By Luo Yanjie
With the rising of E-commerce in the retail industry, the protection on the consumers’ interests thereby emerges has been ever attended to. This article will discuss the problem of “wrong price”. Let’s take a look at the following example:
In August of last year, we saw a panic shopping (note: the link is in Chinese) on the books labeled RMB 50 which shall be RMB 1800 in origin in the book promotion on Dangdang.com (NYSE: Dang), Soon after, however, dangdang.com refused to deliver the books arguing the “wrong price” and thereafter cancelled orders. That triggered the right protection by thousands of consumers, and lawsuits filed in succession. Yet the court rejected part of the claims, and held that the contract has ever been concluded on the order cancellation, and therefore the website shall not be responsible for it. Now we would like to share the opinions with readers as follows:
I. When is a contract with E-commerce set up concluded？
The establishment of Contract is the legal basis of trading behavior. In internet shopping, judging whether the contract set is the same as judging the information on webpage is “offer” or “an invitation to offer”. For this problem, one opinion is that, the information released on website introduces the name of commodity, performance, appearance, specifications, quantity, quality, price and other information with pictures in detail and the time of performance, performing method made specific provision. The content is so specific and clear that should belong to the “offer”. The other opinion is that display goods’ information is “offer invitation”, because the website message object is not specific. And the quantity of goods which is necerrary for a contract is cleared for the first time until purchasers click to buy.
On the dispute, the author agree with the latter opinion an Internet shopping, information on webpage belongs to the “invitation to offer” in internet shopping. In the above case, the court also held that dangdang.com didn’t confirm 2 orders. In user agreement dangdang.com signing with the users, two orders’ contracts are not established. In fact, the court endorsed the webpage information belongs to the ” invitation to offer”. In addition, although the user agreements are standard terms (Standard terms are contract provisions which were prepared in advance by a party for repeated use, and which are not negotiated with the other party in the course of concluding the contract. “Contract law” provides that if a standard term excludes the liabilities of the party supplying such term, increases the liabilities of the other party, or deprives the other party of any of its material rights.), but the decision made by court shows that the court recognized the user agreement at present.
Accordingly, if E-commerce sign “wrong price”, as long as the contract is not set up according the agreement with users (generally delivering goods is the condition of the establishment of a contract), the E-commerce can cancel the order and need not bear the responsibility for compensation according to the above case.
II, Whether E-commerce can cancel the contract after the establishment of the contracts
If E-commerce find the “wrong price” after the contract is established, , does that mean E-commerce can only trade with users at “wrong”? The author tries to analyze as follows:
” Contract law ” stipulates that in article fifty-fourth:“Either of the parties may petition the People‘s Court or an arbitration institution for amendment or cancellation of a contract if:(i) the contract was concluded due to a material mistake;(ii) the contract was grossly unconscionable at the time of its conclusion.” But for the situation of “wrong price”, some special cases meet “serious misunderstanding ” situation, but does not meet “unfairness “. Because according to the interpretation, unfairness is defined as “a party take advantage of the other or the other lack of experience, make the rights and obligations of 2 parties not equal, it can be deemed as unfairness. ” In the situation of “wrong price”, the user did not “take advantage ” and E-commerce are not lack of experience.
For the contract constitutes a “significant misunderstanding”, not all situation of “wrong price” can meet. Because E-commerce is often unavailable to prove they signed a “wrong price” but not a breach of contract. For example, in the above case, the court found that ” dangdang.com only using their own investigation can’t proved the ‘wrong price’ and can not measure a contract constitutes a major misunderstanding only by cost. ” Of course, in some apparently “wrong price ” situation, the court will also support E-commerce. For example, in 2007, one seller on Alibaba.com price each car for 10.8 yuan, a buyer wants to pay 40000 yuan price for 4 cars. Because the final price and the actual value of the goods gap is too big, the court finds that the contract is invalid.
III. How to safeguard rights when consumers encounter “wrong price”
The most direct means to safeguard consumers’ rights ( such as the previous case is prosecuted ) is suit: if the contract established, consumers may require dealers to continue to perform the contract. If the contract is not formed, although consumers can also sue their “contracting fault liability “. In general, consumers haven’t actual loss because of the “contract” was not set up, it has little practical significance to pursue E-commerce ” the contracting fault liability ” ( it is difficult to get compensation ).
In addition, although in the case of that contract established, consumers may request the business to continue to perform the contract, but considering the procedure need a lot of energy and material, we recommend that consumers taking other means at first, such as complain to the consumer protection association or disclose on the Internet. In competition intense today, most dealers will take immediate remedial measures, as far as possible to meet the reasonable demands of consumers. If after means above, E-commerce still ignore, consumers can file a suit but also not too late.
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