Comments on Dodgy Deals: Why I believe Dell are breaching Australian sales ...

As an additional note, the presence of an EFT is n...

2008-11-19T01:17:57.747+11:00

As an additional note, the presence of an EFT is not a definitive (or even, in my opinion, relevant) addition to the existence of an agreement between Dell and a purchaser.

If the basis of the purported agreement is not there (ie, offer then acceptance) then there can be no consideration. (Just as there can be no valid acceptance if there is no offer.) However, consideration does not only ensure contracts are made for value, but they can also be indicia for acceptance (eg, to indicate a party's state of mind as to offer/acceptance).

If you run up to a man on the street, shout "I will buy your car for $5," and then throw a five dollar note at him, you're not entitled to a car. Likewise, if you place an order online (where the T&C state that you're the agreement will arise at a future date at the seller's election) and then throw money at their bank account - no action has been taken by the seller other than to record your order, and certainly no indication of acceptance can be derived from your EFT.

Like Johnathon, I'm capably versed in Australian law of contract, Sale of Goods Acts, and also electronic transactions law. It is my opinion that you are simply wrong when you say that Dell are breaching any laws and you're using bad characterisations and misunderstandings of narrow and/or irrelevant material in atempting to prove this.

(I am also one of the many people who ordered from Dell. I don't really expect it to be accepted.)

I'm a slashdot.com reader and came to read the pos...

2008-11-18T23:04:24.001+11:00

I'm a slashdot.com reader and came to read the post, as it called my attention. I'm not a law expert, but I consider myself a reasonable person and I'm not taking sides here, but while reading this post, something came to my mind.

The author of the post quotes
Section 31 from the Sales of Goods Act and uses it as it suits him, but this is misleading, once he comments about it taking just one side of the full meaning of the Section.
I'll explain.
I agree with the author when he says, and I quote: "Just further evidence that payment is NOT a requirement for acceptance."
Indeed, it is not. But the section itself says and I quote, with my comments on it: "Unless otherwise agreed (the disclaimer from Dell's e-mail message), delivery of the goods and payment of the price are concurrent conditions, that is to say, the seller must be ready and willing to give possession of the goods to the buyer in exchange for the price, and the buyer must be ready and willing to pay the price in exchange for possession of the goods."

I would like to stress a bit more that, I'm not a law expert, I'm not taking sides either. I just wanted to share my interpretation from all info I collected from the post. Maybe Dell is really dodgy, but you know the saying... blame the game... Maybe it is time to change and improve the game rules a bit.

mactimes.

Any chance of adding a paragraph to that wall of t...

2008-11-18T20:07:42.351+11:00

Any chance of adding a paragraph to that wall of text detailing the process you used.

From ozbargains.com.au where I assume you posted instructions. It would appear that the following happened.

You went to a certain page where a computer is listed for $799 by Dell.

You then enter an e-code of unknown origin which gives that computer certain accessories for free.

You then go to the customization page and remove those accessories. Doing so removes the pre e-code price of those accessories from the current total price. As opposed to recalculating the total cost.

I believe it would be relevant where you got the code from, how it was advertised and what it's purpose was. I assume if it was advertised it was something like get such and such free accessories for your computer.

If so wouldn't it be similar in some respects to obtaining goods at a discount from a retailer and then returning them and asking for the normal price on a refund?

By removing the accessories wouldn't that mean that even if there was an offer by Dell, you have rejected it by removing accessories? After all the original coupon would have been the offer if there ever was one.

OK, so just to recap what seems to be the main the...

2008-11-17T23:08:00.000+11:00

OK, so just to recap what seems to be the main theme so far:

+ "The buyers that paid via EFT should be entitled to the deal, as payment has been made."
So far people seem to agree with that

And...
+ The buyers that paid by credit card are NOT entitled to the deal, as Dell have not charged the credit cards.

In a one off case I would probably agree with this. But I believe in this scenario it could be argued successfully that a contract has still been formed because.

- It may fall under an 'implied' contract. Dells previous actions could lead (a previous Dell) consumer to believe a contract has been entered into in this example.

- I still believe an 'imprint' scenario is valid. Even in modern day transactions, when you pay at the checkout, the retailer may store your credit card details to later on charge in batches. In this case, the contract is still entered into when the credit cards details are stored by the retailer.

I will agree with jonathon as far as if this were to ever go to court, it would stand little chance against Dells legal weight. BUT, given an even playing field I still believe this case could be argued with a chance of winning.
However, it is only slightly on the winning side of the see-saw to begin with anyway...

My apologies to 'has' for not writing a full trans...

2008-11-17T22:27:03.542+11:00

My apologies to 'has' for not writing a full transparent supported legal argument. It was not my intention as I prefer not to spend copious amounts of time researching arguments to win your vote on an interweb blog post. Instead I was merely trying to point out, as Gregory L stated, that the author has put forth some arguments which I believe are narrowly focused. And I humbly disagree with those arguments, in light of my experience with the law.

