RE: FW: Shop@Kodak DX3700 Digital Camera

["Mark Hetherington" <mark.egroups@xxxxxxx>]

> You can't magic away a contract you don't like. If
"mistakes" could be
> simply forgotten,

Although generally tru, this is not a completely accurate statement. A
serious mistake of fact will render a contract void. Mistake as to identity
may render a contract void, etc. But I digress, the point will come down to
whether the contract has been made at that point. Since there are no
specific legal provisions and no case law specific to sales by email and
the
Internet, this will remain a grey area until legislation or a court ruling
decides the matter.

However, using statute, a contract is between two (or more*) parties and an
autoresponder is not a legal personality so is unable to enter into a
contract. This would be the first step towards suggesting that a contract
does not exist. The obvious counter argument would be to identify the
autoresponder as a facet of the corporate legal personality, but I do not
think we are ready as a society to have autoresponders with legal status :)

* Contracts (Rights of Third Parties) Act 1999

Further, I would refer to Pharmaceutical Society of Great Britain vs Boots
(1953) which was one of the cases identifying goods offered for sale as
being invitation to treat and not an offer. The case ruling is that the
sale
(and therefore the contract) only takes place when the customer offers the
money *and* the vendor accepts the money. Kodak have not accepted the money
so the contract was not made.

> The Small Print argument here is not as powerful as it seems. This
applies
> in Scots law, but I suspect English Law has a direct equivelant:
contracts
> may not contain misleading terms, or terms which shift the balance of
the
> contract too far in one direction.

The equivalents you refer to in English Law are most likely covered by
Unfair Contract Terms Act, 1977 and more specifically in this case Unfair
Terms in Consumer Contracts Regulations, 1999. Various other Acts often
come
into play in such issues.

> For instance, a contract which gave me the right to increase my prices
> whenever I wished in the small print, and specifically stated
> that it could
> not be cancelled within the time period, would almost certainly
> be deemed as
> invalid in a court of law.

Revoking the right to cancel would be illegal as would refusing a right to
cancel when making a change to the price post offer. Additionally, Distance
selling Regulations 2000 provide an explicit right to cancel in law for
products bought without face to face contact.

The right to raise prices would not be an unfair contract term since it is
a
right of a vendor to raise prices. I suspect that is not what you mean
though and I do not see why you linked the two things together.

> The "shop" metaphor has been discussed. Here's another view
of that:
>
> I see a product advertised in the shop window, at an exceptional, but
> believable price.
> I go to the Counter, and ask to purchase.
> I am asked how I wish to pay.
> I offer my credit card, which is swiped in an old fashioned
"paper" Visa
> machine.
> The Visa Slip is returned to me, as my receipt.
> I go to collect the goods, and am told *there* that the price is
wrong.

However, that is assuming the card has been swiped. The analogy is likely
to
be a guy just went to type the information into the till and told you
before
the card was swiped that the price was incorrect as is more likely to
happen
in a shop.

Mark.