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Bob (in New Zealand) is on the hunt for a specific, a bit bulky and heavy device all over the world. He finds it at a web store in Spain for a good price. They ship internationally: shipping cost is automatically calculated upon providing an address. Bob, happy with all the costs, places an order and pays by credit card. The card gets actually charged.

A few days later, when the purchase already appears finished on the card's online statement, the store emails Bob: shipping cost to NZ is triple the one you've paid. Do you wanna pay the difference or cancel the order and get the refund?

What does the Spanish law say about situations like this? Is the store obliged to honour the contract and ship at the original cost, or is there no contract (only invitation to treat)? Even assuming that there is a contract (money was actually taken, not just authorized), is the store allowed to say "sorry we made a mistake as to the shipping costs" and just pull out?

Note that the store effectively has no specific terms and conditions (the relevant page on their site is filled with "Lorem ipsum..."), so the default law, whatever it is, apparently applies.

If the store is obliged to honour the original deal, are there any regulatory authorities lodging a complaint to which would teach the store some good manners? Would this matter, if pursued by Bob, be a small claims matter in Spain given that the total bill is about €2,000?

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  • I don't know about Spain in particular, but the general rule in Europe about a change in price after the deal was made is that it's only possible if the seller obviously made a big mistake. The standard example for this is a misplaced decimal point (making the price of the goods a factor of 10 off). This could apply for shipping costs (e.g. the seller used a terribly wrong weight for calculating the estimated costs), but unless the shipping cost makes up a large percentage of the final price, I would not consider this a major error.
    – PMF
    Commented Nov 29, 2022 at 8:23
  • @PMF Good start. Do you know the magic words what will convince the store to honour the deal?
    – Greendrake
    Commented Nov 29, 2022 at 8:26
  • I'm not a lawyer nor a psychologist, so that's going to be hard. The one thing I'm not sure about is in particular whether it makes a difference that shipping is billed separately. I need some googling there.
    – PMF
    Commented Nov 29, 2022 at 8:31
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    @Jen I think Greendrake is a step ahead and asks: "If the law is in my favor, how do I politely tell them so?" Would be a good separate question IMHO.
    – PMF
    Commented Nov 29, 2022 at 8:37
  • @PMF Your first comment isn't correct for England and Wales at least (I don't know about the rest of Europe). I've elaborated in my answer.
    – JBentley
    Commented Nov 29, 2022 at 10:53

3 Answers 3

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France is not Spain, but both are civil-law jurisdictions, so I expect this answer to be marginally more applicable to the original question than answers based on common-law countries.

Listed prices are binding on the seller, even if mistaken

Price tag errors (whether physical or electronic) usually involve low amounts of money, so there is not much jurisprudence on that point. Let us start by discussing Cour de cassation, Chambre civile 1, 04 juillet 1995, 93-16198, where the highest French court endorsed a 1993 court of appeal ruling, because it illustrates some relevant principles.

A jewelry store put up a ring for sale for 100 000 francs (equivalent to roughly €20 000 in 2021), which someone bought. The store later realized that there was a mistake in the price tag (the intended listing price was more than four times higher) and sued to revert the sale.

The court of appeals judged that

  • as a general rule, mistakes in price tags are a risk the seller takes;
  • the buyer could reasonably think the asked price matched the true value of the ring, and therefore it was not "unrealistically low"

The latter point refers to a statute (Code Civil 1169) that says a contract of something-for-money is void if the price is "unrealistically low". The ruling essentially says that the test for "unrealistically low" is whether the buyer should reasonably be aware that the price is due to a mistake from the seller.

I doubt a store can rely on the "unrealistically low" provision in the case of shipping fees. A random consumer has no way to accurately know the price of overseas shipping. Even if they did think the shipping fees were much lower than expected, it might be because the store chooses to charge something else that their exact costs, for whatever reason (e.g. uniform shipping fees is easier to maintain on their website that one cost for each country; some stores are "free shipping" meaning they recoup their shipping costs with higher item prices).

