Sale of Goods Act - failure to supply

[countryman]

I bought and paid for an end-of-line Hitachi Digital Video recorder from Argos. Their T's and C's state that :

 

2.3 Acceptance of your order and the completion of the contract between you and us will take place on despatch to you of the products ordered unless we have notified you that we do not accept your order or you have cancelled it.

 

My understanding is this means a contract exists between Argos and myself.

 

Argos despatched the item to me via DHL and who would appear to have lost the item. Argos now want to refund me the money as they have no more items in stock. I do not want them to do this. My understanding is that they either supply the item as per contract or they pay whatever difference I incur buying the same item from elsewhere (assuming that I take reasonable steps to mitigate their loss).

 

Is my understanding correct?

 

If so then does this later clause in their T's and C's act as a get out for them and is the clause fair.

 

8.3 Argos shall be under no liability for any delay or failure to deliver products or otherwise perform any obligation as specified in these terms and conditions if the same is wholly or partly caused whether directly or indirectly by circumstances beyond its reasonable control.

 

Many thanks in advance.

[rebel11]

Hi country

 

Welcome to CAG

 

The guys will advise as soon as they are available.

[Surfer01]

Don't think you have much of a chance on this one. Seems they are within their rights to refund you and walk away as the contract was never completed.

[countryman]

So what constitutes a contract then?

 

I thought that if a company offered something for sale and I paid them for it and the company shipped it to me then that constituted a contract? Otherwise there seems little point in having any contracts.

[buzby]

You misconstrue the 'benefit' of a contract. They agree to supply you with the goods in exchange for payment. If the item is lost or otherwise undelivered, then their only obligation to you is to refund in full the amount you paid so you are not disadvantaged. What you are attempting to do is claim a consequential loss, which they will not cover you for, this will be something that you would have to insure yourself. It would be unusual for a seller to cover any purchaser for the disappointment of non-supply (other than goodwill), so bringing it to court may not be cost-effective, especially should you lose you'll be liable for the defenders (capped) costs.

[countryman]

Ah but I am disadvantaged. This is an end-of-line item and available through several outlets at varying prices. Argos was at the lower end. In the meantime, the midprice items from other suppliers has gradually dried up. This leaves the items at the higher price point only available. So because of their shipper losing the item, I now have to pay a much higher price.

[buzby]

You may be disadvantaged, but that is no fault of the supplier. If you actually received the item, and it turned out to be faulty, then you are STILL only entitled to a refund of the price you paid, not the cost of a replacement (which may be more expensive).

[countryman]

So if the supplier used their own transport and lost the item, would that make any difference? Because it seems to me that the Sale of Goods Act is pretty duff. Basically what you are saying is that I give my money to a company but they actually have zero obligation to provide me with what I thought I was contracted to buy. They can hang on to my money for, what, one - two weeks, a month or so. If so then that's great...I'll list a couple of thousand items on eBay that I have no intention of selling, bank the money and earn a bit of interest. Good scheme, eh?

[dx100uk]

surely your beef is with the courier?

 

dx

[countryman]

I have no contract with the courier.

[buzby]

Your eBay 'scheme' would fail pretty quickly due to the adverse feedback you'd recieve - and you'd be blocked as a seller PDQ. I cannot add anything useful, if you require consequential loss then it is for you to arrange cover and pay the appropriate premium - other than that, if you get the money back that's an end to the issue.

 

You also misconstrue the word 'obligation' - they are certainly obliged to supply what you have paid for, but if for whatever reason it is no longer there that obligation switches to one of ensuring you get your money back. For some, that is the biggest hurdle, not some imagined loss. A look at the Distance Selling Regulations will confirm no additional liability on the seller.

