Fishy deposit problem.

[locutus]

Keep us informed. I'd expect the fishy shop to try to negotiate now. If he posts a defense you could CPR him for the details of his out of pocket expenses, and a judge will want to see these anyway.

[ItsWar]

Court hearing in a little over two weeks time.

 

I could still use some advise though.

 

Some say that the retailer could claim an admin fee, others say he can keep the whole deposit, others say he can claim the whole purchase price. We can cross off the last point as he has not counter claimed. His defence simply consisted of sending the court every document and email exchange (I will be relying on those and have not sent anything further to the court).

 

1. Can anybody refer me to a good argument or case law that will defend his 'Time was not of the essence' defence.

 

2. Any ideas how to present my argument that even if I were found to be the one in breach of contract, nevertheless I was offered a partial refund. Which I accepted prior to its withdrawal. Therefore I should at least be awarded this amount rather than face a claim for an admin fee or loss of deposit.

 

3. Should I stay silent regarding him proving his losses? I believe so, as I suspect he will not bring evidence of his cost prices to court (and I dont want to remind him). Therefore, even if he were to win the argument, he may be unable to prove his losses without the invoices. If of course he does bring invoices with him, I suspect I (and the court) will not have been supplied with them two weeks prior to the hearing. They may just be produced on the spot at the hearing, or not at all. This would make it difficult for the court to judge the amount that should represent his costs. Does this risk the judge then simply accepting the £1000 loss of deposit?

 

4. How would a correct admin fee be calculated and proven?

 

I am getting very excited about this hearing. Whilst I have been to court a number of times (and normally had a good idea of the outcomes), this one is really interesting. Because I am also a retailer and have never taken a customer to court over their failing to honour a purchase. I have always allowed the deposit to be transfered onto a credit note. But one day a customer may sue me, so it is good to get this experience by me being the customer. Its like a game of chess but far more exciting, and the outcome is not yet obvious.

 

 

Anyway, the tank is lovely and the fish are beautiful. Getting a Mandarin next week.

Edited February 12, 2012 by ItsWar

[locutus]

If you breached the contract, he can claim his out of pocket expenses. As he didn't keep to the agreed timescale it is him that breached the contract.

[ItsWar]

I have just found this nugget.

 

The Consumer Protection from Unfair Trading Regulations 2008

 

• 2008 No. 1277
  
• PART 2
  

 

 

Misleading omissions

 

 

 

 

6.—(1) A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2)—

(a)the commercial practice omits material information,

(b)the commercial practice hides material information,

©the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or

(d)the commercial practice fails to identify its commercial intent, unless this is already apparent from the context,

and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise

 

 

 

Hi Locutus,

 

Your point is understood, but time was not of the essence, so the court allows his performance to be within a reasonable time. So he may not have breached the contract. Maybe I can use the above though. But as you say, if I am in breach, then, you say he can claim his out of pocket expenses, (how are these proven?). Others say he can keep the £1000 deposit (which may or may not be his out of pocket expenses.

[locutus]

Time may not have been of the essence, but it is what was agreed, then they couldn't deliver within this time frame.

 

 

Stick to your guns, or offer him the courts mediation services if you are willing to compromise. Any efforts to reach an amicable agreement will be looked at favorably.

[ItsWar]

Agreed. I did mark the court papers that I would be happy to mediate, but have heard nothing. Also, in my correspondence accepting the partial refund, I made it clear that I was taking apragmatic view in order that the court would be the last resort.

 

The OFT guidlines Consumer Protection From Unfair Trading is a huge but very easily readablee document. It clearly defines the 'Product' includes availability and delivery. Therefore by omitting the certainty that the tank would take six weeks, (if it was not ready inside three), AND that omission caused me to enter into the transaction, then the trader is in breach. Therefore, knowing my new shop was due to open in three weeks and I had a 6 foot by 2 foot hole in the wall seperating the shop and the office (a sure security issue) as I am a retail jewellery business, three weeks was acceptable, six weeks would have made me go elsewhere. I had to act speedily. In the end my new tank from elsewhere was installed in the three weeks.

 

So an argument is progressing quite well here. But begs the question.

 

1. Am I acting as a consumer? When buying for my business?

 

I reckon I am a consumer as I was acting as a consumer at the point of sale. I would be a business if I was buying stock or specialist display items from trade suppliers or manufactuerers whose general business model relies upon selling only to businesses. But am I a consumer? If yes, I can use other consumer legislation in unfair terms. ie It is unfair to have a term that says deposits are non refundable. But only if I am a consumer.

 

Am I a consumer when the fish tank was bought for my shop?

