Obligation to supply

[glitch]

Not sure if this is more suited to OoF, but it's a photographic equipment question so I thought I'd shove it in here.

Allow me to tell you a story.

I'm shopping for a certain item of photographic equipment and mooching round all the usual suspects, marvelling at the price increases that seem to be happening as I watch. And then, to my delight, I stumble across an extremely well-known retailer offering said item for a bargain price. So naturally I snap it up, and soon afterwards the item is no longer listed as being available for purchase from this retailer.

A few days later I get an email telling me my item has dispatched, my money is taken from my credit card, and the item arrives today. Only there's a problem. I have the box for the item I ordered, the paperwork for the item I ordered and everything else... other than the item itself. In its place I have the lowest model in the range inside the top of the range model's box.

What happens now?

Are the retailer in any way obliged to get me what I paid for, even though they might not themselves be able to get their hands on any? Or are they simply able to refund me my money, effectively saying 'Sorry about that, but good luck finding another one at that price, sunshine!'.

 

[pxl8]

Refund, they've failed in their part of the contract so legally the best you can hope for is to be returned to the same position had the contract never taken place.

 

[glitch]

Bugger. I thought that might be the case.

*crosses fingers and hopes they'll be really nice*

 

[pxl8]

Always worth an ask, especially if you're prepared to wait for stock to return.

 

[glitch]

That's sort of what I implied in my email to them, although not in so many words. I was more trying to imply I really need the thing I paid for and that 'I've spent thousands with you over the years so you bloody well owe me' but in a nice way.

Thanks for the speedy response, pxl8. Much appreciated.

 

[MJ Stebbings]

Glitch, do we know said retailer?

 

[raathistle]

I reckon actually you've got a case for asking for the correct item.

They have accepted the contract as evidenced by the collecting of money from your credit card

they can normally get around these mistakes in pricing due to the fact the contract is only formed when they formally accept, but in this case they have

Also note this advice is worth exactly what you paid for it

 

[gman]

Sound like a daft thing for them to do as it's in clear breach of the Trade Descriptions Act 1968 which is a strict liability offence. Not sure what your relationship with them is but perhaps this may also help you get the item you really want at the right price?

 

[glitch]

Glitch, do we know said retailer?

Think of the largest e-tailer in the UK. You'll probably be right.

I reckon actually you've got a case for asking for the correct item.

They have accepted the contract as evidenced by the collecting of money from your credit card

That was my initial suspicion, but in reality pxl8 is right as they can choose to offer me a full refund. I could potentially choose to not accept that and argue the toss, but I don't think I'm legally sound on that one.

Also note this advice is worth exactly what you paid for it

Succinctly put. Can I still blame you if it all goes wrong though?

Sound like a daft thing for them to do as it's in clear breach of the Trade Descriptions Act 1968 which is a strict liability offence.

Which bit?

I don't think for one second that they made the mistake, merely that they were the first victims and I'm the second.

From the look of the internal packaging it looks like someone has opened the box and swapped the items out as the wrapping wasn't Canon's usual superb standard. If you were checking the box over before dispatch you'd not be able to tell the difference unless you unwrapped everything and knew what you were looking for.

I don't blame them and I have every intention of continuing to use them for 90% of the stuff that I buy. I'd just rather like to get my bargain!

 

[Steve Smith]

I don't think for one second that they made the mistake, merely that they were the first victims and I'm the second.

It may not be their fault but it is their responsibility.

It's a bit like when something gets lost in the post. It may well be the mistake of the Post Office but it is still the seller's responsibility.




Steve.

 

[dazzajl]

Well if they're as good as you've been in thread with discussing the details and swapping info, I'd say your chances are southwards of nil.

You have to ask though, I've seen happier endings than this.

 

[glitch]

It may not be their fault but it is their responsibility.

It's a bit like when something gets lost in the post. It may well be the mistake of the Post Office but it is still the seller's responsibility.

That's a good point, well made.

Well if they're as good as you've been in thread with discussing the details and swapping info, I'd say your chances are southwards of nil.

Well I'd rather keep all the gory details to myself, if that's all the same. The name of the retailer and the item in question don't really make any difference to the situation.

And I certainly wouldn't want to start bragging about how I got such an amazing deal on something, especially when prices are going up by the minute and people are finding it harder than ever to scrape together the pennies to get what they want.

 

[gman]

Which bit?

The bit where they have sold you an item that was not as described, it's a very clean cut Act really. Regardless of packaging, paperwork etc the actual item you received was not what they advertised and as said, it's their responsbility not yours.

Why are they opening boxes of new stuff and re-sealing anyway?

