David Lock

I’d be interested in your thoughts on this matter about the nitty-gritty of English Contract Law.

Now I run a small business selling goods by mail order. I send some packs overseas generally using the PO. Sometimes I insure these goods for the amount the customer paid including postage. In September 2006 I send a pack worth £200 to Namibia, which I insured, and it didn’t arrive (probably “lost” in J’Burg on route).

I claimed on the PO for £200. They checked that the claim was genuine and then flatly refused to pay out the full amount as they won’t pay for the profit, VAT or overhead element of the supply. I can understand why they do this but my point is that I wasn’t told this when I purchased the insurance cover in good faith and I was not given any paperwork/receipt pointing to the PO’s small print.

As far I am concerned a Contract was established when my money was accepted. If the chap behind the counter had said “you realise that we won’t actually pay the insured amount if the goods are lost” then that would have been a different matter and would have become a “counter offer” which I could have accepted or rejected.

I have written to the PO saying that a Contract is a Contract and, legally, they cannot duck out of it. So what do you reckon?

Of course I will cave in but it just annoys me that a big organisation can ride roughshod over a small business and, in the process, ignore one of the fundamental tenets of law. Let me add that I was a buyer for many years so I do know my way around Contract Law but I don’t have any qualifications in this field. dl

BlkKnight

I believe it's standard practice. . . .

We ship a lot of goods both foreign and domestic. Using 7 ish different couriers.

One lucky incident aside, we can only claim for the goods at "cost" and for the outbound delivery charges.

Brendan Hughes

If standard practice, does that make it "implied terms due to custom"?

David Lock

And I bet with your couriers you sign the docket with a mass of small print on the back which explains the position regarding insurance?

Like I said I can understand why the PO do this but their procedures are wrong. d

David Lock

I have no idea

In one of my many letters to the PO I did ask on what basis they seemed, to me, to be ignoring Contract Law but, of course, my question was ignored completely. It also means that I have been paying too much for their insurance for many years for every pack I have insured with them. d

Santas Elf

hmmmm.....

Interesting one, as technically you had a contract with the PO to deliver the package to Africa, which when the parcel became 'lost' rendered the contract as 'Frustrated' or in other terms it was now impossible to complete the contract due to circumstances outside of your control.... Law Reform Act (Frustrated Contracts).

Section 2 of the act pertains to insurance; (5) In considering whether any sum ought to be recovered or retained under this section by any party to the contract the court shall not take into account any sums which have, by reason of the circumstances giving rise to the frustration of the contract, become payable to that party under any contract of insurance unless there was an obligation to insure imposed by an express term of the frustrated contract or by or under any enactment.

Therefore as the contract contained an insurance policy, which will pay out, then the courts will factor this in and it's likely that any claim by you will be thrown out anyway, in light of the 'insurance' taken out. But even without insurance the Act only covers reasonable expenses... rather than actual cost plus profit.

Just a thought..... interesting one though, especially concerning their employee implying different terms, as this would again allow them (PO) to frustrate the contract and pay 'reasonable' costs to you.... need more coffee...

Brendan Hughes

Eh? You're talking about calculation of damages due to breach/frustration of contract. He's talking about the express or implied terms of the contract of insurance at time of signature, ie how much would be covered.

If he gives up on claiming on insurance and then goes on to sue for damages, your point is valid. But (AIUI) this is about the amount directly claimable under the insurance policy.

I've had 2 coffees already. Was that enough, or too many?

DCI Gene Hunt

I never said I was answering his question .......

Scoobychick

iTrader: (1)

Good cop-out

DCI Gene Hunt

Thanks I do try ........ although its not my fault dl asked the wrong feckin question!! coupled with the fact Brendan OBVIOUSLY has a supply of coffee on tap

Brendan Hughes

True - but at the same time severely damaging the theory that Santa's Elf and DCI are two different people

DCI Gene Hunt

............... The games afoot

Santas Elf

It sure is

David Lock

Silly me. I do apologise.............

DCI Gene Hunt

No worries, luckily I knew what you were meaning to ask...

David Lock

well fecking answer it then........

Brendan Hughes

David, IIRC there are express contract terms (you can see them or, more often, get pointed in their direction), implied contract terms (you guess them) and unfair contract terms.

If there's small print somewhere on a page you signed which says a copy are available on request / over there on the wall behind the bin, they are express and you're probably stuck with them. The exception is (usually) when you can't see them until you've signed, eg they are printed on the receipt given afterwards.

Terms are implied when both parties think they're obvious. Key test was "if you knew of them or were expected to know of them, would you have still signed the contract?" I think there's also something about expertise of parties in there, so implied terms between two car dealers about buying a car would be different from dealer selling to little old lady. Not sure where that puts you as you're in the mail order business, makes you sound like "you should have known".

I don't imagine unfair terms apply here.

The above is 20 yrs old and very hazy (and probably incorrectly mixed with legal principles from totally different issues), but might give you something to think about...

DCI Gene Hunt

Implied terms, as my learned frien Mr Hughes quite rightly states are either expressly agreed by the parties (you and the PO) or implied by law. The implied terms are necessary because generally the parties do not discuss certain elements of the contract when making the agreement.

Eg. When buying food in a supermarket you placing an apple on the conveyor means you have expressly agreed the type, quantity and price.

You don't normally say "can we agree as to what my rights are should I discover a dead insect inside the apple" as these are 'implied' rights, as the seller has to supply goods that are of merchantable quality.

Ahem.... the problem you appear to be having is down to 'descirption' whereas you thought (as you had not been told otherwise) that £200 meant up to £200 as a gross cost wherein reality it meant "your net item cost"...

Your contract is made on the description of goods, therefore the description must meet that description applied to them otherwise its a misrepresentation which entitles you to either set the contract aside or claim damages.

I think you would have a case using description...

David Lock

My Lords............

Thank you for your interesting and learned comments. There certainly wasn't any small print or statement on the docket that "Terms & Conditions Apply" which is what I would have expected so that PO could cover their backs.

Oh well I guess we'lll never know as I can't be arsed to take it any further except to possibly write another snotty letter to the PO - but that will be primarily to make me feel better. Of course I am strictly dealing with two parties being the Royal Main and the PO who I think are separate entities?

Now go and have a Christmas beer and don't forget to take your wigs off

PaulC72

Maybe it is an imposter?

Brendan Hughes

Wasting the Court's time - down to the cells and await sentencing


Glad that's over. Cor, horsehair doesn't half itch...

DCI Gene Hunt

The wigs a bit OTT but I'm liking these high heals