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Orange Breach of Contract?

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#1
LordPringle

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I'm writing this on behalf of my sister as we do not know where to go next with this. Excuse the length of this, but it is important.

In December of 2006, my sister signed up to an 18 month Orange contract at £35 per month, plus an additional £6 per month insurance. The reason she signed up with Orange was for the phone, which was pink, and no other network provided that particular phone in that colour.

At the time she purchased it, which was in an Orange High Street shop, she was told the Insurance would cover her if it broke, and she would receive a like-for-like replacement within 24 hours, same colour. All fine so far. She then asked about network coverage in two areas; University and Home. She was told that in both areas they had complete coverage, and there would be no problem. She was told however that there was a 'mast problem' in our Home area, which would be rectified within a couple of weeks, i.e. January 07. She took them at their word and signed the contract.

Now she is finished University for good, and is back home. At home she cannot receive any coverage, thereby Orange either lied about the home coverage, or their computer system isn't up to scratch. Either way, its mis-selling.

Her phone has also broken within the last week. So she called up to ask for a replacement, and they said they had no pink phones left, and probably would not be getting any more in. They did however say they would send out a black phone. Heres the stupid part. They DO NOT send out batteries, so she was TOLD by orange to use her pink battery, and attach it to the black phone. Black front, partial pink and black back. How stupid do they think their customers are?

So at the end of the day, she refused the black phone because they said they would replace it with a pink one - which again is why she signed up for the contract. So they are again mis-selling their products/services. They are also refusing to cancel the contract, despite the fact there is no network coverage in this area - which they said there was.

My question is this. Where does she go from here? We have been on the phone every night since Friday, and absolutely no one within Orange will help, they wont cancel the contract, they wont send out a pink phone. So my sister now has a futher 12 months left on the contract, with no phone - despite her insurance, and no network coverage. Does that not strike you as serious mis-selling? How can we get Orange to cancel the contract, or what do we do? She does not have the money to buy out her last 12 months of the contract, and does not see why she should have to when Orange are not fulfilling their contractual obligations.

Any help would be greatly appreciated on this! Thank you for reading.

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#2
phill_holland

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There are methods of ending contracts (namely when the contract is what is called frustrated). A frustrated contract is basically a contract that can no longer be fulfilled due to mittigating circumstances for example your sister when she signed a contract was on the understanding that her home coverage was fine. This is obviously not the case and in this instance the company can redce there own liability recognising that for what ever reason the mast problems are out of there control. Secondly, have a look at the contract your sister signed regarding insurance espically the detailing of replacement, this is often the wording will be along the lines of " a replacement will be offered where possible, if we are unable to provide the same model a suitable alternative will be offered".



However your sister is well within her rights to cancel the contract if she feels that her service level agreement has not been met. My advice would be discuss witht he phone provider the issues, if possible get written documentation of there stance, and if your sister is not satisfied approach OFCOM for advice or your local advisory agency such as CAB for assistance where quiet often there is a lawyer on hand who will assit you in drafting your letters.



Hope this helps

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#3
Confucious

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Some points:
Did whe get any of this in writing? In my experience they will deny ever telling her that she would get a Pink replacement or that she would have coverage - they cannot gaurantee coverage anyway .

The replacement phone is the insurance contract so is not covered by the phone supply contract with O - The only get out clause would be if you can prove they said you would def have cover which will be difficult if not impossible.

They are replacing the phone with a different model so HAVE to replace the battery as well.

It is VERY difficult to get out of a contract wiyth a mobile phone company - many people have tried and failed. A letter from a lawyer might help but I think the best you can hope for is a replacement black phone (with black battery) - a verbal contract isn't worth the paper it's written on. Unless you have anything in writing I have a feeling you might be disappointed.

Might be worth puting your complaint in writing to O.

Good luck

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#4
farmgorgon

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There are methods of ending contracts (namely when the contract is what is called frustrated). A frustrated contract is basically a contract that can no longer be fulfilled due to mittigating circumstances for example your sister when she signed a contract was on the understanding that her home coverage was fine. This is obviously not the case and in this instance the company can redce there own liability recognising that for what ever reason the mast problems are out of there control.


This is not correct. A frustrated contract is one which cannot be performed due to an event or action outside the control of the contractiung parties. If O said they had coverage in this area, and they do not, then- assuming a court would believe this was a term of the contract- their inability to provide this is a breach of the contract, allowing her to terminate, or waive the breach and sue for damages.