All they are legally obliged to do is either replace for like or better, repair or refund. Repair isn't applicable, replace (with the correct item) is obviously what you want but I suspect a refund is more likely. It's at their discretion though.

Obviously you could cause hassle by highlighting how they've broken the law and report them etc but personally I wouldn't see the point and just keep an eye out for another bargain. I believe in karma!

 

[photon]

Similar has happened for me twice recently, with different sellers. It seems they're willing to try it on when the customer's not present. In both instances they immediately acknowledge the "mistake" and refund the return postage or arrange a courier pickup, so all I've lost out is time and parcel tape. Both were £400+ lenses, one at a bargain price, the other was the last in stock before the price rise. Their efforts to make amends were unacceptable and I was able to get what I wanted elsewhere at similar prices. For major purchases I now check the seller out by phone first.

 

[Jim.R]

If it's the company I'm thinking of, did the item come from the company themselves, or one of their "marketplace" sellers?

 

[ianfulcher]

I'm not a lawyer but seem to remember from the dim and distant past when studying for a marketing degree that they may have broken the Sale of Goods Act (1979 i think) It seems to me that they misrepresented the item. They advertised the good as 'item A', entered into a contract with you to supply the good advertised, then supplied item 'B'.

Just for fun I would write to them advising that you intend to sue them - or at least contact your local Trading Standards and let them sue them. The might do the right thing just to avoid the hassle.

 

[pxl8]

The bit where they have sold you an item that was not as described, it's a very clean cut Act really. )

The retailer would no doubt claim s.23 of the act as a defence:

that the commission of the offence was due to a
mistake or to reliance on information supplied to him
or to the act or default of another person, an accident
or some other cause beyond his control; and
(b) that he took all reasonable precautions and exercised all
due diligence to avoid the commission of such an
offence by himself or any person under his control.

In other words no crime if it's a genuine mistake (not wilful) and the retailer simply has to prove they took reasonable steps to prevent one (were'nt negligent).

 

[glitch]

Why are they opening boxes of new stuff and re-sealing anyway?

They're not. As far as I know the item in question doesn't come in a sealed box, or at least I've never seen one that's been sealed.

That's what makes me think it's either been swapped out before it got to the retailer or done once in their possession. Either way I doubt they would have had any reason to check and I can't see it being a mistake on Canon's part.

All they are legally obliged to do is either replace for like or better, repair or refund. Repair isn't applicable, replace (with the correct item) is obviously what you want but I suspect a refund is more likely. It's at their discretion though.

I suspect it will be a refund, but I'm hoping they might have one or two in their warehouse or be able to get me a replacement directly from Canon.

Obviously you could cause hassle by highlighting how they've broken the law and report them etc but personally I wouldn't see the point and just keep an eye out for another bargain. I believe in karma!

That would be out of the question. I accept that they are as much the innocent party in this as I am and they've bent over backwards to be helpful in the past so I'm happy to accept it was accidental.

If it's the company I'm thinking of, did the item come from the company themselves, or one of their "marketplace" sellers?

Direct from 'them' and their stock. If it was the other way round I'd be all over them like a cheap suit.

I'm not a lawyer but seem to remember from the dim and distant past when studying for a marketing degree that they may have broken the Sale of Goods Act (1979 i think) It seems to me that they misrepresented the item. They advertised the good as 'item A', entered into a contract with you to supply the good advertised, then supplied item 'B'.

I'm pretty sure it doesn't work like that, for the reasons pxl8 has covered above.

To their knowledge they have sent me the item they advertised and that I ordered and paid for. All that's happened is the main content of the box has been switched along the line, and that's not something the retailer could have known before they sent it out. It took me a couple of seconds to realise!

 

[Jim.R]

"They" are becomming a bit of a pain these days as you have to really check who you're actually buying from.

On the flipside of your situation, someone has probably walked away with a bargin!
Have there been any recent threads with someone pleased that they ordered a bottom of the range lens, and got the top end one instead?

 

[swanseamale47]

The retailer would no doubt claim s.23 of the act as a defence:



In other words no crime if it's a genuine mistake (not wilful) and the retailer simply has to prove they took reasonable steps to prevent one (were'nt negligent).

But then they sent out an order with the wrong iten? if it was a mistake they have contacted the buyer not send him a different item in the correct box, thats starting to sound a little like fraud, at very least it wouldn't look good in court. I'd complain to trading standard that they ripped you off, let them sort it out. Wayne

 

[glitch]

"They" are becomming a bit of a pain these days as you have to really check who you're actually buying from.

I totally agree, it's very misleading for people who don't check the pages in any sort of detail.

