post was in regard specific to 1.5

 

 

Looks like you wont be the only one losing out on points either;

 

http://uk.biz.yahoo.com/18102010/389/tesco-clubcard-holders-act-fast.html

[perplexity]

So I may be able to argue my case on this act?

 

 

Not quite.

 

The Regulations (which are not in fact an "Act" of Parliament but rather the implementation of a European Community Directive) refer to the "average consumer", which is to suggest that one in particular is not so likely to count for much. How many of their customers belong to the clubcard scheme? Thousands or millions?

 

In any case, the Regulations define criminal offences, for an enforcement authority to enforce, so what you ought to be doing is having a word with Trading Standards. If it turns out that Tesco make a habit of letting the buyers down something should of course be done to put a stop to it, but if it's just the odd few I am not expecting the Chief Executive Officer to be marched away to jail because of it.

 

Were there something in the Regulations to relate more directly to the given circumstance a judge could be pleased to be helped to make his mind up, were you to sue, but I don't really see that there is.

 

[MARTIN3030]

There have already been some prosecutions under CPUT,both by the regulators and also private cases.

 

Would do no harm to contact your Trading Standards Office.

But they will only take it up after seeing that Tesco have given a final response,or shown no willingness to resolve.

[Action it]

Thank Martin3030! I've followed the link but I can't find the CPUT.

[perplexity]

There have already been some prosecutions under CPUT,both by the regulators and also private cases.

 

 

That is especially interesting.

 

I have argued over this before, where it was rather insisted that it is the sole "gift" of the enforcement authorities to enforce the Regulations; it would not be possible for a private person to prosecute. While I was not aware of any particular impediment to prosecuting privately, I lacked the proof of a published case to show the way.

 

The Regulations belatedly came to force in the UK because the powers that be could hardly help but notice that a mockery was made of what was there before, for want of effective enforcement, since when there has not exactly been been an instant revolution with regard to dodgy practice. As before, the OFT would rather appear to be determined to limit it's workload, which is understandable, rather them than me, in view of the millions of offences to enforce against, literally.

 

8)

[Action it]

Sorry, but please explain what CPUT stands for.

[MARTIN3030]

Consumer Protection from Unfair Trading.

[Action it]

Thanks for the Contract Law link. It's interesting.

 

I've come across the below.

 

Acceptance by silence plus additional circumstances

 

(3) where the offer is ambiguous, and the offeree communicates with the offeror showing that he understood the offer in a particular sense, this communication will probably amount to a counter-offer9; in which case, it could be that silence alone by the original offeror will constitute his acceptance10;

 

Would this have any validity in my case anyone please?