In the current landscape of e-commerce, automated processes may result in product pricing errors. There have been several high-profile instances affecting major companies such as Amazon, MediaMarkt, Alcampo, Dell and El Corte Inglés.
Such errors can give rise to claims and legal disputes between consumers and traders. One of the most recent matters in this area concerns the acquisition of products which, due to an error, were offered at a price of zero euros.
The legal issue
Judicial precedents to date address situations in which products were offered at prices significantly lower than their actual value (for example, in the well-known DELL case, laptops valued at €999 were offered for €29). In distance selling, where there is a definite price, the contract of sale is formed upon the consumer’s acceptance (Articles 1450 and 1262 of the Spanish Civil Code, and Article 23.1 of Law 34/2002 of 11 July, on Information Society Services and Electronic Commerce).
Factors Considered by the Courts in Price Error Claims
When assessing such cases, the courts take into account factors including:
(i) The magnitude of the error (if the error is not obvious, it will be difficult to establish that it was a mistake rather than a discount).
(ii) The promptness with which the error was rectified.
(iii) Whether the consumer acted in good faith (for example, placing a large number of orders may indicate bad faith).
(iv) The existence of any loss suffered by the consumer.
Judgments rejecting consumer claims have been based either on the consumer’s bad faith or on the existence of a defect in the trader’s consent.
Novelty of the present case
In the matter reviewed at our client’s request, the company rectified the online shop’s pricing error in less than one hour, notified the customer, and refunded the delivery charges. The company acted with commendable promptness in correcting the error and avoided any detriment to the consumer by promptly refunding the delivery costs.
What sets this case apart from previous judicial precedents is that the products were offered for and purchased at a price of zero euros. This introduces a novel point into the legal debate, as the absence of a definite price would render the contract void.
In this respect, the Spanish Supreme Court has held that “[t]he existence and validity of the contract is not precluded by the fact that the agreed price was lower than the real price, provided it was not derisory or merely nominal” (Supreme Court judgment of 31 December 1999, still cited today by numerous provincial courts). If a derisory or nominal price renders a contract of sale void, then fixing a price of nil should lead to the same conclusion.
Conclusion
The case law on pricing errors in electronic contracting continues to develop. The lack of uniformity in judicial decisions adds complexity to these disputes, but cases involving nil-price offers provide fresh perspectives which may influence future legal principles.