I rejected my online shop as items were missing - can Tesco still charge for delivery? DEAN DUNHAM replies
Last week several items in my Tesco online grocery shop were missing when it was delivered, so I rejected the order in its entirety.
Now Tesco has charged me the delivery fee and says it’s entitled to do so. Is Tesco not in breach of contract for failing to deliver the goods I ordered?
G. Moore, Basildon, Essex.
Incomplete: A reader rejected their online grocery order because several items were missing but Tesco still charged a delivery fee
Dean Dunham replies: In most situations a contract is formed when the selling party offers goods for sale and the buying party then accepts the offer and pays for the goods.
In law, this is referred to as ‘offer, acceptance and consideration’ and these are the core ingredients needed to form a binding contract.
However, the position is often different in the retail sector.
Retailers will often cite in their terms and conditions that the advertisement of the goods for sale is an ‘invitation to treat’ and that your decision to buy amounts to the ‘offer’ element of the ingredients for the contract, meaning the ‘acceptance’ element is the retailer accepting your order.
Retailers’ terms and conditions will, therefore, usually say that they only ‘accept’ your offer at the point they deliver the goods and the affect of this is that if it transpires they cannot deliver – typically because they are out of stock – they can do so, as at this point no contract has been formed.
Unsurprisingly, this is precisely what the Tesco delivery terms and conditions state, so you cannot claim breach of contract.
But your question has a better outcome. Section 26 of the Consumer Rights Act states that consumers do not need to accept deliveries ‘in instalments’ unless this was agreed at the point of purchase.
This means that if part of your order is not delivered, as in your case, you can reject the whole order and should not be charged anything for it.
The only exception would be where the trader (in your case Tesco) had clearly informed you that there would be a charge if you rejected the whole order because of missing items.
My view is that this is not the case here, so you are entitled to a full refund from Tesco.
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Building contract is all Greek to me
I had an extension built and it’s been a disaster. The builder has done a bad job and failed to meet building regulation requirements.
I’ve lodged a claim in court but my Greek builder has put a defence in saying that the work has been done to his usual quality and the contract is governed under the laws of Greece so I cannot sue in the English courts.
He’s right – the contract does say this – but I never noticed when I signed it. Where do I stand?
S. Kemp, Bedfordshire.
Dean Dunham replies: The Consumer Rights Act 2015 says that services – such as a builder providing building works – must be performed with ‘reasonable care and skill’.
This is measured by what a ‘reasonable’ builder would have done, and from what you say, it appears clear that this builder’s work has fallen below the required standards.
Your best evidence for the case here is that the work does not satisfy the building regulations. His defence in this regard is almost certainly going to fail.
The next part of his defence (the jurisdiction point) is novel and interesting, but the good news is that it is also going to fail in my opinion.
The clause stating that the law of Greece applies to the contract amounts to what the Consumer Rights Act calls a ‘key term’ and says that such terms must be ‘made prominent’ to the consumer pre-contract.
You clearly did not realise this was in the contract so it’s unlikely that your builder can satisfy that it was made ‘prominent’.
Then he will further come unstuck with Section 32 of the Consumer Rights Act, where a clause states that an overseas law applied to a consumer contract is not binding if the contract has a close connection to the UK.
Given your works under the contract were being performed at your property in the UK there is clearly a ‘connection to the UK’.
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