expired vouchers - unfair terms ?

[Jimzzr]

Hi, has anyone had any successes in challenging expired vouchers (only by a couple of weeks) using unfair terms legislation. I guess one problem is that the voucher holder is not the purchaser, although I guess it can be assumed that the purchase would not have expected the voucher to become a gift to the company. To what extent does the holder have a contract (if at all) with the company.

 

I guess there afew fairly weak arguments e.g. some companies will replace expired and some won't, this company doesn't state. The print is too small to easily read. Complete forfeit is too drastic a response to delayed usage and in no way reflects the costs a company might incur.

 

If I thought I had enough of a case to avoid being asked to pay costs in the small claims court I'd do just because it would cost them a lot more to turn up than it would cost me.

 

What do you guys think?

 

Cheers

 

Jim

[Jimzzr]

your best bet is to get back to the person who bought the gift and ask them to intercede. If they are willing to do this get them to ask for a suitable extension period and if the company refuse get them to ask for a refunsdfor non-performance of a contract. This is a difficult path to tread as there are no hard and fast rules, it is down to a judges decision on the day if it goes that far. generally the company wants to keep the moneyand will be happier to have a fixed date for the voucher use than fight a battle that could cost much more then the gift itself.

 

Unfortunately they were a prize from an organisation and I don't think there's much hope of them interceding. I suspected this might be a barrier to bringing a claim. Does the recipient have any rights at all in law? If not seems a bit poor considering these products are designed to be transfered to a recipient.

[Jimzzr]

Look up jus quaesitum tertio for rights of 3rd parties in a contract. Which term did you think was unfair?

 

OK so, under the Contracts (Rights to third parties) act 1999, since the original contract was expected to benefit the ultimate recipient I have some (all?) rights of the purchaser. Regarding what was unfair, good question I hoping people on here would have some suggestions in addition to what I mentioned obove.

 

Quickly looking at the OFT unfair terms in consumer contracts act guidance, it would seem that omission of information could be considered unfair

 

To what extent would the company be expected to make clear to the third party the terms of the contract?

 

I would have thought that in addition to having an expiry date the consequence of failing to comply shoul also be made clear.

 

Expiry is clearly only a benefit to the company. BBC news estimated that around 6% of the money is never spent.

I would argue that purchasers never intend for any of the money to default to the company , given that this appears to be on average around 6% , I would suggest that it is in general terms unfair to any purchasers of voucher with expiry dates. Perhaps companies should be forced to disclose the % value per annum of expired vouchers at the point of sale?

[Jimzzr]

If the expiry date is made clear, I don't understand why you think an expiry date would be unfair. Can you elaborate on this?

 

It would be more helpful if you were to tell me why doesn't the following apply to what I wrote above.

 

Test of fairness

 

 

 

A term is unfair if:

• Contrary to the requirement of good faith it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of consumers.
  
• 'Good faith' means that you must deal fairly and openly with consumers. Standard terms may be drafted to protect commercial needs but must also take account of the interests and rights of consumers by going no further than is necessary to protect those legitimate commercial interests.
  

The plain language requirement

 

According to the UTCCRs, a standard term must be expressed in plain and intelligible language. A term is open to challenge if it could put the consumer at a disadvantage because he or she is not clear about its meaning - even if its meaning could be worked out by a lawyer. If there is doubt as to what a term means, the meaning most favourable to the consumer will apply.

[Jimzzr]

From my perspective, every voucher needs an expiry date. You wouldn't expect to be able to use with a voucher in 20 years time. I think the concept of an expiry date is very clear and should be understood by the consumer when he purchases the voucher so I don't see how it causes an imbalance in the conusmer's rights and obligations.

 

I can see an expiry date being challenged if (1) it is not clear to the consumer or (2) if the expiry date is ridiculously short. I can't see a challenge just because there is an expiry date ... this would mean that the voucher is valid forever and ever, I cannot see the courts accepting that.

 

Except that there are plenty of companies who seem to manage quite well without expiry dates. I don't believe there is any real operational need for an expiry date.

1) As time goes by the chances of an old voucher being cashed are going to decrease - many will have been permanently lost and

 

2) inflation will mean that they are worth considerably less in real terms anyway.

 

I think it would be perfectly reasonable for a company to expire old voucher designs for fraud and operational reasons (e.g. retailers only taking new designs) and make a charge for re-issuing new vouchers. And some companies will issue new vouchers so it doesn't automatically follow that expiry=worthless.

 

I don't see that the sudden and irrevocable loss of all monetary value serves any purpose other than to avoid payment. Is that compatible with " going no further than is necessary to protect those legitimate commercial interests."?

[Jimzzr]

You say that it is fair for a company to "expire old voucher designs" or "charge to reissue vouchers". So, you accept the principle that vouchers cannot be valid forever and must expire sometime. For this reason I don't think it is unfair to have a fixed expiry is that is made clear to the consumer at the time the voucher is purchased. This is surely better than an arbitrary date chosen by the retailer in future.

 

Another point which nobody has mentioned, I imagine the retailer would say that the UTCCR test does not apply to an expiry date as this is a fundamental term of the voucher. See section 6 "(2) In so far as it is in plain intelligible language, the assessment of fairness of a term shall not relate–(a)to the definition of the main subject matter of the contract, or (b) to the adequacy of the price or remuneration, as against the goods or services supplied in exchange."

 

Well that's not actually what I said is it. What I said is that they can do what they like regarding expiry so long as the monetary value is maintained.

 

Historically, very few (if any) companies had expiry dates on vouchers so why is it now a necessity (for some).

 

I don't think it's guaranteed that section 6 (2) would apply. The main subject matter is a voucher. The definition of a voucher does not in any way depend on whether or not it has an expiry date and b) the value is not questioned since it was clearly the expectation of the purchaser that it could be exchanges for good to the value printed on it.

 

If these expiry dates were required for a genuine operation need, then why not simply donate the acquired funds to charity? They don't because, in essence, they are morally bankrupt rip-off merchants.

[Jimzzr]

I see where you are coming from Jimzzr. Happy to help if you want to issue a claim on this, my personal view is it would all come down to whether the expiry date is clear at the time of purchase. If the expiry date was buried deep in the T&Cs I can see how it could be an unfair term, especially if it is a short period, but if the expiry date was clear when the voucher was purchased then I think it will be very difficult to challenge.

 

If you decide to issue proceedings do let us know if you need any help and let us know how you get on, it would be very useful for others.

 

I can afford to throw a bit of cash at this but it would be usefull to know what the worst case would be if I lost. I guess I would be looking at the fees plus £90 but wouldn't have to pay their solicitor costs.

 

It's been good to thrash the idea around on here, and has given me a good idea what points to make and the relevent legislation.

 

You never know, maybe I'll get luckly and get a judge of an aging relative with a draw of expired vouchers!.

 

 

I guess my next step is to draft a notice before action letter, and see what they say.

 

Jim