Having said that I'll only ever buy from 'them'.

On the flipside of your situation, someone has probably walked away with a bargin!

Somebody, somewhere is having a whale of a time. The swines!

But then they sent out an order with the wrong iten? if it was a mistake they have contacted the buyer not send him a different item in the correct box, thats starting to sound a little like fraud, at very least it wouldn't look good in court. I'd complain to trading standard that they ripped you off, let them sort it out. Wayne

They would never know it was a mistake until I, the buyer, informed them.

Everything that I received today looked brand-new. The box was immaculate, all the items inside were wrapped in their little plastic bags and nothing seemed to be missing. You'd have to get the item out of the box, unwrap it and then and only then would you notice the difference. And only someone like me, who notices these things, would see that the plastic bags weren't quite wrapped up as Canon usually do. They'd been undone and then re-wrapped by someone who didn't quite know what they were doing.

Being a cynical bugger, I suspect someone has ordered the top of the range model, swapped it with their bottom of the range model and then sent the thing back for a refund. Nobody is going to question this happening as you'd take one look inside the box to check there was actually something in there rather than half a brick wrapped in a plastic bag, see what looks like the item and think it was all peachy.

Hell, that's what I could be trying to do to them!

But I digress. I've been told I can either wait an undetermined time for the item to come back into stock, at whatever price, and get a replacement, or I can have a full refund and a gift voucher for use on my next order and find one elsewhere.

Can't really say fairer than that. I'll still be a few quid short now I have to buy one elsewhere but it's not as much as it might have been.

 

[mrgrimsby]

Why Is there no actual mention of the suppliers name?
They may have made a genuine mistake but it seems as though they are being protected from exposure(no pun intended!) by glitch and I can see no purpose in this, so who is it that sent you the right box but wrong item....I know from your teaser it may have been amazon but equally it may have been ebuyer or even a DSG....I can only speculate.
Hope you get sorted though and the result is in your favour and leaves you happy with your purchase.

 

[Flash In The Pan]

Have a look at their website, I'm sure somewhere it will say "e&oe" -errors and omissions excepted. That's the get-out clause for pretty much everything....

 

[glitch]

Why Is there no actual mention of the suppliers name?

Because it doesn't really matter who they are. I'm not protecting them from anything, I'm just choosing to not specifically name them as I don't feel there is any need to.

If I felt that I had been short-changed then I might be acting differently. But all I was originally asking was if I could expect the retailer to go out of their way to get me a replacement item or if they were perfectly within their rights to simply offer me a refund and an apology, which they have.

I've written back to ask when they expect the next shipment in, if ever, and to say that although they've offered me a gift voucher for my inconvenience it still leaves me a bit out of pocket. I'm alluding to a situation where they might feel the need to source me a replacement item at their expense, but if they say no I won't really feel like I've been screwed over.

 

[gman]

It's all quite a vague affair this but fingers crossed for you anyway, hope things get sorted out to your satisfaction!

 

[Sarin]

It's a tough one, i had the same experience with the same e-tailer (guessing) recently and decided for a full refund rather than waiting for them to get the item i wanted back in stock. The internet is a grey area with some of the sales / consumer / trade acts and is outside their jurisdiction for some parts of them. Unless you are definite that you can win and can be bothered to fight for your rights i would say get a refund then let them know that you are unhappy and may consider not using them again. It seems that a lot of internet retailers are getting sloppy these days with stuff like this.

 

[Steve Smith]

Just for fun I would write to them advising that you intend to sue them - or at least contact your local Trading Standards and let them sue them. The might do the right thing just to avoid the hassle.

That's not the next thing to do. That's what you do (for real, not fun) if everything else fails.

The first thing you must do is give the seller a chance to put right their mistake.

This is true of any business be it selling something or doing some building repairs, car maintenance, etc.



Steve.

 

[glitch]

It's all quite a vague affair this but fingers crossed for you anyway, hope things get sorted out to your satisfaction!

It's only vague because I'm not really wanting to get into the details for a couple of reasons.

I'll assume most people will either know or be able to have a good guess at who I'm talking about by now, and because I feel it was an honest mistake on their part I've chosen to keep relatively quiet about their name.

But in terms of the actual item and the price I'd rather keep that private. Should they tell me they're about to get more stock in at the same price, I'll make sure I shout about it as it was a nice little bargain.

But given that the price I paid was cheaper than I've very recently seen people buying the same item second-hand, I thought it better to keep quiet so as not to seem like I was bragging about it.

But I do appreciate your good wishes for a successful resolution. We'll see what happens!

