Sale of goods, contracts etc

[andycorleone]

Just when I thought he was out... they pulled him back in!

:twisted: :twisted: :twisted: :twisted: :twisted:

 

[Tom K]

It seems the main protagonist in this case isn't even Roger anymore.
I think if it gets to the Small Claims they are far more interested in what is fair and reasonable.
If a B&Q rep stands up and says we don't normally do business that way
and that it was ordered in on the basis of being available in their distribution network which as we all know it wasn't the action will be dismissed.
Could Roger step in and tell us wether he has accepted a refund or in fact if he was actually ever charged for the goods?

Regards Tom (Non Kingfisher Shareholder)

 

[RogerS]

There you go. Roger's trying it on; he knows it, and we know it.

Suggest you read the forum rules before posting offensive comments such as this

As for the law, I'm sure Roger's had plenty of time to consult his CAB, trading standards, or a lawyer. I'm equally sure he hasn't bothered.

Don't presume or have the arrogance to make a statement such as this without knowing the facts.

But the law is relatively straightforward: he's entitled to an alternative product, or a full refund and any damages suffered. He hasn't suffered any damages. They've offered him a full refund. Everything else is self-justification, pious claptrap, and rather stomach-turning.

Suggest you keep the personal attacks out of the forum.

 

[Jake]

It seems the main protagonist in this case isn't even Roger anymore.

If you are referring to me, I'm a lawyer, and I find it difficult to stand by without intervening when I see people being told nonsense about the law such as this :

I think if it gets to the Small Claims they are far more interested in what is fair and reasonable.
If a B&Q rep stands up and says we don't normally do business that way
and that it was ordered in on the basis of being available in their distribution network which as we all know it wasn't the action will be dismissed.

The court will not give a flying fish about B&Q's ordering/stocking/distribution practices - they took the money and concluded a contract, if they need to make an exception to their usual rules or method of business to fulfill it, so be it, the court isn't going to kow-tow to internal bureacratic procedure and allow it to over-ride contract law.

Anyway, if you are calling me a "protagonist" rather than someone else, you might note that I'm actually a lot more neutral than that. I've said several times that it is up to Roger whether he can be bothered to pursue it, and that I wouldn't do so personally.

However, I don't like seeing 'law' being made up in all sorts of ways to suit people's personal agendas, and I really don't like some of the nastier posts which impute some sort of moral failing to Roger simply because he is paying mind to his legal rights.

 

[Digit]

The tendency is, as always, for the big boys to bully the small ones.
Take the timber that has floated ashore on the south coast. It is Flotsam, and can be reclaimed by the owner only if they make a correct claim, and historically there is nothing to stop anyone collecting it provided they inform the owner, if known, who would then have to make a claim for return of their goods, and presumably pay salvage money.
The legal basis for closing the beaches seems a bit dodgy to me as well, 'health and safety perhaps? Like the timber might get hurt I suppose.
But then, nobody in authority tells us the truth now a days anyway.

Roy.

 

[Tom K]

Jake its nice to know that there is a professional on the case.
As far as I know the Small Claims doesn't delve that far into contract law.
I don't have any objection to Roger defending his position if indeed he has one but if the time devoted to this thread had been devoted to looking for the item in question I really believe there wouldnt have been a need for the thread.

Regards Tom

 

[Slim]

Moderators.

Although this thread is becoming a bit heated and a select few have descended into personal attacks, please don't lock this thread. It does serve a good purpose in showing people what their rights are in this situation.

 

[Slim]

As far as I know the Small Claims doesn't delve that far into contract law.

The thousands of bank charge cases that county courts are dealing with up and down the country are all based on contract law. More specifically, unfair terms in consumer contracts and breach of contract. So yes they do delve into contract law.

 

[Jake]

All courts delve into and apply law, that's what they are there to do.

The difference in small claims (and there is a big difference) is that the procedure is simpler, quicker, with less frills, and a much more summary flavour, with an eye to keeping costs right down. That's so as to try to ensure that the law can be sensibly applied to low value disputes, and giving access to justice in that sort of case.

The summary nature of the procedure doesn't mean they don't apply exactly the same law as any other court. By the nature of the cases they deal with, the more esoteric strands of the law might not come up very often or at all, but this is very, very basic contract law - which is itself one of the fundamental pillars of civil law.