No surprise fees

The seller might argue that their shipping costs were unknown, and that the shipping fee they charged was a provisional estimate, or conditional on a later determination of the true cost.

Code de la consommation, L112-3 says that when the total price of the item or service sold "cannot be reasonably known in advance [of the sale]", the seller must provide advance notice to the buyer, as well as the method by which the unknown components of the price will be later determined. No such notice appears to have been made.

Online sale: when is the contract formed?

The seller might argue that clicking "buy" on an online shopping cart does not form a contract, but that they reserve acceptance at a later date. The other answers seem to indicate that is a valid practice in some common-law countries, but I believe that is not the case in France. I could not find court cases on exactly that point, and therefore cannot be sure that the rest of my answer is correct.

I believe the seller is bound by the terms offered on the website, based on Code Civil, 1127-1 and 1127-2.

Quiconque propose à titre professionnel, par voie électronique, la fourniture de biens ou la prestation de services, met à disposition les stipulations contractuelles applicables d'une manière qui permette leur conservation et leur reproduction.

L'auteur d'une offre reste engagé par elle tant qu'elle est accessible par voie électronique de son fait.

(...)

Le contrat n'est valablement conclu que si le destinataire de l'offre a eu la possibilité de vérifier le détail de sa commande et son prix total et de corriger d'éventuelles erreurs avant de confirmer celle-ci pour exprimer son acceptation définitive.

Whichever business proposes by electronic means the sale of goods or services must allow the contractual conditions be be recorded and reproduced.

The author of an offer is bound by it as long as it is accessible due to his or her actions.

(...)

The contract is formed only if the recipient of the offer could check the details of his or her order, its total price, and could correct possible mistakes, before confirming the order to formulate his or her definite acceptance.

"Due to his or her actions" means I cannot screenshot an Amazon page (or duplicate it on my web server) and request the conditions of that screenshot two years later. However, it does not include provisions for mistakes in the listed price or sales conditions, and I would expect the general rule (price tag mistakes are on the seller) to apply on the internet.

The last paragraph cited is a consumer rights provision - essentially, "no contract is formed unless the consumer did X". However, it implies that once the consumer did X, the contract is formed.

Contract enforcement

For the above reasons, I believe clauses that allow an online store to unilaterally cancel an order once placed are unenforceable (unless force majeure or other narrow exceptions apply). That being said, the incentive to sue in such cases is low (and I could find no jurisprudence).

In France (and I believe in all systems), civil liability is established by three factors: a damage, a wrongful action, and a causation link between the two. In the jewelry case, the store could easily prove the damage (difference between the price at which the sale was made and the price at which the item was estimated), and the causation link between the consumer’s action and the damage; however, there was no wrongful action.

In the case where the exchange of goods against money has been blocked by the store, the consumer’s problem is to prove damage. If they have not been charged, or if they have been charged but refunded, the direct monetary impact is zero. The consumer would have to prove other theories of damage: for instance, that they relied on the ordered item to do something, and could not find a replacement in time. However, in all such scenarios, the causation link will be hard to prove.

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  • About your last point: I have learned that in this case (when the seller doesn't deliver, or doesn't deliver in time if that is crucial), the buyer can order the item from someplace else and sue the seller for the difference in cost.
    – PMF
    Commented Nov 29, 2022 at 14:13
  • @PMF That might be a US thing? My understanding of US tort law is that if you are found liable for (e.g.) breach of contract, you are liable for the cost of any curative measures undertaken by the plaintiff, with a rather lax review as to whether those measures were reasonable. French courts have a much stricter view. The causation link between "store A does not deliver the item in time" and "I had to buy from store B" can be difficult to prove (maybe you could have gone without the item, or bought it from store C where it was cheaper).
    – KFK
    Commented Nov 29, 2022 at 14:37
  • no, that's what I learned in Switzerland. But reading trough it, the law is quite unspecific for these details, I need to look for a commentary.
    – PMF
    Commented Nov 29, 2022 at 14:45
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In , the general rule is that goods listed for sale on a website are an invitation to treat. This a common law (rebuttable) presumption which is derived from the principle that all advertisements of goods for sale are invitations to treat (Partridge v Crittenden [1968] 2 All E.R. 421). This means that the offer is only made when the customer places an order, and the offer can then be accepted or rejected by the retailer.