Obviously she should choose the former. Practically she has two choices- cancel the DD payment, and wait for O to pursue her in the courts, and use the above as a defence, or continue paying the line rental and escalate the matter with OCS, OFCOM, or commence a claim in the Small Claims Courts.

a verbal contract isn't worth the paper it's written on


this is also incorrect, and a common misnomer. It is obviously more difficult to prove what the terms of an oral contract are. She should seek to prove that the reassurances of the O customer services person that there was coverage in the area mean that this fact is a term of the contract. I actually think that if this came in front of a judge that her chances of being beleived are quite good- can you see O tracking down and sending the CS agent in person to court for the day to deny her story?

FG

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#5
Confucious

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I could be wrong but I would be very suprised if O's contract didn't say in the small print that it was binding and unless it was in writing nothing else constitued part of the contract. In which case O don't need to defend it, it is up to the customer to PROVE that something else was agreed, hence my comment that in this case it is not worth the paper it is written on

I could be wrong but if it says anything agreed verbally does not form part of the contract and the written contract was signed....

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#6
darrengf

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There are a few things you need to do first.

First of all you need to write a letter to both Orange and Ofcom and wait for you reply. Normaly you have to wait for you reply from Orange first before contacting ofcom as ofcom can only help if you are not satisfied with the response.

Again if you are not satisfied, you then re reply and forward to ofcom telling them you are doing this.

Regarding your network coverage, you need Orange to first see what the fault is and ask them when they are going to fix it. Again take a snap shot of the coverage on your internet and send it to them. They then need to update there map as they are miselling.

Regarding the phone, well this is a slight grey area.

If you read T + C's closely it does say that Orange can provide you with a non like for like if the phone isnt ava, They also can provide you with an alternate phone etc. They dont have to replace the battery, but if you tell them that your batter is faulty after receiving the phone thy will prob send you one out any way.

I know this doesnt answer the pink phone thing, however if you havnt damaged the phone and the phone has just stopped working then either send it back to the manufacuture. You still have 12 month warranty and they generaly will fix it.

If you need any thing else, please ask.

However Orange can do what ever they want, There T+C's have a clause for everything and this is one of the reasons i left them and that there customer care sorry to say is now non exsitance.

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#7
pjheliking

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There are a few things you need to do first.

First of all you need to write a letter to both Orange and Ofcom and wait for you reply. Normaly you have to wait for you reply from Orange first before contacting ofcom as ofcom can only help if you are not satisfied with the response.

Again if you are not satisfied, you then re reply and forward to ofcom telling them you are doing this.

Regarding your network coverage, you need Orange to first see what the fault is and ask them when they are going to fix it. Again take a snap shot of the coverage on your internet and send it to them. They then need to update there map as they are miselling.

Regarding the phone, well this is a slight grey area.

If you read T + C's closely it does say that Orange can provide you with a non like for like if the phone isnt ava, They also can provide you with an alternate phone etc. They dont have to replace the battery, but if you tell them that your batter is faulty after receiving the phone thy will prob send you one out any way.

I know this doesnt answer the pink phone thing, however if you havnt damaged the phone and the phone has just stopped working then either send it back to the manufacuture. You still have 12 month warranty and they generaly will fix it.

If you need any thing else, please ask.

However Orange can do what ever they want, There T+C's have a clause for everything and this is one of the reasons i left them and that there customer care sorry to say is now non exsitance.



at an orange shop to check coverage they use www.orange.co.uk there is no internal link for orange to use well on shop floors there isnt. if a mast was down it would not appear there. if i was checking masts i would call my internal ivr data support (consumer customers can reach them by dialing 156 from your orange phone) and they can access engineer files and such. So i am afraid that they have told you porkys on that front. Your insurance orange care will replace for a like for like model of the phone unless that particular phone has been discontinued which upon getting a replacement over the phone they will tell you. If you believed to have been missold customer services will tell you to go to the shop where u purchased it. our shop hates orange staff that mis sells a customer and if u cam into our shop we would contact store directly and speak to that member of staff. But in some stores they will just tell you too phone 150 and rectify it that end. The points above telling you how to end the contract. I would try those steps aswell.
Oh and again with the replacement. If we promised you a like for like and it did get discontinued. this wouldnt actualy been misselling because at the time you would be able to get a replacement. And with the battery replacement it actualy depends on what is wrong with the phone. Orange run a diagnostic and depending on the outcome it would say what would have to be replaced. If its the samsung blush that your sister has. Well those are out of stock but not discontinued they will get them back in.

Edited by pjheliking, 24 June 2007 - 11:20 AM.

