Category: Contract

Oh no, not again … yet another mistaken offer

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| Contract, Mistaken offers

Qantas mistake, via OzBargainGrowing up, I remember a tv programme about technology repeating the aphorism that

To err is human; to really foul things up requires a computer

Like many pithy axions, its first usage is unclear. And I don’t remember the particular tv programme on which I heard it. But it is well illustrated today by the following story:


Airline mistakenly sells hundreds of first-class tickets at heavily reduced prices

Qantas … had flights between Australia and the US displayed on its website on Thursday, but instead of advertising the usual rate for these journeys, an error made the flights appear to be up to 85 per cent less than the usual first-class prices. …

The relevant error is pictured above, left. Though it does not appear on the Quantas news site, a statement by a Qantas spokesperson cited a coding error, and said this was “a case where the fare was actually too good to be true”. If something looks too good to be true, that’s because it usually is. And this is not the first time that an airline’s website has really fouled things up. For example, in 2008, an Irish airline listed transatlantic business-class flights for €5 plus taxes; in 2012, a US airline listed flights to Hong Kong at four air-miles plus taxes and fees, or about $35; and, in 2018, a UK airline listed flights between Dubai and Tel Aviv for £1.…

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Duress in Contract and Restitution for Unjust Enrichment: Lessons from Mistake

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| Contract, Contract, Restitution

Pressure and mistakeVia Steve Hedley‘s Private Law Theory blog, I am delighted to learn of Charmaine Chang “When a Contract Falls Short: A Special Case for Restitution under Duress in Unjust Enrichment” (2024) 6 City Law Review 30 (CityLR (pdf) | SSRN); the abstract provides

The English law of unjust enrichment deals with situations where it is unjust for someone to receive a benefit without paying for it. Duress is one of the unjust factors that allows for restitution.

The recent approach of the court assumes the same test for duress in contract and unjust enrichment as in CTN Cash and Carry. This is problematic in cases where there are no valid contracts in play. First, this obscures the normative foundation of unjust enrichment. The higher threshold for establishing duress in contract law is justified by its own principles and aims which are not present in unjust enrichment. Second, the existing grounds of recovery that centre on the application of pressure to the claimant and third-party cases in duress show that duress in unjust enrichment is primarily claimant-sided. It is not concerned with the reprehensible conduct of the defendant.

This article argues for a lower threshold to establish duress in unjust enrichment.

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Of Schrödinger’s contract and ambiguous terms: when a website mistakenly lists designer trainers for €10, do their ambiguous terms and conditions apply?

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| Contract, Mistaken offers

Schrodinger's Cat, via FlickrIn the famous thought experiment proposed by Erwin Schrödinger, a hypothetical cat in a box may be considered simultaneously to be both alive and dead as a result of its fate being linked to a random subatomic event that may or may not have occurred. For reasons that will become obvious a little later in this post, I was reminded of this as I pondered an article by Conor Pope in the Irish Times last week, in which he reported that the upmarket Irish retail store Brown Thomas [BTs] cancelled online orders after it had mis-priced designer trainers at €10 instead of the usual €150. This is a common scenario. To take only two examples, in 2010, Arnotts, which is now part of the BT group, offered an online deal for €98 televisions which also turned out to be too good to be true; and, earlier this year, Morrison’s supermarket website mistakenly listed premium whisky for £2.50. In any event, this is how BTs responded on twitter to their mistaken overpricing:

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Supermarket website mistakenly lists premium whisky for £2.50 – do their inconsistent terms and conditions apply?

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| Mistaken offers

From today’s Guardian:

Morrisons mistakenly lists £2.50 whisky

The retailer identified the pricing error on its website before any bottles were sold

Mark Twain reputedly said: “Too much of anything is bad, but too much good whisky is barely enough.”

Online shoppers at the supermarket Morrisons came close to testing his theory when the retailer accidentally priced bottles of a Scotch whisky at just £2.50, a 93% discount from its usual price of £36. …

Whisky lovers piled in, posting their delight on social media, only to discover their big orders had been thwarted at the last minute.

The pricing error was identified by Morrisons, and due to minimum unit pricing legislation making the charge per bottle illegal, the retailer cancelled all orders before they were actioned. …

Glenlivet Caribbean Reserve on MorrisonsAs the image (left) from Morrisons’ current website implies, someone must have mistakenly entered £2.50 instead of the intended £25.00. But Morrisons were able to play the get-out-of-jail-free card of Scotland’s minimum unit pricing legislation (in force since 2018) prevented the offer from taking effect. Ireland has similar legislation (in force since the beginning of this year). However, if they could not have played that card, would they have been bound to sell the whisky for £2.50?…

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Ryanair, chargebacks, unfair terms, and lawful act duress

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| Contract, Contract, Unfair Contract Terms

Ryanair Check In, via Wikipedia (element)

1. Chargebacks

If you pay for a transaction by a debit or card, and there are problems with it, you may be entitled to a chargeback, which is “reversal of a disputed sales transaction on a credit or debit card. … The card provider will decide if you are entitled to a refund based on the circumstances. …”. Assume you booked a flight some time ago, but, on the day of the flight, the destination was one in respect of which Government guidance was, for Covid reasons, that you should not travel. Let us further assume that the flight nevertheless operated, so that it was not cancelled, and the airline refused to refund your ticket price. In those circumstances, you could seek your money back via chargeback from your card provider. In most such circumstances, card providers do indeed decide to make the refund.

