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Visa card debited without my knowledge&consent- contract advice please (long)

(15 Posts)
Katastrofee Mon 03-Oct-11 20:47:49

I booked a holiday apartment X for a week on a villa holidays type of website. I played with Visa Debit. Before booking I emailed and called them asking for availability, they confirmed and said to book online.
I haven't received any acknowledgement or conformation, but an email a day later stating that "the apartment you want to book is not available". They also sent links to other apartments on their site, all of them at different and higher prices.

I asked availability of three apt by email.

I called them and asked about the failed booking - they replied it can't be cancelled because there is no contract, so nothing to cancel. I said not to keep and use my card details anymore. They reassured me that if I decide to book something else I would have to enter my card details again anyway.

They offered me an option (without obligation) for the apartment Y. I was not at home so it expired. The next day they asked for another option for the same apartment again.
I emailed them that I would take apartment Y or any other I mentioned.

They emailed me with a counter offer of apartments X because another client was thinking to cancel. I did not reply.
Later they emailed me saying the other client decided not to cancel but they propose apartments Y, Z and W. The apartment Y had an option for me until 6 pm.
They called me, talked about the three apartments and invited me to go on their website and book. I said I would go online. But I didn't say I will book.
They called me again saying that the option would expire so I better book fast. I said that I was waiting for my husband to go online together and that we would use his credit card if we book.

Later we went online and checked all the details. We discovered that the apartment Y required a 500£ cash security deposit on arrival which is 200£ higher than the deposit for the apartment X I booked at first place. The price for the apartment Y itself was 300£ higher than the apartment X.
We decided to book the apartment W. We tried to book but the website gave error messages that the apartment was not available. We were pissed off, called the apartment W directly and booked with them.

The next day the website company emailed me saying "I can see that you still have not booked, please do this ASAP..."

I was not at home.
Then in the afternoon they emailed that they have debited my card for the apartment Y based on the authorisation for apartment X and issued a rental agreement in the name of my husband (!) with our address on it which requires us to pay the balance of £300. They never provided any service for the money - didn't send us any voucher so we could not go on this holiday. But we couldn't go anyway because of the high cash deposit. We wouldn't have enough cash to pay for travel, food, and the deposit. That's why we needed the other credit card.

I requested a full refund because I did not book the apartment Y and because they used my card without authorisation.

They refused to refund because they already played the supplier of the apartment Y. Their contract terms allow for cancellation without penalties within 3 days of issuing a rental agreement; this clause is not conditional on the timing or whether they incured any costs. They pretend that I confirmed on the phone. This is totally untrue; we talked about the option and about going online. On the phone I never agreed or confirmed anything and never gave the consent to debit that card for apartment Y.

I didn't know they could possibly lawfully do that.

I called my bank and apparently they could because I gave them the details. But that was for apartment X. Surely you can't force people into contracts without their knowledge and against their will. And not to provide a service for the money after all!

For me their last offer to me was for the three apartments and they left me with the invitation to book online. This meant I had the freedom to choose and even to walk away. When they debited my card, they already knew I didn't want them to use my card and that I walked away from the deal.

Could you advise what the legal argument to get my money back is?

smelli Mon 03-Oct-11 22:09:04

Telll Visa that this you never authorised money to be paid and you want to use their dispute procedure (if there is one). If not start a Money Claim online (Small Claims Court) to get money back. Report to ABTA or AITO if members. Report to Trading Standards too.

smelli Mon 03-Oct-11 22:09:49

Also Name and Shame for the rest of us! They may do this all the time. (Google them)

Katastrofee Tue 04-Oct-11 08:13:20

The complication is these people are abroad - Provacances.com

I called my bank’s card fraud service and they will try to get a refund, but they don't promise as it depends on what can be proven on paper.

I am worried that they will take my email that "I will take it” as a binding confirmation. But I didn't put any dates, prices or card details in this email. It was meant as a request for availability. I written it in the context to keep the apartment open for me to go online and book it, if I choose.

In my lifetime experience, a purchase happens when money change hands. I didn't give Provacances money in the email. When I try a dress at M&S, they don't run after me forcing to pay because I said I liked it.

Could anyone help me to demonstrate why my email and phone calls were not binding contracts, iyswim? Or why they must refund?

Electronis Commerce Regulation?
Any contract lawyers?

CogitoErgoSometimes Tue 04-Oct-11 10:09:20

Have you considered talking to the CAB? They're often a good first port of call when you have problems with a company. The international element complicates it slightly but they may have experience with similar cases.

Katastrofee Tue 04-Oct-11 10:40:51

I talked to a similar organisation called ECC-Net, it's sponsored by the EU to help with cross-boarder consumer disputes.
However ECC shocked me as well saying that since I gave the company a payment authorisation at first place, and continued to talk to them, I didn't necessarily have the freedom to change my mind.

I totally don't buy this. M&S has my card details on records and saved items in the online shoping bag, but they don't debit my card unless I go through with the payment! If I try a dress 10 times, does it bind me to buy it?
ECC gave me a form where I need to articulate my dispute. But given their first reaction, it seem I first need to convince them. I want to attract their attention to my strongest points, maybe there is some tedious detail that can actually be crucial?

CogitoErgoSometimes Tue 04-Oct-11 11:18:56

In the hotel business, if you book a room with a card they can subsequently debit that card if you cancel or if you leave your room without paying. You don't necessarily sign off on the transaction, your booking means you agree. Maybe something similar is happening here?