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#8
hockeyump

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In respect of the broken phone, Section 48A of the Sale of Goods Act 1979 states

48A Introductory
(1) This section applies if
(a) the buyer deals as consumer or, in Scotland, there is a consumer contract in which the buyer is a consumer, and
(B) the goods do not conform to the contract of sale at the time of delivery.
(2) If this section applies, the buyer has the right
(a) under and in accordance with section 48B below, to require the seller to repair or replace the goods, or
(b) under and in accordance with section 48C below
(i) to require the seller to reduce the purchase price of the goods to the buyer by an appropriate amount, or
(ii) to rescind the contract with regard to the goods in question.
(3) For the purposes of subsection (1)(b) above goods which do not conform to the contract of sale at any time within the period of six months starting with the date on which the goods were delivered to the buyer must be taken not to have so conformed at that date.
(4) Subsection (3) above does not apply if
(a) it is established that the goods did so conform at that date;
(b) its application is incompatible with the nature of the goods or the nature of the lack of conformity.


Of blindingly obvious interest would be Section 3 where the goods must be good for 6 months and (2)(b)(ii) which allows you to rescind the contract. Note the choice is yours of what to do and not Orange's. You do NOT have to accept repairs or a replacement phone.

Here is Section 48C
48C Reduction of purchase price or rescission of contract
[(1) If section 48A above applies, the buyer may
(a) require the seller to reduce the purchase price of the goods in question to the buyer by an appropriate amount, or(b) rescind the contract with regard to those goods,
if the condition in subsection (2) below is satisfied.(2) The condition is that
(a) by virtue of section 48B(3) above the buyer may require neither repair nor replacement of the goods; or(b) the buyer has required the seller to repair or replace the goods, but the seller is in breach of the requirement of section 48B(2)(a) above to do so within a reasonable time and without significant inconvenience to the buyer.
(3) For the purposes of this Part, if the buyer rescinds the contract, any reimbursement to the buyer may be reduced to take account of the use he has had of the goods since they were delivered to him.]


It is obvious that by paying the contract up to now the provisions of (3) have been met.

Personally I would stop paying Orange, but that decision is up to her and may affect her Credit Rating temporarily, but as a new graduate she probably doesn't really have one. It might be worth getting a lawyer to draft a letter rescinding the contract bearing in mind the £35 per month the remainder of the contract is going to cost £420 and a lawyer's letter will probably cost a lot less and get Orange permanently off her back.

Edited by hockeyump, 28 June 2007 - 02:21 AM.

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#9
Confucious

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The phone companies do seem top ignore the SoG act...

Any news on this? Has she written to them? Had any reply?

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#10
pjheliking

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In respect of the broken phone, Section 48A of the Sale of Goods Act 1979 states

48A Introductory
(1) This section applies if
(a) the buyer deals as consumer or, in Scotland, there is a consumer contract in which the buyer is a consumer, and
(:) the goods do not conform to the contract of sale at the time of delivery.
(2) If this section applies, the buyer has the right
(a) under and in accordance with section 48B below, to require the seller to repair or replace the goods, or
(:P under and in accordance with section 48C below
(i) to require the seller to reduce the purchase price of the goods to the buyer by an appropriate amount, or
(ii) to rescind the contract with regard to the goods in question.
(3) For the purposes of subsection (1)(;) above goods which do not conform to the contract of sale at any time within the period of six months starting with the date on which the goods were delivered to the buyer must be taken not to have so conformed at that date.
(4) Subsection (3) above does not apply if
(a) it is established that the goods did so conform at that date;
(:D its application is incompatible with the nature of the goods or the nature of the lack of conformity.


Of blindingly obvious interest would be Section 3 where the goods must be good for 6 months and (2)(:D(ii) which allows you to rescind the contract. Note the choice is yours of what to do and not Orange's. You do NOT have to accept repairs or a replacement phone.

Here is Section 48C
48C Reduction of purchase price or rescission of contract
[(1) If section 48A above applies, the buyer may
(a) require the seller to reduce the purchase price of the goods in question to the buyer by an appropriate amount, or(B) rescind the contract with regard to those goods,
if the condition in subsection (2) below is satisfied.(2) The condition is that
(a) by virtue of section 48B(3) above the buyer may require neither repair nor replacement of the goods; or(B) the buyer has required the seller to repair or replace the goods, but the seller is in breach of the requirement of section 48B(2)(a) above to do so within a reasonable time and without significant inconvenience to the buyer.
(3) For the purposes of this Part, if the buyer rescinds the contract, any reimbursement to the buyer may be reduced to take account of the use he has had of the goods since they were delivered to him.]


It is obvious that by paying the contract up to now the provisions of (3) have been met.

Personally I would stop paying Orange, but that decision is up to her and may affect her Credit Rating temporarily, but as a new graduate she probably doesn't really have one. It might be worth getting a lawyer to draft a letter rescinding the contract bearing in mind the £35 per month the remainder of the contract is going to cost £420 and a lawyer's letter will probably cost a lot less and get Orange permanently off her back.