[countryman]

I came across a thread on another forum with input from a solicitor who's opinion disagrees with your own. In essence, he says that it has nothing at all to do with Distance Selling Regs or the Sale of Goods Act. It is basic fundamental contract law. The T's and C's that apply to this contract were those in force at the time. These quite specifically state that a contract exists between us. They have not fulfilled that contract. I will then suffer damages - ie the additional price I have to pay to buy the same equipment from elsewhere (provided I take reasonable steps to then mitigate their loss....ie if there is one for sale at £400 and one at £200 then I should buy the one at £200) and get this difference back from Argos.

 

Reading clause 8.3 seems to suggest a gigantic 'get-out-of-jail-free' card for them and as such I would question whether or not it could be held to be 'fair'. That, of course, would be up to the judge to determine.

 

 

I'll give Consumer Direct or Trading Standards a call next week and see what they say.

Edited January 1, 2011 by countryman

[buzby]

Of course it does! That's how he earns his money.

 

As CD and TS, enjoy he needless 'busy' work - as irrespective of the advice given, none will take any risk on your behalf, or pursue the firm. They will also explain that they are not responsible for any court action you may take, even if based on their advice (how 'professional' is that, then?).

 

Do come back once the issue is closed and explain the outcome, if any.

Edited January 1, 2011 by buzby

[dx100uk]

I have no contract with the courier.

 

if he courier damaged it, they are liable

read the DHL? website

 

dx

[Surfer01]

if he courier damaged it, they are liable

read the DHL? website

 

dx

Then it is up to the supplier to chase it, not the buyer or consumer.

[barracad]

Basically what you are saying is that I give my money to a company but they actually have zero obligation to provide me with what I thought I was contracted to buy. They can hang on to my money for, what, one - two weeks, a month or so.

 

Not quite - you are definitely entitled to a refund as an absolute minimum, and the refund should be forthcoming in a 'reasonable' amount of time. If they are refusing to give you a refund for a month or so then that is a completely different matter.

 

if he courier damaged it, they are liable

read the DHL? website

 

dx

 

They didn't damage it, they lost it. Either way, the OP didn't post the item, he was the recipient, and so is unable to pursue the courier.

[dx100uk]

tnx

 

dx

[lc1989]

Hi I work for Argos,

 

Consumer law states the following:

 

Yes, when we send info to yourself, either e-mail or a phone call eg; to confirm that the goods have been despatched, than yes, you are correct that we have confirmed the contract between you the buyer and ourselves, argos the seller.

 

Argos terms and conditions states that goods are all sold, what ever it may be from a camera to a washing machine, all subject to availability of the stock.

 

Like your case it was an end of line product, so by Consumer Law, we have to put you back in your original position before you entered contract with ouselves. Which would be looking for a Camcorder with your money in your pocket.

 

If this does go to a small claims court you may find that it will not be, 1. Worth while for the above reasons, 2. You may be liable for the costs if you lost in court.

 

You will most likely get a full refund, which will include your delivery charge. This then has put you back 'In your original position' as per consumer law states.

 

Hope this helps.

 

 

I just want to make it clear that anything I say is my own opinion and in no way am I a representative of Argos Ltd, Home Retail Group plc or any of its companies. No terms are created, nor liability accepted by myself or the for-mentioned companies for any personal advice I provide in my posts.

[countryman]

You are wrong. The requirement is for the injured party to be put back to the same position had the contract been completed. IE ..to be in possession of the item.

[lc1989]

ok, lol.

 

I guess im wrong like everyone else is on the thread who has kindly put there time in trying to help you.

 

I would go on consumer direct and have a good lengthy read on consumer law, distance selling regs etc.

 

If you feel that what I have stated is incorrect take it to a legal representative who may be happy to take your money to advise you the same as we all have here.

 

Im sure though what I have stated in my last post is correct. If there is a CAG Site team member who can back this up or correct me if i wrong, im happy for them to override my last post and help you ote as this thread seems to be going nowhere.

 

Thanks.

[dx100uk]

sorry - i must admit CM, that does seem a bit wide of reality.

 

dx