Calling Legal Eagles

Blacktemplar

Need a bit of advice chaps (and chapesses)....

Teenage son took a 24-month contract out with Carphone warehouse that ended in August last year. From about March he was bombarded with "you can upgrade your phone 3 months before your contract ends" messages, so naturally he wanted a better phone and in late May we went in and did just that.

So far so good.

Wind forward to yesterday, he's now working part-time and wants his own contract (previous one was in my name) so we go back in to Carphone undr the impression that his previous contract had ended last August and he could take a new one out.

Should've known better.

It transpires that when you "upgrade" you are effectively taking out a new contract which runs from the point at which you take the new phone, so in this case 27 months from end May 2010, and the next time he can "upgrade" is May 2012 :evil:

Back in May we were only given the usual Carphone printed receipt, with the customary "light" printing. I checked it last night and fair enough, in small text near the bottom (mixed in with a load of other gubbins) it says "minimum contract period 24 months". On the T's & C's on the back (which you need a microscope to read) it says the contract cannot be cancelled. However, at no time were we actually advised by the sales person that we were effectively entering into an entirely new 24-month contract with the "upgrade" phone. Had we known that, we wouldn't have renewed as there were better deals to be had.

My question is this - do we have a leg to stand on legally? The only thing I could think of was "mis-selling of a product or service" but as it's my word against theirs I have my doubts as to whether it would make the slightest bit of difference. The laugh is he'd be happy to take on a new 24-month contract with them as the current deals are good.....

Apologies for the rambling post, but would appreciate views from the assembled might of the forum.

Thanks.

Weejie54

Back in May we were only given the usual Carphone printed receipt, with the customary "light" printing. I checked it last night and fair enough, in small text near the bottom (mixed in with a load of other gubbins) it says "minimum contract period 24 months".

It appears that you only had this information on a receipt - that is after you made the purchase or signed the contract. The service provider is supposed to give information before you take out the contract. If all they say is "it's in the small print" then the small print being on a receipt is not doing them any favours.
You are up against Talk-Talk. Noted for being bar stewards. However, it might pay to persist with them and try and get the contract signed over (suggestions that you will be in touch with Ofcom etc). If they have any sense, they will play ball.

DIESELDOG

Hmmm, you can't really go for Discharge of Contract under SOGASA (1982) as there has been no breach, frustration, (apart from yours!), and performance is there.

Sections 6 - 10 deal with contracts for the hire of goods.

You could try to argue mis rep or mistake as to contract under general contract law. Wouldn't hold your breath but it's worth a shot.

It's been a while since I did law so these are the only things that spring to mind.

Love n hugs

DD

Weejie54

Hmmm, you can't really go for Discharge of Contract under SOGASA (1982) as there has been no breach, frustration, (apart from yours!), and performance is there.

It appears that a transfer of contract is required, rather than a discharge. Talk-Talk may have some ruling saying they can't transfer but they will lose out if the customer terminates at the end of the minimum period. If faced with the prospect of a complaint made to them for mis-selling and the customer eventually moving to a new provider or simply transferring responsibility to the person who is using the phone, it would seem sensible to go for the latter. The legal aspect could be put aside in this instance.

DIESELDOG

Weejie54 wrote:

Hmmm, you can't really go for Discharge of Contract under SOGASA (1982) as there has been no breach, frustration, (apart from yours!), and performance is there.

It appears that a transfer of contract is required, rather than a discharge. Talk-Talk may have some ruling saying they can't transfer but they will lose out if the customer terminates at the end of the minimum period. If faced with the prospect of a complaint made to them for mis-selling and the customer eventually moving to a new provider or simply transferring responsibility to the person who is using the phone, it would seem sensible to go for the latter. The legal aspect could be put aside in this instance.

So that takes you to section 7 of SOGASA?

My brain hurts...

Love n hugs

DD

Weejie54

So that takes you to section 7 of SOGASA?

Possibly, but is there an implied term concerning transfer of a service rather than possession of goods?

DIESELDOG

Weejie54 wrote:

So that takes you to section 7 of SOGASA?

Possibly, but is there an implied term concerning transfer of a service rather than possession of goods?

Is the contract not classed as goods? You take out a contract and get the phone foc!

Brain freeze...

Love n hugs

DD

Harry B

I think you will find that you had the conditions when the contract was signed and you are probably tied in to it. Can you explore other options, negotiate good will gestures with them?

Weejie54

Is the contract not classed as goods? You take out a contract and get the phone foc!

I doubt it.

I think you will find that you had the conditions when the contract was signed

It seems not - they have to be made plain at the point of sale. Service providers have had their knuckles rapped for not doing so.

I would agree that negotiation on a goodwill basis might be a first port of call.