This is wat i was told (most probably the wrong thing) cause we had a customer that stated i think the above. I believe the response from retail support was. Yes we sell the phones but if the phone is broken by a manufacturer fault then it is them that you have to contact or we can do this. we will repair the phone for free even if u dont have insurance within the first six months but after that there is delivery charge of £15. Personaly i dont think orange do enough to satisfy a complaint like this.

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#11
hockeyump

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Orange have tried to use this one on me before and it is complete rubbish. When you buy any goods the contract of sale is between you and the person you buy the goods from and there is no contract between you and the manufacturer. It can be argued that if you fill in a manufacturers guarantee card that a further contract that extends a guarantee beyond the statutory minimum 6 months is formed between you and the manufacturer, but that is not the case.

Orange have a particular problem in proving their stand point in that the phone is locked to Orange networks; is branded Orange and comes out of a box with Orange all over it. They are going to have a huge amount of difficulty arguing that they are not responsible for any repairs made to the phone because it is not an Orange phone. It is still immaterial as Orange are held responsible under the Sale of Goods Act for the fact that the phone didn't make its 6 months statutory minimum.

You may be interested to know that it is a criminal act to try and avoid your statutory obligations under the Sale of Goods Act and although the 6 months is a statutory minimum that gives you additional rights of YOUR choice of whether to replace or repair the goods or to rescind or get a price reduction on the contract, section 14 (2) of the Sale of Goods Act states

(2) Where the seller sells goods in the course of a business, there is an implied term that the goods supplied under the contract are of satisfactory quality.
(2A) For the purposes of this Act, goods are of satisfactory quality if they meet the standard that a reasonable person would regard as satisfactory, taking account of any description of the goods, the price (if relevant) and all the other relevant circumstances.
(2B) For the purposes of this Act, the quality of goods includes their state and condition and the following (among others) are in appropriate cases aspects of the quality of goods
(a) fitness for all the purposes for which goods of the kind in question are commonly supplied,
(b) appearance and finish,
© freedom from minor defects,
(d) safety, and
(e) durability.


Now you have got to take the price of the goods into account here and the price of the goods would be determined by the price the phone would cost if you had no contract with Orange and the phone was unlocked to all networks and that would put the cost of the phone at £100 - £200 or a little more. A "reasonable person" (and that would be most of the users of this forum) would quite like expect a phone to last for at least the full length of the contract, which puts the expected "durability" of the goods at a minimum of 18 months - you would hardly expect to have to replace your phone at any time during the contract or I doubt if many reasonable people would be taking out any contracts with Orange (or anyone else). No need to take out the Orange insurance then as you are covered by the Sale of Goods Act for Orange to ensure the durability of the phone for the full contract period (remember the Orange branding is the part that really drives this home).

Remember the date that the contract was signed and the date that the phone actually broke down are the important bits. At this point the 7th month of the contract has been entered, but the goods must have conformed for the entire first six months and if they didn't then section 48A of the Act kicks in even though you are now in the 7th month. Orange my try and wriggle out of your right to choose what action they have to take by saying you are past the initial 6 months.

You could also argue that the lack of signal at home fails (and has always failed) the requirement the phone fulfilling the purpose for which it was bought - you hardly bought it to gaze lovingly at it without using it. Since this has been the case from day one the 6 month requirement has been broken for the entire period of the contract. Orange would have to prove that the nearest mast has been working for the entire 6 months which they can't do by their own admission at the time of sale.

By the way you have yet another gripe against Orange on the replacement phone. Section 14 (2B), (b) says the quality of the goods must conform in "appearance and finish". I certainly don't think a black phone with a pink battery conforms in the eyes of the law, so Orange fail yet again in their statutory obligations (criminal act). Some people might think this colour combination is quite funky, but if it was widely accepted you would be able to buy phones in that colour scheme, which you can't, so it is not acceptable.

I usually find a letter to the Managing Director/CEO pointing out the criminal breaches of the Sale of Goods Act usually gets a phone call from a lovely person at the Executive Office who will do almost anything you want to keep you happy. The fact that there is no signal at home means that rescinding the contract would probably be the only acceptable course of action. You could push you luck and ask for all the money you have paid Orange to be refunded as the contract in being rescinded means they shouldn't have got any money from you at all, but remember " if the buyer rescinds the contract, any reimbursement to the buyer may be reduced to take account of the use he has had of the goods since they were delivered to him". As an absolute minimum though you should get the money back for any unused rollover minutes.

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