 

Oh ! Should I tell the court (and therefore the defendant)two weeks before the hearing, upon which points of law I intend to use?

Edited February 12, 2012 by ItsWar

[raydetinu]

Consumer law does not apply to commercial purchases made on behalf of a business or business to business tranactions.

[ItsWar]

I think there is an ambiguity here.

 

I can buy anything from a shop (radio, book, stationery, clothes, white goods etc) and take it home, knowing I am covered by consumer law. Say I buy a microwave oven, of course its covered by consumer law. Say I buy two microwave ovens and take one home for my wife and the other goes into my staff room at work.

 

Are you saying that one is covered by consumer law and the other is not?

 

Then, lets say I am a white goods retailer and not a jeweller. I buy microwave ovens from a supplier, these are not covered by consumer law because I am not the consumer. They become subject to consumer law when the consumer buys them.

 

Whats the difference with the fish tank? The only thing that has changed is that I, as a consumer decided to take it to work rather than to home. Does that one location lose me my statutory rights as a consumer?

[raydetinu]

Its a mute point when you put it like that.

on the matter of the microwave example; if you purchased it as an individual but used it commercially, in a restuarant or office then technically you are not covered but only if they know about it?

It depends how you paid for the tank, personally or business cheque/card? are you claiming it as a business expense?

Speak to trading standards or consumer direct they may be able to help.

[ItsWar]

Yep. I get the protection I need if I am a consumer, but face an uphill battle as a business user. The assumption I need to get across is that the consumer needs more protection , than a business whos expertise is in dealing with the products he buys and sells for his business. But where I buy a product not generally associated with my business, from a retail shop and not a trade supplier, and the product is one that is normally sold to the public. I assume I am actually in need of that protection as I am wearing a consumers hat when I buy the product and its only the location of that product which makes it purchased for my business. I should have taken the tank home first and later decided to take it to work.

 

I still have no defence other than an argument. I need some specific law.

 

The main concern is that when time is not of the essence, then I should have waited a reasonable amount of time for the retailer to deliver. I decided (maybe too hastily to cancel the order because the delay would be at least 2 weeks and probably 3 weeks. I reckon if I am quoted 3 weeks for delivery, a reasonable delay would be 3 or 4 more days, not 21.

[ItsWar]

Can Contract Law help me? Contracts can be rescinded where one party fails to make adequate disclosure or misrepresentations during negotiations. Concealing what he privately knew and induced me into the contract with a reckless promise of delivery date.Knowing the factory was to close and the quoted date had a high probability of being missed by 3 weeks.

 

Any ideas of other (non consumer based) laws?

 

VERY URGENT. Should I tell the court and the defendant the arguments I intend to rely upon before the hearing?

Edited February 15, 2012 by ItsWar

[raydetinu]

A contract is a contract!

if the delivery time was part of the contract conditions ( condotion of the purchase and accepted by the seller as such ) then yes it would be breached if delivery was not made by the due date, then you would be entitied to compensation.

So if you were informed of the dealy ( not read the entire thread ) and this was not acceptable, you would be able to cancel and get a refund IMO.

 

It is normal to lodge an outline argument before the hearing, stating all relevant points you are intendind to rely on when making your case, including any laws or codes.

[ItsWar]

I am really bothered about providing the court with my argument, because I will also have to provide a copy to the defendant. Is it fair that he should get to hear my argument and plan a defence to it? He has not supplied me with his arguments. The hearing is in 4 days, so should I still send the argument (actually I would just pop them into the court in the morning, and a copy to the defendant). Will I be better off doing this, or staying silent? Do I get a benefit, as the defendant is clearly staying silent.

[raydetinu]

Yep ok to file argument on the morning or even just before hearing, done that before, however they can ask for time, as you can, to respond.

will depend in judge.

[ItsWar]

OK. So the hearing is 11.30. Do I file at 9am and still give a copy to the defendant. Or do I file tomorrow and not give the defendant anything? Or is it better to just give them both tomorrow?

 

I am beginning to get a good argument together and if I lose, the question of mitigating the damages could be useful. The defendant has done nothing to reduce the costs. Even by paying the full trade price for the tank and not insisting at least that the manufacturer still makes and delivers it. I cannot understand why the manufacturer would still charge him for the whole tank, yet not make it. Goodness, it could have been sold in 10 days on ebay for the trade price. Then the other equipment, pumps and filters he says he has suffered the cost of buying. Assuming they could not be sold to another customer, he has agreed they could have been returned to the supplier less a handling fee of 10%. So why did he not return them? Of course, he has produced the invoice from the tank manufacturer for the full trade price of the unmade tank. Trouble is, its just a word processed statement on a letterhead. Definately not a vat invoice and no vat number. Sounds fishy to me. I bet he never had to pay for the tank in the end.But he has a duty to mitigate, I would expect two or three letters to his supplier and their replies, to show he at least tried to get the fee waived. But if the fee is a genuine cost to him, then where is the tank? I was told they had only cut the glass for it.