If a judge veered off into preferring B&Q's internal rules over the law of the land, he would lay himself open for criticism on appeal, as well as having his decision quashed.

And, as a matter of principle, that kind of approach simply wouldn't work. You can't allow B&Q to plead that defence without opening it up to everyone, so anyone who wanted to get out of a contract would simply have to say that "my internal procedures did not allow me to complete the contract so I gave him his money back so that's OK then". That isn't possible, if you want a working economy, as contracts would become essentially meaningless.

 

[Tom K]

Dear Lawyer Jake,

Jake said

The difference in small claims (and there is a big difference) is that the procedure is simpler, quicker, with less frills, and a much more summary flavour, with an eye to keeping costs right down. That's so as to try to ensure that the law can be sensibly applied to low value disputes, and giving access to justice in that sort of case.

Like I said is it fair, is it reasonable thats where the court will ask about the companies normal working practice, if it gets that far because it appears Roger already accepted his money back which means he has no contract. I think it highly unlikely he would be offered the difference between a clearance item and full retail.
If all it required was cold facts a computer could sit on the bench.

Regards Tom

P.S Slim whats with the plea to the Moderators Roger seems quite capable of telling anyone whom he finds insulting to naff off!

 

[Jake]

Like I said is it fair, is it reasonable thats where the court will ask about the companies normal working practice, if it gets that far because it appears Roger already accepted his money back which means he has no contract. I think it highly unlikely he would be offered the difference between a clearance item and full retail.

Dear Tom,

The issue here is basic formation of contract (offer, acceptance, intention to create legal relations, and consideration). Each of those was satisfied when B&Q took the money, which leaves an obligation on B&Q's part to fulfill the contract. They cannot escape that obligation by returning the money!

If they could, no-one would ever perform a contract which turned out to be a little inconvenient or less worthwhile than some other deal, as they'd just return the money and walk off. Effectively, contracts would be worthless.

The fact that Roger took the refund when it was offered would be viewed by a court as a pragmatic decision by Roger to minimise the damage he suffered as a consequence of B&Q's refusal to fulfill the contract. It doesn't expunge or excuse or wipe out the fact that they are in breach of contract, it just means that he doesn't need to sue (if he does) for his money back, just for the difference between the price B&Q contracted to sell him one at, and the price he will now have to pay to buy one (and yes, he will have to buy one to establish that he has suffered a loss). No court would expect a party subjected to a breach of contract to have to refuse the return of his own money in order to protect their right to sue on the contract - that would just defy common-sense.

The exception might be if Roger agreed that the refund would be the end of the matter and was in settlement of any claims he had, but he hasn't said anything to indicate that was the case, and I doubt the store was that sophisticated about what it was doing.

The fact that it was at a sale or clearance price is entirely and utterly irrelevant, except in terms of working out what his actual loss is. Again, the law could hardly be anything else or people would just walk away from contracts claiming that it had been made at a sale price so it didn't count as a real binding contract.

Roger has a duty to take steps to mitigate his loss, so if other retail outlets are selling at less than RRP, his loss is the difference between that price and the £98. Otherwise, there is no doubt.

Kind regards

Jake

 

[Slim]

P.S Slim whats with the plea to the Moderators Roger seems quite capable of telling anyone whom he finds insulting to naff off!

and so he should! There have been one or two posts in this thread that have been personally insulting to Roger. When this happens the Mods usually lock the thread in order to preserve the harmony of the forum. Normally this is a good thing ,but in this case, I think this thread will be beneficial to members. As long as people can refrain from posting derogatory remarks. It is possible to disagree whilst being civil.

 

[Digit]

And if it had been a motor car that had been as heavily discounted I'll hazard a guess that nobody would be arguing against Rog. :lol:

Roy.

 

[Tom K]

Dear Jake,
you have your opinion of what the outcome would be I have mine.
If it ever gets to court perhaps R.S could let us know the result.
Should it be the case that there is no place in the law for fairness and reason I will happily accede the point.

Regards Tom

 

[Jake]

Dear Jake,
you have your opinion of what the outcome would be I have mine.

OK

If it ever gets to court perhaps R.S could let us know the result.

