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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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A company cold called me on the 15th October 2013 offering

Resolved Question:

A company cold called me on the 15th October 2013 offering advertising space in a book. I agreed after a long discussion that I would be interested and was asked to email the following words...these were dictated to me during the call....this email is to confirm booking of a single entry in the official RREC phantom album at a rate of £795 plus vat.

I received an email on the 16th October.....confirming the details. I did not receive this email but have been sent a copy by the company with a read receipt attached. The email asked me to confirm receipt by return. I did not do this....

On the 14th feb I received an invoice and immediately responded saying I was no longer interested. I am now told that I have entered into a contract and need to pay or pay a 100% cancellation fee.

Is this correct. I have not signed anything which is the norm when buying advertising space from other companies
Submitted: 3 years ago.
Category: Law
Expert:  Joshua replied 3 years ago.

Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

May I ask when you understood that the Album in question was going to print please?

Customer: I believe that it is due to go to print sometime in Nov 2014. I have not been asked for any copy as yet ....just for payment in full
Joshua :

Thanks.

Joshua :

What did you believe you were doing when you send the email that was dictated to you? Were you happy to commit at that point but changed your mind later or did you believe the email you were sending didn't commit you?

Customer: I have always had to sign a proforma with previous advertising elsewhere and assumed this would be the case here
Joshua :

Thanks. This is potentially difficult however the single line email you sent to them on its own is not necessarily conclusive on its own. there is no need for you to sign a pro forma or sign a formal contract agreement in order for a contract to arise. it is quite possible to form a legally binding contract verbally but the reason contracts are typically reduced to writing is to avoid the possibility of a dispute if relying on a verbal contract

Joshua :

therefore, you need to be very careful what you agree to on the telephone as it is quite possible to form a legally binding contract by what you say on the phone providing the terms have been sufficiently explained or agreed to enable the terms of the contract to be ascertainable from the conversation and is clear acceptance on your part by your words

Joshua :

accordingly, I consider the first step would be to refute acceptance on your part of any agreement and require them to send you a copy of any recording they made of your telephone conversation with the company. if they have not retained one, this significantly weakens their position as it allows you to potentially relatively easily avoid the contract on the basis you claim that you understood the service a proposed was very different to that offered - e.g. you understood that you were paying for a double page spread when they are only offering a small entry or you understood that the publication would be circulated to a specific target audience when it is not and so on

Joshua :

the other issue is the confirmation email they claim to have sent you. This in itself is potentially problematic because if they sent you this confirmation, and you did not immediately respond rejecting the same, this potentially weakens your position. If you genuinely believe you did not receive this email, you may wish to check with your email provider to ascertain whether they have any server records of the email being received. In addition, you can ask the advertising company to disclose the full header information for the email showing the server information confirming the email address sent, ip addresses and so on. this information is difficult to fake as distinct to an email printout which can be doctored. in addition, if you still have email records using Outlook or something similar today checking these so far as you have not already done so.

Joshua :

the position here is that if you find they have a recording of your conversation where terms are clearly explained and you accept the same, providing the service they are offering does accord with the terms agreed between you during our conversation, this is going to be a difficult arrangement to get out of the stage Particularly if they can sustain that the confirmation email was sent to you. if however they are unable to produce any recording of your conversation and they are not able to produce any further evidence of the email they claim was sent to you and received by you by way of server header information, you can consider seeking to avoid the contract on the basis that the service they are offering is not that which you agreed to on the basis you considered that the service was something very different - you may go on to elaborate on the service you understood you were agreeing to which is very different to that offered

Joshua :

the only basis I can see that you can avoid the contract is the above because you cannot simply say you did not agree to the contract because even if they cannot produce a recording and cannot prove the email they claim was sent to you any further, they still have the email you sent to them which based on the wording you have provided, clearly shows an acceptance of an appetising entry in the quoted album and price agreed. You cannot ultimately dispute that so the only approach remaining is to avoid the contract on the basis of failure on their part to provide the service you contend was agreed - namely, a very different service to that that they are offering.

Joshua :

is there anything above I can clarify for you?

Joshua :

Does the above answer all your questions or is there anything I can clarify or help you with any further?

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with please reply back to me though.

Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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