Now, let us assume that the airline in question is Ryanair. Article 7 of their Terms and Conditions deals with circumstances where they refuse to carry a passenger; it provides, in part:

Article 7 – Refusing to carry a passenger
7.1
We may refuse to carry you or your baggage on any flights operated by an airline of the Ryanair Group, if one or more of the following circumstances apply, or we have good reason to believe that they may apply.

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Hallowe’en special: the Stambovsky v Ackley “Haunted House on the Hudson” is for sale!

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| Contract

1 Laveta Place, Nyack, NY 10960, via Google Streetview (element)Pictured left is 1 Laveta Place, Nyack, New York, NY 10960, a charming riverfront home at the end of a pretty tree-lined cul de sac in an historic village north of New York city. It has recently been put up for sale (realtor; more information). Even accounting for the almost $2m price tag, this would be an unexceptionable sale of a circa-1890 Queen Anne Victorian with panoramic views over the Hudson River, were it not for the property’s central role in Stambovsky v Ackley 572 NYS 2d 672 (NY App Div 1991) (pdf) (blogged here). It has five bedrooms, four bathrooms … and three poltergeists – but when its owner, Helen Ackley, put it up for sale in 1989, she failed to tell buyer Jeffrey Stambovsky about that last detail. The story of the house is extensively told here and here; the defendant, Helen Ackley, is pictured here; and, in an article entitled “Our Haunted House on the Hudson” in the Reader’s Digest for May 1977 (extracted here), she described her family’s experiences of hauntings in the house. Given that she had sought this notoriety, when she later came to sell the house to Stambovsky, she was precluded from denying that it was haunted; and, in the words of Rubin J for the majority in the Appellate Division of the Supreme Court of New York (in a ghost-pun-laden decision), it followed that “as a matter of law, the house is haunted” (there is legal analysis here and here).…

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The legal effects of some butterfly-effect typos; including mistaken offers, and restitution of mistaken payments

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| Contract, Mistaken offers, Mistaken payments, Restitution

The Book of Kells is one of the great treasures in the Old Library in Trinity College Dublin. It is a manuscript of the Four Gospels in Latin based on the Vulgate of St Jerome. It was written and illuminated in the ninth century, probably in part in a monastery on the island of Iona in Scotland, and in part in a monastery in Kells, Co Meath, Ireland. Though a great medieval treasure, it contains some typographical errors. For example, the Gospel of Luke has an extra ancestor in the genealogy of Jesus (Luke 3:26; pictured left). It seems that the scribe read “qui fuit mathathiae” as “qui fuit mathath | iae” and thus wrote “qui fuit mathath” (the first line in the picture on the left) and “qui fuit iae” (the second line in the picture). Even Homer nods.

I was reminded of this when I recently read an article by Tom Lamont about the effects of electronic typos: an SMS misdirected to a wrong mobile phone number (leading to a marriage!); a satnav directed to Rom (in Germany) rather than Rome (in Italy); a jet from Sydney directed to 15 degrees 19.8 minutes east (and landing in Melbourne) rather than 151 degrees 9.8 minutes east) (bound for Kuala Lumpur).…

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Can you get out of the purchase of a house, if you find out later that someone had been murdered in it?

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| Contract

Get directions 16 Stillwell Dr, Wakefield WF2 6RL, UKThe question in the title was provoked by Ciara Kenny‘s House Hunter column in today’s Irish Times, where she ask Would you buy a house someone had been murdered in? I don’t think I would. And if I did, I’d be stuck with it, since the answer to the question in the title to this post is that you can’tget out of the purchase of a house, if you find out later that someone had been murdered in it. Ciara’s column is a diary of her travails trying to purchase a house in Dublin in today’s crazy property market (as she put it on twitter: it’s an effing nightmare). From today’s column:

Every old house has its secrets. Last summer, a gorgeous house came up for sale which we spent weeks deliberating over. But we couldn’t shake a bad feeling we had about the surrounding streets. So when bidding climbed above what we were willing to pay, we were relieved for once. … [Later, my partner found] a decade-old RTÉ news report about a man stabbed to death by a burglar on the stairs. … I don’t think I would be able to shake the image of that poor man’s violent death every time I walked upstairs.

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