In the famous thought experiment proposed by Erwin Schrödinger, a hypothetical cat in a box may be considered simultaneously to be both alive and dead as a result of its fate being linked to a random subatomic event that may or may not have occurred. For reasons that will become obvious a little later in this post, I was reminded of this as I pondered an article by Conor Pope in the Irish Times last week, in which he reported that the upmarket Irish retail store Brown Thomas [BTs] cancelled online orders after it had mis-priced designer trainers at €10 instead of the usual €150. This is a common scenario. To take only two examples, in 2010, Arnotts, which is now part of the BT group, offered an online deal for €98 televisions which also turned out to be too good to be true; and, earlier this year, Morrison’s supermarket website mistakenly listed premium whisky for £2.50. In any event, this is how BTs responded on twitter to their mistaken overpricing:

To our customers, please note we experienced a pricing error on our website this morning. Orders sold at an incorrect price will be cancelled as per our terms and conditions. We are investigating this technical issue and apologise for any inconvenience.

— Brown Thomas (@brownthomas) August 31, 2022

Unsurprisingly, their next tweet linked to their Terms and Conditions. As I have said frequently on this blog, when someone seeks to accept a mistaken offer, various questions arise:
(1) is there a contract; in particular, do offer and acceptance correspond?
(2) if so, is it affected by the mistake?
(3) if not, (a) do its terms permit it to be cancelled; and (b) if so, are such terms fair?
(4) have any additional protections and cooling-off periods been complied with? and
(5) if there are any claims, what are the available remedies?
These issues are not entirely straightforward (see here, here, here, here, here, here, here, here, here, and here).

If there were, between the purported purchasers of the trainers and BTs, a corresponding offer and acceptance not vitiated by mistake, the question would arise whether terms and conditions apply. BTs’ Terms and Conditions provide:

Order Process
All orders that you place on this website will be subject to acceptance in accordance with these Terms and Conditions.

Non-acceptance of your order may be due to any one or more of the following non-exhaustive reasons:
…
We have identified a pricing or product description error; …

Acceptance of your order and the completion of the contract between you and Brown Thomas will take place when your order has been dispatched. …

At first sight, this order process term suggests that BTs were perfectly entitled to cancel the mistakenly underpriced orders. However, I’m not entirely sure that matters are quite so simple. For BTs to be able to rely on the terms above, there must be a contract, as where a customer offers to purchase trainers for €10 from BTs, and BTs accept the offer and agree to sell the trainers for €10 to the customer. Once the offer and acceptance correspond, there is a contract. But if they do not correspond, there is no contract. However, by the order process term, BTs seek to postpone “acceptance” until the customer’s “order has been dispatched”. Assuming that “acceptance” here is given its normal meaning in the Law of Contract, then this means that there is no acceptance of the customer’s offer until the order is dispatched, it is only then that offer and acceptance correspond, it is only then that there is a contract, and there is no contract before the order is dispatched. If this is so, then, even though customers have offered to purchase €10 trainers, there is no acceptance and thus no contract until they are dispatched. And, in reliance on this order process term, BTs can decline to fulfill the order at any time before dispatch of the trainers. However, this only works if the term is binding. But the term can’t be binding until the trainers are dispatched. Bts want to eat their cake and have it; they want the term to be simultaneously binding and non-binding. There needs to be a contract containing the order prodess term for that term to be effective; but the purported contract, by its very terms, denies that there is a contract at the time they seek to rely on it. As a contract that is simultaneously both alive and dead, it is Schrödinger’s contract.

This is, to say the least, very bad drafting. Given that BTs had the opportunity to draft their terms and to impose them upon their customers, the law says that they have to suffer the consequences of any ambiguities in their drafting – they had the opportunity to get it right, and must take the consequences if they got it wrong. Hence, by the doctrine of interpretation contra proferentem, in cases of “genuine ambiguity or real doubt as to the meaning of the words used”, such ambiguities or doubts are interpreted strictly against the interests of those who drafted them (eg, Burnett v International Insurance Company of Hanover Ltd (Scotland) [2021] UKSC 12 (23 April 2021) [29] (Lord Hamblen)). This would mean that BTs would not be allowed to eat their cake and have it. However, it probably has no practical consequence in this case. Either “acceptance” in the order process term is given a non-technical meaning, and there is a contract by the correspondence of offer and acceptance at some stage earlier than dispatch and indeed at some stage earlier than BTs seek to rely on the order process term, and BTs can indeed rely on the term. Or there is no contract, and the term is unenforceable; but, since there is no contract, BTs have no obligation to supply the trainers at €10 anyway. Better drafting would have avoided this Schrödinger’s contract. And, in future, they many not be so lucky to escape the consequences of their bad drafting.

So, to return to the five questions above:
(1) is there a contract; in particular, do offer and acceptance correspond?
This is one of the binary states of BTs’ Schrödinger’s contract. If there is no contract, the customers’ can’t enforce their bargain €10 orders. If there is, we can move on to the next question.

(2) if so, is it affected by the mistake?
Because the Law of Contract is committed to a policy of keeping parties to apparent bargains, very few mistakes prevent contracts from binding. In fact, it is only where the mistake is a fundamental one that this policy can be overcome; and the mistake will only be seen as fundamental where it alters to the very nature and substance of the contract. Moreover, whilst in principle a fundamental mistake made by only one party will render the contract void, it is very difficult in fact to persuade a court that one has indeed been made. It is an easier claim if the mistaken party can establish that the other party knew or reasonably ought to have been aware of the mistake. So, the first question here is whether BTs’ mistake as to price, admittedly serious, is so fundamental that it alters the very nature of the contract; if it is, then the second question is whether BTs’ customers knew or, more likely, ought to have realised that a €10 charge for designer trainers must have been a mistake.

(3) if not, (a) do its terms permit it to be cancelled; and (b) if so, are such terms fair?
(a) This is the other of the binary states of BTs’ Schrödinger’s contract. If there is a contract at question (1), then the order process term probably permits it to be cancelled.
(b) If it does, then the question is whether that is an unfair term within the meaning of the the European Communities (Unfair Terms in Consumer Contracts) Regulations, 1995 (SI No 27 of 1995), which require such terms to be reasonable; but I don’t think that’s a particularly strong point here – terms dealing with the consequences of mistake are common, and it does not seem unreasonable to me that website vendors would protect themselves against such mistakes.

(4) have any additional protections and cooling-off periods been complied with?
As far as I can see, no issues under this heading arise here.

(5) if there are any claims, what are the available remedies?
If there is no correspondence of offer and acceptance, then there is no contract, the purchasers cannot enforce a sale for €10, and they would be entitled to their payments back. If offer and acceptance do correspond and there is a contract, and if it is invalid for mistake, then again the purchasers cannot enforce a sale for €10, and they would be entitled to their payments back. If there is a contract, and if it is not invalid for mistake, then BTs can seek to rely on the order process term and cancel the contract and return the customers’ payments. It is only if the contract is valid, but the order process is unfair, that customers could enforce the sale for €10. But this is the least likely outcome. Customers might also complain to the Competition and Consumer Protection Commission (CCPC) but I don’t think this is likely to avail them.

However, I wonder why BTs chose to rely on their terms and conditions and cancel the sales. They got pretty terrible publicity last week. In particular, I often wonder how much such online retailers would actually lose if they honoured the orders at the mistaken price. If and when the answer is that the mistaken was caught early enough, then they would probably get much better publicity by honouring the sales. But that is for marketing departments. Meanwhile, the moral of the story is this: BTs’ offer looked like it was too good to be true; and that’s exactly what it was – too good to be true.