On Wed, 26 Mar 2008 23:20:55 +0000, Alex Heney
wrote:
>On Wed, 26 Mar 2008 14:00:11 +0000, Peter Parry
>wrote:
>
>There is no defence of "reasonable steps" except in the case where the
>price indication has only become misleading after having been given.
Yes there is, it is provided by S39
"Defence of due diligence.
39 (1) Subject to the following provisions of this section, in
proceedings against any person for an offence to which this section
applies it shall be a defence for that person to show that he took all
reasonable steps and exercised all due diligence to avoid committing
the offence."
>But it is irrelevant IMO anyhow, since I do not accept that there
>would be any point in having the law if the retailer were allowed to
>charge a higher price than the one indicated.
The law is about misleading price indications, not about selling at
the misleading price.
>Which you are saying they can merely by telling the customer at the
>till that is the price.
I'm saying it makes no difference whether they are told of the error
at the till or elsewhere because the law does not make it an offence
to _sell_ at the misleading price but to _offer_ at a misleading
price. If the difference is pence the retailer will often sell at the
lower price as it makes good commercial sense to do so. If the
difference is greater they might chose not to.
If a shop marks an item misleadingly it commits an offence. It
doesn't eliminate that offence by selling to those that spot it at the
marked price.
Quite separately from the price marking is the contract of sale. The
shop can refuse the sellers offer and make a counter offer (of the
correct price) which the buyer is free to accept or refuse.
If such errors occur infrequently the due diligence defence would
hold. The shop is carrying out reasonable steps to prevent errors
which the law accepts will happen in any human structure. If they
happen frequently the due diligence defence would fail.
>>>I believe that this law only makes any sense at all if those steps
>>>inform the customer *before* he reaches the point where payment is
>>>requested.
>>
>>If that was the case the law would say so. It doesn't, and no
>>reasonable interpretation shows it was ever meant to.
>I think my interpretation is a lot more reasonable than yours.
Your interpretation is based upon a mistaken belief that the drafters
of the law were concerned that the buyer is put at a weaker position
if the price change is only notified to them at the till.
>I do see your point. And I can accept that no attempted sale needs to
>have taken place if TS have access to the computer data (in the form
>of output from training mode tills).
>
>But I still say that according to the act the price is only misleading
>if the goods are not available at that price.
The price is obviously not misleading if the goods are available to
all buyers at that price without them having to ask. It simply
becomes a normal purchase. However, selling at that price only to
those who spot the error (including the very first to do so) does not
evade the offence.
Once aware that there is an error the retailer should correct it, but
to do so they do not need to jump through hoops such as clearing
everyone out of the store or telling people about the mistake before
they get to the checkout.
>It doesn't say they are misleading if they are (also) available at a
>different price, but only that it is misleading if they are not
>available at that price.
If that was the case they could misprice everything and as long as one
checkout out of 45 was operating to the marked prices no offence would
be committed.
For the purposes of section 20 an indication given to any consumers
is misleading as to price if what is conveyed by the indication is
that the price is less than in fact it. Selling to those that spot
the error at the marked price or selling some at the marked price
isn't a way of avoiding this as it is impossible to say how many
others have been mislead.
>>If your interpretation was correct no pricing check TS might make
>>would be worthwhile as for every error the trader need only say "I
>>wasn't going to sell it at that price" and they couldn't prove
>>otherwise .
>
>Maybe nobody has suggested to the stores they try that defence :-)
That in effect was part of the defence MFI based, and lost, their
appeal on.
>Incidentally, I presume that prior to the introduction of computerised
>tills, they *could* only prove the offence by somebody attempting to
>make a purchase.
Prior to automatic tills this sort of problem really didn't exist.
Both the cashier and customer relied upon the same price label on the
item being sold. Making a purchase is a simple way of proving a
mis-pricing case but it isn't the only one. The origins of this part
of the Consumer Protection Act were to stamp out the misleading
indications I've mentioned before; false sales, reductions when there
were none, offers which were not available.
|