It is common practice for retailers to explicitly reiterate this general rule in their terms and conditions. For example, see the following clause at paragraph 1 under the heading "Conditions of Sale" in amazon.co.uk's terms and conditions:

Your order is an offer to Amazon to buy the product(s) in your order. When you place an order to purchase a product from Amazon, we will send you an e-mail confirming receipt of your order and containing the details of your order (the "Order Confirmation E-mail"). The Order Confirmation E-mail is acknowledgement that we have received your order, and does not confirm acceptance of your offer to buy the product(s) ordered. We only accept your offer, and conclude the contract of sale for a product ordered by you, when we dispatch the product to you and send e-mail confirmation to you that we've dispatched the product to you (the "Dispatch Confirmation E-mail").

Accordingly, whether or not the retailer can change the price depends on what has happened between the order being placed and the attempted price change. If the retailer had already accepted the order then the contract has been formed and the general rule is that the price cannot be changed. To determine whether or not there had already been acceptance by the retailer, you would need to consider the contract wording (none in your case) as well as the conduct of the parties and the precise wording of any exchange correspondence up until the point of the attempted price change.

An exception to the general rule (that the price cannot be changed after acceptance) is where there is an obvious mistake which the purchaser tries to take advantage of. In Hartog v Colin & Shields [1939] 3 All ER 566, the offeree tried to accept a mistaken offer of to sell 3000 hare skins for 10d per pound instead of the 10d per piece which had been discussed during negotiations. It was held that they could not ‘“snap up” an offer when that party is aware that the other has made a mistake relating to the offer terms’.

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  • Where is "the general rule is that goods listed for sale on a website are an invitation to treat" written? Wouldn't the automatic settling of the credit card charge (which Amazon, by the way, doesn't do until the items are shipped) mean acceptance of the offer anyway?
    – Greendrake
    Commented Nov 29, 2022 at 11:29
  • Amazon is a special case, because they don't typically sell the products themselves, but more act like a market place.
    – PMF
    Commented Nov 29, 2022 at 11:32
  • @PMF I merely cited Amazon as an example because it is well-known. You can find similar clauses from many other online retailers. See for example clause 2 here.
    – JBentley
    Commented Nov 29, 2022 at 11:37
  • @Greendrake It is a common law (rebuttable) presumption which is derived from the principle that all advertisements of goods for sale are invitations to treat (Partridge v Crittenden [1968] 2 All E.R. 421). As a rebuttable presumption, you could indeed argue that the act of processing the credit card transaction indicates acceptance (given the absence of a contrary intention since you have no written terms in your case). This would fall within considering "the conduct of the parties" per my answer.
    – JBentley
    Commented Nov 29, 2022 at 11:45
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The basic article about the creation of a contract, including a contract to buy goods, is OR, Art 1:

The conclusion of a contract requires a mutual expression of intent by the parties.

The mutual expression of intent is given if the core parts of the contract are set, which are the goods to ship and the price to pay.

It appears that for online-transactions, the teaching is that this is the case as soon as you click "Order Now". Generally (OR, Art 7) an offer is only binding for goods displayed in store (and not e.g. on brochures), but that law has never been adjusted for online sales, and it must be assumed that an offer in the internet is binding, because its acceptance is also binding for the client.

Art 23 states that

A party labouring under a fundamental error when entering into a contract is not bound by that contract.

This is followed by a list of cases that consider a fundamental error, and a (comparably small) error in the price is not part of that list.

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  • triple shipping costs is not a small error
    – Trish
    Commented Nov 29, 2022 at 13:33
  • 1
    @Trish Depends on how that relates to the overall costs. And an error in calculating one's profit from a sale (or, related, the production cost) is not a fundamental error in the sense of the law, as I understand it.
    – PMF
    Commented Nov 29, 2022 at 14:06

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