I'm sure he would, if it got to that, which I doubt, because B&Q's lawyers real view will different from the one expressed in their letter to Roger, and when pressed, they are likely to pay up rather than incur the costs of defending a hopeless case.

Should it be the case that there is no place in the law for fairness and reason I will happily accede the point.

There is, Tom, but you are seeing fairness and reason as being a particular brand of fairness and reason which would excuse B&Q from contractual obligations on the grounds that this was a sale item and their internal procedures don't normally work this way. Unfortunately, what you are missing is that there is a much larger dose of fairness and reason which overrides those concerns. That is that it is fair and reasonable to expect contractual parties to abide by what they have agreed to do with each other, and not to fair and reasonable to allow a party to make an agreement with someone, and then later, unilaterally, try to change the nature of that contract.

In a sense the law of contract is a private law - the parties entering into a contract determine (at the time they contract with each other) what legal obligations they are assuming towards each other. The terms of the contract then become part of the law which determines what those parties can and can not do to each other.

At the stage of agreeing the contract the parties can say what they like to each other, and it will be part of the contract. So if the lady at the till had said, "I'll try and order one, but if the management system won't accept the order we'll have to give you your money back" then the law would regard that as a condition of the contract, and that would be that. Same goes if B&Q had some order form which Roger had to sign, which made some similar statement.

Each party has a choice at the time of entering into a contract what they agree to do with the other party, and they can agree almost anything as long as it isn't illegal. Once they've agreed what they are going to do, and the money has been paid over to seal the bargain, the courts regard making sure that the parties do what they agreed to do at the start as being the fair and reasonable thing to do.

Otherwise, the whole thing becomes very random as each party would claim that all sorts of factors which they did not communicate to the other party at the time they were agreeing the contract affect the bargain they struck. That might seem fair and reasonable from the point of view of one party to the contract, but if it is to their advantage, it is almost inevitably to the detriment of the other party who no longer gets what they were going to get under the contract. The whole contract is agreed as a whole and you can't (generally) start picking bits and pieces off without upsetting the whole nature of the bargain which was struck.

The only way to be truly fair and reasonable is to look at what the parties agreed at the time and make them hold to that - the law expects grown adults and companies to be capable of looking after their own affairs so that they do not agree to do something that they do not actually want to do.

B&Q could have made the sale conditional, or just placed the order and asked Roger to come back and pay for it if as and when they got it back in stock. There are all sorts of things they could have done to avoid this situation, but they (apparently, from what Roger says) did not: they agreed to sell him a router, and took his money, no ifs or buts. A court would not regard it as fair and reasonable to allow them to row back from that unconditional agreement to insert all sorts of conditionality which they were free to (but did not) seek to make part of the contract at the time it was made.

Kind regards

Jake

 

[Digit]

Jake! You're the expert, B&Q claim that Rob was a offered a suitable replacement of equivalent value. As they don't normally sell routers of Triton's quality, how would they claim to perform that trick without supplying a Triton?
Or am I being too logical? Awkward?

Roy.

 

[Jake]

B&Q claim that Rob was a offered a suitable replacement of equivalent value. As they don't normally sell routers of Triton's quality, how would they claim to perform that trick without supplying a Triton?
Or am I being too logical? Awkward?

Roy.

Not at all, it's a good question. Their obligation is to supply a Triton, not any router which they (unilaterally) decide is as good as a Triton.

Otherwise, what would stop shops from taking the money for a Felder, and delivering a SIP? "It's a matter of opinion, mate, and I think the SIP is a much better machine".

If they can agree with Roger that another router they stock is as good, that's all well and good. On the other hand, Roger can point to the features of the Triton as being what he wanted, and clearly the Makita (which I've seen recently in one of their shops at the same price as they used to sell the Triton) isn't the same and isn't necessarily going to be an adequate substitute for Roger's purposes.

What they probably did (I haven't checked back, but I think Roger mentioned this) is offer him the next best thing they had to hand which was probably much more rubbish than the Makita, and even further away from what they originally offered to supply.

The comment that they had offered an alternative is meaningless in terms of this contract. If Triton had stopped wholesaling in the UK, they would have more grounds to argue that kind of line (and might have other arguments) but as they have just stopped dealing with Triton, it isn't something which would impress the court at all.

