jecasc - 9:17 am on Jan 18, 2013 (gmt 0)

I really do not think that is legal. I think the website with the price displayed is the "offer". When the customer puts it in the shopping cart and completes the checkout process with a payment that is the "acceptance".

Yes this is legal - at least where I do business. The law may be different in other countries. My website is simply a catalogue. An invitation to make an offer. Which I can accept or not. However you are right in so far as in some countries accepting a payment would already indicate an acceptence of the offer. That's why credit cards usually are not immediately charged but the payment is only authorized. And then charged after the shipment.

It's the same in a B&M store. There are items on display with price tags - but that does not mean that this is already the offer in legal terms. If you go into the shop, pick up an item and go to the cashier you have not already closed a sales contract but are only making an offer: "I am willing to purchase the product for the price on the label" (You do not have to say that, this is implied by you putting the product in front of the cashier). The shop can still refuse to sell. Or he can say "I accept your offer". Usually not in words but as an "Implied-in-fact contract". Which means he accepts your offer by typing in the price into the cashier and accepting your money.

That is the reason a supermarket for example is not obliged to sell to the price on the label when there is an error on the price tag. The contract has not yet been closed.


*** Back to the question of the original poster ***

If you have made no provisions in your TOS about when the contract is closed a court would look at the total circumstances and what is customary.

What happens if there is a binding contract and there is a delay or a party refuses to fullfill the contract all depends on local law and the individual circumstances.

My advice would be to contact a lawyer and provide for the future by letting him write proper TOS. The reason you should let a lawyer do this is: If you simply copy some TOS from the web, they might be in conflict to your local law and therfore be null and void. Also if the lawyer screws up your TOS, he is liable. You could then also ask him what you should do in cases like that. Because if you stay in business this will not have been the last time you encounter such a situation.

Relying on your "gut feeling" about what is wrong or right is not a good strategy. In the end the question is: What is the law?