Ecommerce websites tend to make the details of the sale a contract. For example a website that auctions used cars states predominantly:

Your bid is a contract between you and the listing creator. If you have the highest bid you will enter into a legally binding purchase contract.

Sometimes as with anything this has errors. An error I have witnessed is the textual description and the photograph not matching. In such a case it could be unclear exactly which car was being purchased.

There is a concept of Contra proferentem. From wikipedia:

Contra proferentem, also known as "interpretation against the draftsman", is a doctrine of contractual interpretation providing that, where a promise, agreement or term is ambiguous, the preferred meaning should be the one that works against the interests of the party who provided the wording.

How would such a situation be resolved? While one interpretation would be that the seller is the draftsman so the buyer to get the choice of cars, it is likely that there are two buyers (one for car in the photo, one for the car in the text), and they will both want the more valuable car. I am particularly interested in English/Welsh law, if other jurisdictions differ that would be interesting. If the outcome would be different if one buyer was in England and one in Scotland that would be of particular interest.

  • It gives you an error message such as: HTTP Error 401 (Unauthorized); HTTP Error 400 (Bad Request); HTTP Error 404 (Not Found); HTTP Error 403 (Forbidden); or HTTP Error 500 (Internal Server Error).
    – ohwilleke
    Commented Dec 15, 2023 at 22:25

2 Answers 2


Sales platforms try to resolve such in the ToS

Let's assume the auction platform in question is eBay. Their TOS dictate

For motor vehicles and real estate, a bid or offer initiates a non-binding transaction representing a buyer's serious expression of interest in buying the seller's item and does not create a formal contract between the buyer and the seller,

So in the case of eBay car sales, the contract is explicitly not yet formed, it's a pre-contract that is executed upon inspection and checking by the buyer. For all other items, the contract is formed in the auction:

You enter into a legally binding contract to purchase an item when you buy the item, commit to buy the item, your offer for the item is accepted, you have the winning bid for the item, or your bid for the item is otherwise accepted, regardless of when payment is due or received,

So, the contract is binding. But for which item? The photographed green box or the described red box? Who is responsible to make clear which is the item?

You assume full responsibility for the item offered and the accuracy and content of the listing,

As a result, the seller is the draftsman of the contract for the offered item. But which is the offered item for the sale? The Picture or the text? That can be solved in court:

partial discrepancy

In a case from regarding the sale of a car on a used car website, a depicted extra was missing, the text did not include the extra in either a positive or negative way (e.g. "Extra is present" or "Extra not included"). The BGH decided: the car not matching the picture was a defect that could require fixing. Only if the text had explicitly said, that the extra would not be sold with the rest of the car, it would not need to be included and there was no "Mangel".

extreme discrepancy and clarification request

In case the buyer inquired with the seller on the discrepancy in , the additionally provided text can beat the picture wholesale, as explained here: the clarification was that the item is a very specific part number, which might be cryptic but it is much more precise and might beat the picture. However, it also might be that due to request no proper sales contract was formed. The buyer pretty much tried to say "I want to buy the Green box in the photo" the seller said "I will deliver the red box from the text" - there is no meeting of the minds. In this case, there would be no contract. The very same BGH case did not say that the picture trumps the text always, only that if the picture does include something quite likely belonging to the item and the something is not mentioned in the text as not included, then the something is included.


The same way it is without the web page

These types of cock-up were not invented with the internet and there is literally centuries of case law to inform us. However, these cases are intensely fact specific and “the textual description and the photograph not matching” is extremely light on facts.

Notwithstanding, the analysis goes something like this:

  1. What was offered for sale. The terms of the offer may make it clear that the text or the picture is definitive of this. For example, a catalogue will show a generic item, not the specific item, in that case it’s clear that the textual description is stating what is actually for sale.
  2. What did the buyer intend to buy. If the buyer intended to buy what the vendor intended to sell then there is a binding contract and any shortcomings may amount to a breach of that contract. If there was a common mistake or mutual mistake at law then there is no contract.
  3. Consumer law may impose penalties and/or grounds for voiding a contract if applicable.

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