 

[Sarin]

This is sounding more and more dodgy as i re-read through it. It sounds like the site you got the item from have made a description / price mistake, realised the said mistake and put the real (cheaper) item in the box hoping that you wouldn't notice! The fact that someone has put the cheaper item in the more expensive items box indicates to me that someone is trying to cover their arse so to speak!

Play.com (yep, i'm naming and shaming) have been doing this a lot recently (sending the right game for the wrong platform) and are refusing to sell the right item at the original advertised price now that it has increased, even though it was their mistake.

Give the company a chance to correct their error, you might be surprised?

 

[mrgrimsby]

Well I would have named the company so that others may be able to check if they have had the same problem and then we could have worked out if they did this occasionally of habitually ...one person here has had the same problem with, who they are guessing, is the same supplier but that is a guess..would it not be better to name the supplier and then if anyone else has had the same issues we could decide for ourselves.
It probably was a genuine mistake by the supplier who supplied your goods and I thin k in general most people here would be able to decide themselves wether the transaction was dodgy or legit.
I know I am harping on a bit about this but consumers can find themselves banging their heads against a brick wall dealing with online retailers and any info is valuable.

 

[swanseamale47]

If people don't make a complaint to trading standards the firms going to get away with doing what it likes, who knows how many other have be conned by the same company, only by complaints can trading standards become aware of the scale of the problem if any. Wayne

 

[Flash In The Pan]

Rereading this thread and all the cloak and dagger secrecy, I'm getting the feeling this is all about nothing....:shrug:

 

[stressless]

yeah me too........ bored....... away to look at unanswered posts.

 

[mrgrimsby]

Me too. Im off to watch the footy

 

[Nicola.P]

From what I can tell the OP just wanted an answer to a question, that being 'if a company did such and such are they obligated to get me a new one or just to refund me' so just trying to find out what rights he has.

I think the Op is being quite fair about not wanting to name the company, why name and shame them before they have had a chance to rectify their mistake? It could easily have been an error, some dodgy person working in the warehouse switching things around as a laugh for instance.

I think some of the replys on this thread seem quite rude.

 

[ROFL2K9]

It's not really a matter of "naming and shaming" etc. It's just a natural thing that people are curious as to who the retailer is... helps one build a mental picture....

 

[glitch]

Okay, let's all put our tinfoil hats away for a second. It's not a conspiracy, it's an honest mistake that only the person who switched the items could have known about. Where that happened and why that happened isn't the issue here. The issue is could I expect the largest e-tailer in the country, if not the world, to go out of its way to replace the item or are they perfectly within their rights to offer me a full refund and pay someone to collect the item.

As it happens, that's exactly what they have done, along with a grovelling apology. And they've even offered me a gift voucher which will go some way to softening the blow, especially when it will allow me to get another item I want at a cheaper price than anywhere else on the internet.

Who it was doesn't matter. What it was doesn't matter. The original question has been answered but people have somehow managed to blow the situation out of all proportion along the way. And for all of those who are calling for the company to be named and shamed, I'm afraid you'll have to remain disappointed. I never intended to reveal them and as it's a private matter I shall reserve the right for it to remain so.

Thank you to everyone for their input, but at the same time;

 

[ingrid]

Actually, I think this is straightforward. They are in breach of their contract with you. You are entitled to to be put in the position you would have been in had the contract been performed as agreed (not, as suggested above, to be put in the position you would have been in had the contract never taken place). You have every right to insist on the contract being properly performed - thjat is you want the item you agreed to buy and they agreed to supply. Or you will sue (small claims = very easy and very cheap).

Whether an offence has or has not been committed is a different issue.

 

[StewartR]

Hang on a sec. Aren't we all overlooking something here? What does the retailer's contract actually say?

Amazon, for example, says this in their terms and conditions.

Despite our efforts, a small number of the millions of products in our catalogue are mispriced. Rest assured, however, that we verify prices as part of our dispatch procedures. If a product's correct price is lower than our stated price, we charge the lower amount and send you the product. If a product's correct price is higher than our stated price, we will, at our discretion, either contact you for instructions before dispatch or cancel your order and notify you of such cancellation.

If your retailer has something similar in their Ts & Cs, and the price was an error (which I think you suspect it was, though of course it's virtually impossible to prove), then they are not obliged to honour the price. End of.

 

[Uneducated_Rick]

But, Stewart, they didn't rectify during the dispatch procedures - they sent the right box with the wrong item!

They accepted the contract and didn't have a problem dispatching and in doing so they accepted that the price charged was correct (assuming it was amazon)

Personally I'd have waited for them to come back into stock