Amazon.co.uk pricing error – is it required to fulfil orders?

An OUT-LAW user who managed to place an order for six of the iPAQs received acknowledgement from the company just after midday; five or ten minutes later, Amazon.co.uk took its entire site off-line. The site was back within an hour, but the page selling the PDAs is gone.

Those who placed orders want to know whether Amazon.co.uk intends to fulfil the orders - and if not, whether it has entered into a contract which leaves it no choice in law.

On first impressions, it would appear that Amazon.co.uk can safely refuse to fulfil the iPAQ orders, an unknown number of which have today been placed. It's conditions of sale state:

"No contract will subsist between you and Amazon.co.uk* for the sale by it to you of any product unless and until Amazon.co.uk accepts your order by e-mail confirming that it has dispatched your product. That acceptance will be deemed complete and will be deemed for all purposes to have been effectively communicated to you at the time Amazon.co.uk sends the e-mail to you (whether or not you receive that e-mail)."

Such statements are sensible: they protect an e-tailer, allowing it to send automated acknowledgements at the time of an order without entering into a contract. In the event of pricing errors, the e-tailer can legally refuse to fulfil the order. But this only works if the terms and conditions are properly incorporated in the contract with the customer.

Amazon.co.uk does send an immediate acknowledgement to those who place orders. This is followed by a second e-mail, headed: "Your Amazon.co.uk order has been dispatched," and details of the order are provided. The iPAQ customers have not received dispatch e-mails, so, following the wording of the terms and conditions, there is not yet a contract.

Amazon.co.uk's terms and conditions are provided only on a page which can be accessed from a link on all main pages of the site marked "Conditions of Web site use, copyright and disclaimer". But accounts can be opened and orders placed without users being forced to visit this link - and this is not consistent with what many e-commerce lawyers recommend to e-tailers.

The last step of the ordering process on Amazon.co.uk is a page entitled, "Please review and submit your order". Beneath this is a sentence that reads: By placing your order, you agree to Amazon.co.uk's privacy policy and conditions of use." The "conditions of use" links opens a pop-up window showing the terms and conditions of use.

This is followed by a button: "Place your order" - which confirms the order, and beneath that button is an order summary and the delivery details.

The flaw in this is that users are not forced to visit the conditions of use. The user's eye is likely to see the "Place your order" button first - and the user may click this without reading the conditions of use.

Users could argue that they missed the conditions of use - and therefore did not agree to them.

Further doubt exists in the text of the initial acknowledgement e-mail which has already been received by those who ordered the PDA this morning. A paragraph begins: "To cancel this contract, please..." The reference implies that a contract has already been entered into.

A call to Amazon.co.uk requesting comment on whether or not it intends to fulfil orders has not been returned at the time of writing.