Know Your Rights With Alvin Finklestein: Terms-of-service versus spoken promise

[Alvin Finklestein]

One of my clients, Joseph, had an interesting legal situation come up with Dell.

Joseph ordered a system which came with a $200 "promotional" e-gift card. This gift card had an expiration date (legal because it's promotional, and not directly purchased), and could not be used for purchases of regular gift cards. These terms were stated in the terms-of-service agreement when the gift card was e-mailed to Joseph.

Joseph did not read these terms of service. Instead, he called Dell and asked if he could use the e-gift card to purchase regular gift cards.

Surprisingly, the representative said yes, and put the order through. Joseph received a confirmation e-mail, stating that his regular $200 gift card would be shipped.

Two weeks passed, and Joseph did not receive the card as expected. He contacted Dell, who told him that the order was canceled two days after it was placed. Joseph stated that he did not cancel the order. Dell informed them that they canceled the order, because it was against their terms of service. Joseph asked why they did not inform him of the cancellation. Dell insisted that they e-mailed the cancellation details at the time.

Joseph demanded they honor the mistake on a one-time basis, as their own employee authorized and in fact placed the transaction. Dell refused, stating that it was Joseph's responsibility to read the terms of service, and that they have a legal right to cancel orders placed in error, even if the error is on their part.

There is no question that refusing to honor this transaction is poor customer service on Dell's part, but that is not the discussion at hand.

For the record, Dell admits that their own employee made a mistake, placed the order, and told Joseph that it was allowed to buy regular gift cards with e-gift cards. That part is not in dispute.

Are Dell's actions legal? If Joseph sued them, what would be the proper ruling?

[Hockey Guy]

Your client is full of shit or maybe stupid but I lean towards FOS. He knew the TOS & tried to circumvent them & thought he got lucky when a stupid employee authorized it.

Seriously, if you could just buy a regular e-gift card with the promotional one why wouldn't they just send you one of those in the first place. Get real Alvin.

[Alvin Finklestein]

Your client is full of shit or maybe stupid but I lean towards FOS. He knew the TOS & tried to circumvent them & thought he got lucky when a stupid employee authorized it.

Seriously, if you could just buy a regular e-gift card with the promotional one why wouldn't they just send you one of those in the first place. Get real Alvin.

It sounds like you are selecting the choice: "Yes, but only if judge is convinced Joe really didn't read the terms of service" in the poll above.

[Hockey Guy]

Your client is full of shit or maybe stupid but I lean towards FOS. He knew the TOS & tried to circumvent them & thought he got lucky when a stupid employee authorized it.

Seriously, if you could just buy a regular e-gift card with the promotional one why wouldn't they just send you one of those in the first place. Get real Alvin.

It sounds like you are selecting the choice: "Yes, but only if judge is convinced Joe really didn't read the terms of service" in the poll above.

You might be stupid too or maybe just FOS. I'm leaning to the FOS on you too.

I'm obviously saying your client was trying to pull a fast one & Dell doesn't owe him anything. There's no way you could have possibly gotten a "yes" vote from me out of what I posted so fuck off. Or maybe you really are a lawyer & stuff means whatever you need it to in order to help your client.

[4Dragons]

1. lol, Dell.
2. Guy engaged in shenanigans, you have to except the consequences of shenanigans backfiring.
3. Dell did an amazing job catching that error, being how huge a company it is.
4. omg wtf Dell, really?
5. Dell maybe should have manned up and let this slide, but imho, it smells like shenanigans and Dell saw that and said gtfo.

[simpdog]

There should be one last option.

E. Yes Dell should honor it but Joseph is either an idiot or sheister

[Alvin Finklestein]

It sounds like you are selecting the choice: "Yes, but only if judge is convinced Joe really didn't read the terms of service" in the poll above.

You might be stupid too or maybe just FOS. I'm leaning to the FOS on you too.

I'm obviously saying your client was trying to pull a fast one & Dell doesn't owe him anything. There's no way you could have possibly gotten a "yes" vote from me out of what I posted so fuck off. Or maybe you really are a lawyer & stuff means whatever you need it to in order to help your client.

This is a legal question, not a moral question.

You may not like Joseph in this story and think that he's trying to get over on Dell.

However, I am asking if the law would be on Joseph's side here.

It is actually a very interesting situation, and one that comes up often in one form or another: If an employee of a company promises you something, and you can prove he promised it, do they have to deliver if they can produce documentation stating that you were promised something against their terms?

[simpdog]

WWDD if he ran Dell.

a. let Joseph have his $200
b. fire his minimum wage employee. Or at the very least ruin his Christmas by giving him the next 2 weeks off.

[Pooh]

SOL. Dell doesn't give a shit either, they are no longer a public company.

[GrenadaRoger]

I think it depends upon the state laws

in California, i think the documents control (the so called 4-corners of the paper doctrine)--at least that is what i recall from the Dodgers McCourt divorce...verbal statements and puffery are common to any sales transaction--they are difficult to prove being made or what those statement were intended to mean--so California simplifies this all by giving primary weight to the document. Thus, Dells arguement prevails that the offer can not be used for cash gift cards--that was disclosed in the writings given to your client.

but here there is an interesting twist... Dell's employee acted as if the card could be exchanged for a gift card and your client relied by their employee's representation...that reliance resulted in the offer expiring without being used as intended by Dell...thus you client was damaged to the extent that he missed out on the offer. I think any reasonable person that would believe that the Dell employee had authority to make that representation (that is, he had apparent authority). Also, the Dell employee's representation is provable by being in writing.

Thus, judgement is that the offer is to be restored as originally intended by Dell with a similar expiration period as the original. This puts the parties back to the same position as they were before the misunderstanding and corrects the damage caused by the misrepresentation.

I think you client would prevail in court if seeking to get the offer restored, but fail in an attempt to force Dell to honor the cash gift card.

my two cents