 

[Pete W]

I'm a lawyer

Perhaps you can point me to the relevant statute, or case law, that requires a retailer to supply the precise make and model in question. Because I can't find one (and believe me, I've looked). What I found, as I said in my earlier post, is a requirement to offer a reasonable alternative, or a full refund. According to Roger, B&Q immediately made that offer.

There has been extensive (not to say exhaustive) discussion in various threads about B&Q and Triton routers and we all know that some stores are offering stock clearance discounts. Roger tried to score one at the cheap price, and it didn't work. If my saying that Roger "was trying it on" constitutes some kind of vicious personal attack then I apologise; I didn't see it that way and didn't mean it that way.

I do find the attempts to turn the situation into a moral crusade rather stomach-turning. Others are, of course, free to disagree.

 

[Jake]

Perhaps you can point me to the relevant statute, or case law, that requires a retailer to supply the precise make and model in question. Because I can't find one (and believe me, I've looked).

It is common law, and there is no one case (that I can recall). It's a bit too very basic - a contract for sale is a contract for sale of the thing which the parties agreed to sell and buy, not a contract for sale of something which the seller thinks is more or less the same as the thing they agreed to sell and buy. I've given a few examples of the absurdity which would result if it wasn't the case. If I buy a Volvo, I don't want a Saab - do you think the courts should allow car dealers to take that sort of decision away from their customers? The courts don't.

I could point you to many, many instances of cases where, e.g. sugar of different qualities weren't the same thing etc, etc, but it isn't worth my time to look them out and none of them are of a status where you can say "the rule in Bufton against Tufton says that you must give me a Triton and not a Makita" - they are all just myriad instances of a wider, very basic, almost unspoken principle being applied.

What I found, as I said in my earlier post, is a requirement to offer a reasonable alternative, or a full refund. According to Roger, B&Q immediately made that offer.

Those are additional remedies under the Sale of Good Act, they supplant, rather than displacing, the remedies for breach of contract.

The Sale of Goods Act adds various remedies concerning quality and fitness for purpose of goods (which is where the repair or replace stuff really comes in).

Those are additional to basic contract law, as is the right to a refund - which was presumably added because retailers were arguing that they did not have to give a refund to the consumer because instead they'd given the purchaser a tenner to cover the difference between the Triton paid for and the PPro handed over, and that is that, take us to court if you disagree that that is the value of the difference and want to claim damages instead of putting up with the alternative product. The refund allows the consumer to get out easily if they choose so to do, rather than having to take the retailer to court to claim damages - but they can still do the latter if they prefer to.

All of the SOGA statute law tries to address the imbalance of power between retailers and consumers. It does not take remedies away from consumers, it gives them additional alternatives.

There has been extensive (not to say exhaustive) discussion in various threads about B&Q and Triton routers and we all know that some stores are offering stock clearance discounts. Roger tried to score one at the cheap price, and it didn't work.

"Tried to score one" is again pretty emotive language. Roger offered to buy one, B&Q agreed to sell one to him and took his money. Deal done, apart from B&Q's non-fulfillment of their part of the contract.

If my saying that Roger "was trying it on" constitutes some kind of vicious personal attack then I apologise; I didn't see it that way and didn't mean it that way.

I do find the attempts to turn the situation into a moral crusade rather stomach-turning. Others are, of course, free to disagree.

The only moral crusade I see is against Roger. This isn't about B&Q generally. It's a little individual contract, which B&Q are refusing to fulfill, and Roger has suffered a little damage. I don't think morality comes into it, apart from maybe to some extent the basic respect for the agreements one makes with others which underlies contract law.

 

[Gary]

Posted: Tue Jan 22, 2008 7:15 pm Post subject: Got one today

--------------------------------------------------------------------------------

Sorry I can't answer your question regarding base.

I managed to get the last router today from the BandQ in Gillingham(kent)
boxed with all the bits and pieces for a bargain £50.

There are two at the Dartford and Sidcup branch apparently.
But you have to be super friendly to the old boys in the power tool dept, as they have to go and rummage around in the warehouse.

The guy I dealt with happened to be a retired furniture maker, he managed to get the price down from £98 for me.

More fuel for Roger's case.