Bob is a customer of Acme ltd., an online service provider (e.g. domain names, hosting etc.).

It's time for Bob to renew some of Acme's services he is using, so he logs in to his account and sees this message:

Hi Bob! Thank you for using Acme ltd. To help us serve you better, we'd like you to fill in your user details.

Get a 5% OFF promo code after you complete your profile.

That's it. There are no links to any T&C/fine print. As Bob later finds out, the existing T&C say nothing about this offer.

Acme actually already has some basic Bob's details: name, email, phone, address. What they are looking for is details about his occupation, job position, what he values mostly in Acme's services, whether he is in the position to make decisions to buy their services and so on. In a nut shell, marketing stuff that Acme will use to figure out how they could possibly suck more money out of Bob and/or the company he is working for.

Bob scratches his head and thinks: "well, for a 5% discount code I wouldn't mind answering those questions", and proceeds. At the end he gets a discount code.

But when he tries to use that code for renewing services, it does not work.

Upon contacting customer service, it turns out that the code is supposedly valid for purchasing only a certain subset of Acme's services. Those particular services that Bob is using are excluded. Acme would not provide a code that works for those services.

Bob thinks "Okay guys, we have a contract. I spent my time providing you my additional details you wanted, and now you've got to give me a code that works. There was no indication that the code would only work for a limited range of your services on that page that made the offer".


What remedy can Bob expect if he takes Acme to court? Can it be specific performance "provide a 5% discount code that works for the services Bob is using"?

Bonus question:

Presumably, Bob can't take this to a small claims court because the value of the claim is undefined. He can define it by renewing the services he wanted to renew, and claiming 5% of the amount. However, would renewing the services now (knowing that Acme does not want to provide a discount for those particular services) not ruin the case?

1 Answer 1


Did Acme have the obligation you suggest?

You are essentially asking whether

Get a 5% OFF promo code after you complete your profile

creates an obligation for the service provider to

provide a 5% discount code that works for the services Bob is using

This is a question of contractual interpretation that cannot be conducted in the abstract.

Proper contractual interpretation takes account of the background facts that that were or reasonably ought to have been within the knowledge of both parties at or before the date of contracting. Whether the extended meaning that you suggest is the actual meaning of the contract depends on more information than is available in the question. See Sattva Capital Corp. v. Creston Moly Corp, 2014 SCC 53: "[t]he meaning of words is often derived from a number of contextual factors, including the purpose of the agreement and the nature of the relationship created by the agreement."

The Court also quoted with approval language from Lord Hoffman (emphasis mine):

The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean.

Remedy: expectation damages

If there was a contractual obligation to "provide a 5% discount code that works for the services Bob is using," and Acme breached that obligation, the normal remedy would be expectation damages. Specific performance is highly unlikely. It is an exceptional, equitable remedy. And some small claims courts do not even have the jurisdiction to award specific performance.

Expectation damages is the money that would put Bob in the position he would be in had the contract been performed. One can keep this claim within small claims court jurisdiction by confining the amount sought to an amount within the jurisdiction of the small claims court.

Bob does not have to go through with a purchase in order to have evidence about expectation damages. E.g. if Bob can show on a balance of probabilities that he would have been $40 better off had the contract been performed, then that would be the expectation damages.

Buying the services does not "ruin the case." I don't know what this would mean.

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