Am I still considered to have entered into a contract if I don't receive the other party's acceptance?

Question

I sent a purchase order via email to a company to supply and invoice for around £200 worth of equipment on behalf of the organisation I volunteer for.

I did not get a response after a few days, so sent a follow up email via a contact form on their website, and posted on their facebook page (also no response). All this time, their phones were not being answered either.

After a week and a half, I wrote off the idea and purchased what I wanted from elsewhere. At the beginning of this week I received a notification from a courier that my package was on the way and it was from this company.

Tangentially, the package didn't arrive next business day as per the courier's email, so today I phoned to find out why and it hadn't been booked into their warehouse properly. I told them not to bother delivering it and to return to sender.

I followed that up with an email to the company explaining that their lack of response led me to assume they weren't going to supply what I asked for and that I couldn't understand why they sent me the equipment before receiving payment, despite us having no prior relationship.

They have now replied saying they issued an invoice on the 16th, with 30 days payment terms (the original order was sent on the 11th) and that as I'm now returning the items they expect me to pay their re-stocking fee which amounts to about £50.

I have refused on the grounds I've laid out above.

My question: their website terms state "When an order is placed online, by telephone, email, post, or in person, the order will be considered as accepted by [company name] when you checkout online and complete payment, or (if not shopping online) when we supply an invoice to you."

At what point does is it deemed that they have supplied an invoice? If they sent one and it genuinely disappeared into the ether, have they supplied it in the eyes of the law? I can prove without a shadow of a doubt that I've had no email from their domain into our (Office 365) domain until today, but that doesn't preclude the email disappearing before it got to us. From their perspective they have accepted the terms of my request even if I haven't recieved notification of it.

This is on the assumption they genuinley sent an invoice, which even if they didn't they can fudge proof of.

I am a domain admin on our O365 and can see the email is not in quarantine or in any way hit our Exchange server. Even if it did, that doesn't excuse their lack of response to my follow-up email or facebook message.

Answer 1

No

The contract is created at the moment that an offer was accepted. In normal circumstances:

1. You accepted an offer that they made to the general public by sending a purchase order for specific items at specific prices, or
2. They accepted your offer by communicating their acceptance to you (being advised that the goods have been dispatched counts).

However, in this circumstance, the company has been explicit that the contract is only created when either:

1. You checkout and pay, or
2. They “supply an invoice to you.”

It appears that neither event happened so there is no contract.

Their specific terms have overridden the common law rules on offer and acceptance (as they are allowed to do) and the offer has not been accepted until you receive their invoice. Specifically, it cannot be accepted by performance (dispatching the goods) and the requirement for the invoice to be supplied overrides the postal rule.

Note that, in this case, you got lucky. 99 times out of 100 there would have been a valid contract and you would have breached it. In future, cancel orders specifically, don’t make assumptions.

Answer 2

Am I still considered to have entered into a contract if I don't receive the other party's acceptance?

You might be, especially if the company arranged for the delivery prior to you giving your notice of withdrawal. You should have informed the company about your decision as soon as you "wrote off the idea", since that would have conclusively remove the company's power of acceptance. Your reminders of follow-up reinforce the company's impression that its power of acceptance remained, which increased the pertinence of notifying a cancellation.

At this point your best option is to stick to the definition of supply in that the company's failed attempt to give you an invoice falls short making it available to you: If the invoice did not reach its destination because it disappeared "into the ether", the invoice was never available to you. That being said, the delay of your notice of withdrawal might have forfeited this option because an invoice or its equivalent typically is included or implied in the delivery of a package.