Katastrofee Tue 04-Oct-11 12:41:42

I booked the room X in the hotel X. They could't supply this room and never confirmed a binding contract for room X.

We talked about booking room Y in the hotel Y for a much higher price and with different hidden terms - I needed to pay a lot more. I never confirmed the booking and never gave new card details or a new payment. I decided not to book when I looked into hiddent terms and conditions. Their offer expired on the evening.

They debited my card because they kept a copy of booking X after their offer (option) on the room Y had expired and after they realised I didn't book.

Actually by debiting my card based on the authorisation for room X, they accepted the obligation to provide it, but they didn't. So I can seek compensation?

CogitoErgoSometimes Tue 04-Oct-11 13:54:44

I'm sure you can seek it. Whether you get anything is debatable. How come you used a debit card rather than a credit card?

Katastrofee Tue 04-Oct-11 14:50:17

Could you please explain a bit why is it debatable? What is the legal basis for them to debit my card?

CogitoErgoSometimes Tue 04-Oct-11 15:42:06

You said originally that when you called your bank they said it was OK for the holiday company to take the payment. And you've already tried to get your money back without success. So you can seek compensation but it doesn't look very good at the moment, does it?

I'm not a lawyer, just trying to put up some ideas. Maybe you'll have to sue?

Katastrofee Tue 04-Oct-11 15:55:33

I am just at the stage of submitting the complaint to the bank and ECC-net, so nothing is decided yet. I am just gathering advice to put my case forward more effectively. So all ideas areappreciated indeed. Thank you.
Any contract lawyers?

Erica1001 Wed 05-Oct-11 09:55:25

If you can give me details I may be able to help need dates and as much detail as possible.

Katastrofee Wed 05-Oct-11 17:07:14

Erica, this is a copy of the OP abive with a timeline.

Day 1:
I booked a holiday apartment X for a week starting on Day 6 from this point, on a villa holidays type of website. I played with Visa Debit. Before booking I emailed and called them asking for availability (day -1) , they confirmed and said to book online. The information in their online booking process says that they confirm within 2 working days.

Day 2:
I haven't received any acknowledgement or conformation, but an email a day later stating that "the apartment you want to book is not available". They also sent links to other apartments on their site, all of them at different and higher prices.

I asked availability of three apts by email -, let's call them Y, Z, W and U.

Day 3
I called them and asked about the failed booking - they replied it can't be cancelled because there is no contract, so nothing to cancel. I said not to keep and use my card details anymore. They reassured me that if I decide to book something else I would have to enter my card details again anyway.

They offered me an option (without obligation) for the apartment Y. I was not at home so it expired.
Tho working days from the original booking lapsed.

I emailed them late at night that I would take apartment Y or W or any other I mentioned.

Day 4
The next day they asked for another option for the same apartment Y again.

They emailed me with a counter offer of apartments X because another client was thinking to cancel. I did not reply.
Later they emailed me saying the other client decided not to cancel but they propose apartments Y. The apartment Y had an option for me until 6 pm.

They called me, talked about the three apartments including W and Z. and invited me to go on their website and book. I said I would go online. But I didn't say I will book.
They called me again saying that the option would expire so I better book fast. I said that I was waiting for my husband to go online together and that we would use his credit card if we book.

Later we went online and checked all the details. We discovered that the apartment Y required a 500£ cash security deposit on arrival which is 200£ higher than the deposit for the apartment X I booked at first place. The price for the apartment Y itself was 300£ higher than the apartment X.
We decided to book the apartment W. We tried to book but the website gave error messages that the apartment was not available. We were pissed off, called the apartment W directly and booked with them.

Day 5
The next day the website company emailed me saying "I can see that you still have not booked, please do this ASAP..."

I was not at home.
Then in the afternoon they emailed that they have debited my card for the apartment Y based on the authorisation for apartment X and issued a rental agreement in the name of my husband (!) with our address on it which requires us to pay the balance of £300. They never provided any service for the money - didn't send us any voucher so we could not go on this holiday. But we couldn't go anyway because of the high cash deposit. We wouldn't have enough cash to pay for travel, food, and the deposit. That's why we needed the other credit card.

Day 6 (Saturday)
I requested a full refund because I did not book the apartment Y and because they used my card without authorisation.

Day 8
They refused to refund because they already played the supplier of the apartment Y. Their contract terms allow for cancellation without penalties within 3 days of issuing a rental agreement; this clause is not conditional on the timing or whether they incured any costs. They pretend that I confirmed on the phone. This is totally untrue; we talked about the option and about going online. On the phone I never agreed or confirmed anything and never gave the consent to debit that card for apartment Y.

I didn't know they could possibly lawfully do that.

I called my bank and apparently they could because I gave them the details. But that was for apartment X. Surely you can't force people into contracts without their knowledge and against their will. And not to provide a service for the money after all!

For me their last offer to me was for the three apartments and they left me with the invitation to book online. This meant I had the freedom to choose and even to walk away. When they debited my card, they already knew I didn't want them to use my card and that I walked away from the deal.

Could you advise what the legal argument to get my money back is?

RockChick1984 Sat 08-Oct-11 20:37:46

I'm not a lawyer, however I would assume they have taken the payment due to your email on day 3 saying you would take apartment Y has been taken as a request to book. I work in a bank and if you came in to report this as a fraud this is the advice I would give you, however I would then pass you onto our dedicated fraud team as the branch staff are not experts in this, could you ask your bank to do this for you?

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