Suffice it to say that I do possess a working knowledge of Australia's legal and judiciary systems. My use of the word 'law' in my original comment was intended to be an all encompassing term that not only covered the broad body of statute and regulations as enacted by Parliament which you so astutely point out as being 'the law'. But my use also includes the common law as laid down by the judiciary through precedent decided in case law. Contrary to what I think you are implying, decisions by judges are considered by legal professionals to be 'law'.

In any regard, I did not mean any disrespect to the original author. I give kudos for actually citing relevant case law and statute. But in my humble opinion it (the argument) probably wouldn't get up.

The scenario of swiping the credit card is missing the point - slightly. In my original comment, I was inferring that the taking of the order and credit card details by the website was an automated process. As far as I am aware, no actual debiting took place (except for EFT for which I am not commenting). The swiping of a credit card by a retailer is a positive affirmation by the retailer that he/she is accepting your offer as your transaction is processed on the spot.

This is distinct from the automated Dell website where it appears that Dell does in fact have a process in place whereby an order has to be processed/verified by an actual person - hence possibly explaining why no order has actually gone through. Taking it to the next level, I would say the website is simply an automated process through which Dell collects the customer's information.

Contrast this with some websites which do automatically debit the customer's credit card. In this case I would say the offer was accepted and a valid contract formed, and therefore it would be the company's fault for employing such a practice if they made a mistake with website pricing and an order was confirmed.

Jonathan, the law would not treat the offer scenar...

2008-11-17T21:35:05.110+11:00

Jonathan, the law would not treat the offer scenario in any way whatsoever, the law is a set of rules/regulations made by a governing body. The courts governed by magistrates and judges would decide this issue.

You say the author could argue as much as he likes and that the courts (you said law) would most likely decide it was an offer regardless. Given your suggestion, I suggest that if a judge were presented your argument (which has no support) and the authors argument (which is supported by case law) the judge is more likely to take favour to the authors argument.

You ask "what part of automated do you not understand?". Don't insult the author - especially since you show a lack of understanding of the concept of law.

The people purchasing these items were not knowingly exploiting anyone's mistake. They saw an advertised price - there was no indication that the price was somehow a mistake - and they bought it. Note: being good value is not a mistake or an indication of one.

Please, tell us how Dell did not accept the offer of those customers whom it took money from?

There are no two ways about it - if you take the money you have sold the goods.

Only those customers it had not taken any money from does it stand to win a argument with in regards to whether the contract of sale was fulfilled or not.

I think you are spreading a highly marginal view o...

2008-11-17T21:30:17.885+11:00

I think you are spreading a highly marginal view of the law of contract. Jonathon is quite right in saying that this neatly falls into settled law and there's nothing to distinguish this. I'd be pretty surprised if you've actually completed anything analogous to Contract 101 and still have these misconceptions.

As far as Dell's response in this regard, it's something extra-legal. It's a matter for their PR team, not legal.us

Thanks for the comments Jonathon.Just some things ...

2008-11-17T20:25:12.144+11:00

Thanks for the comments Jonathon.

Just some things I should have added in the original post;

- Consider the older style manual swipe point of sale Credit Card. In a similar manner, consumers have left an 'imprint' of their credit card details with Dell.
As the swipe credit card machines take acceptance of the contract at the point the merchant imprints the card, the same could be held to online shopping methods.

- Many people have paid by EFT. The money has left their account and is currently sitting somewhere in a Dell bank account. For these people, it could be assumed the contract has been accepted by reading the 'order acknowledgment' email.

- Dell needs to accept some responsibility. They have on numerous occasions assured consumers they would have processes to prevent this 'mistakes' from occuring. Obviously, this still has not happened. These mistakes are having an affect on more than those that are trying to get the cheap deal. On numerous occasions, courts in Australia have not accepted 'a mistake' as a valid excuse for this very reason.

Cheers

Argue as much as you like, but the law as it stand...

2008-11-17T19:35:24.468+11:00

Argue as much as you like, but the law as it stands would most likely treat the online offer scenario as just that - an offer.

You quoted the case of Goodwins (Newtown) PTY LTD v Gurry (1959) SASR 295 at 299, where Brazel J said: "I think the words ‘offered for sale by retail’ in an Act designed to regulate retail shopping hours must be constructed in the sense in which those words are understood in ordinary everyday use… The [goods] were ‘preseted’, or put forward, or displayed for sale… This amounts in my opinion, to offering goods for sale by retail."

This situation would be analogous to an item being presented in a retail store and being offered for sale. When you present an item at a retail counter, the retailer is NOT obligated to accept your money. The consumer is in fact the one actually making the offer, and the retailer must accept for there to be a binding contract.

Your arguments seem to be founded on Dell misleading consumers with their automated systems that their order has been accepted. What part of automated do you not understand? The email clearly states that the order has not even been processed, and that there will be payment confirmation once the order is completed, and hence accepted. If Dell has not yet accepted payment (EFT aside), then there is nothing to point to Dell officially accepting the order.

I honestly cannot believe the hypocrisy of people who have the gaul to complain about deals not being honoured when they knowingly try to exploit another person's mistake.