 

He might also try to get the profit on the fish that he didnt have to supply and the installation costs, so where is the evidence of the costs and profit margins to prove the figure. He needs to get up to £1000, and hasnt come up with any documentation to support it, apart from the purported invoice for the tank.

[raydetinu]

Suggest you deposit to both as soon as you get there.

He will have to back any out of pocket costs and as you say he has a duty to mitigate any losses, without going to too much trouble, within reason.

selling on ebay is a step too far methinks.

Have you checked with supplier of the tank what their terms are regarding cancelled orders if it has not yet been made, would of thought they could not charge full price? only materials if they were special order etc.

Good luck.

[ItsWar]

An interesting development today. I receive a letter which has also been copied to the court, written to me by a gentleman who was in the habit of visiting the aquarium shop. He asks the owner of the shop if they had supplied the fish tank in my shop. The owner says they had taken the order but the contract had broken down and I was sueing him for the return of my deposit. The gentlemen then explains in his letter that he felt obliged to tell the aquarium shop owner his experience when his fiancee bought a wedding ring from my shop. He explains how I took the order for the wedding ring and promised a delivery date, which I failed to meet. After a number of promises and new delivery dates, he explains how he phones my shop as he was" now seeing red", to let me know of his upset. The wedding ring was eventually ready 4 weeks late. He explains how angry he was with my staff as they excused the delay as being out of their control and the busy time of year, being Christmas and how bad the whole experience was in dealing with me. He asks how I could give such poor service to my customers and then sue another shop keeper who does the same to me. He ends with saying he would be happy to attend court as a witness on behalf of the aquarium shop keeper to show that my business dealings were dubious and how professional the aquarium shop keeper had been in dealing with him over the years.

 

It seems the letter was a put up job. Clearly the gentleman had a good relationship with the aquarium shop keeper and they have planned to write to the court to make me seem to be in a bad light.

 

The thing that is interesting though, is this. The customer has never been a customer of mine and he never bought the wedding ring from me. After a couple hours trying to find the transaction to no avail, it occurred to me that he had bought the ring from another shop and was confused. So I asked a competitor jewellery shop in the same town if they had sold a wedding ring on the date specified. Lo and behold, they had sold a wedding ring to his fiancee at the address and date quoted. They remember the trouble they had and the delays in production and how angry the customer was. They gave him a discount because of the delays.

 

So, what do we have here? A libelous letter written to the court? A slanderous discussion with the shopkeeper? A judge who will now think I conduct my business like the aquarium shop keeper conducts his? Or do we have a simple mistake, that he couldnt remember who he bought the ring from, and just thought it was from me? He may well have visited my shop and being a fish

enthusiast , he would have noticed the aquarium now full of fish.(his letter says he has visited the aquarium shop every week for about ten years and knows the owner to be fair and honest and expert etc etc). He may have looked at my wedding rings too, when he noticed my aquarium. But he bought one from another shop. Is this just a forgetful man making a silly mistake and he genuinely may simply have forgotten that he didnt buy the wedding ring from me. Or, do we have something more than a mistake? It seems to me, that as a friend of the aquarium shop keeper,they would have chewed this over a few times and they have conspired to write the letter to the court to support his defence. The wording in the letter is very similar to the wording in an email the aquarium owner wrote to me. It seems that maybe the aquarium shop owner and the wedding ring buyer drafted the letter together. But I doubt the aquarium shop owner realises his friend has made a mistake.

 

So, they do not yet know that they have accused me by mistake and the letter should never have been sent to the court as part of his defence.

 

The thing is, what will the judge think of it? It is probably irrelevant to my claim and will probably only be read in his notes and dismissed, but the judge will not know that the seller of the wedding ring was not me. And once he has read it, it will be hard for him to disregard it from his mind. The defendant might even bring it up.

 

What should I do?

Edited February 22, 2012 by ItsWar

[raydetinu]

simple realy, now you know about it and as it has been submitted to the court, you can respnd and refute the claims, and asking them to prove it was your shop the ring was purchased as it it is just an allegation ( copy to defendant ). If you have evidence to prove otherwise include that.

Not withstanding the above I think it has no bearing on your case at all. which would be heard on its stand alone merits.

Unless this letter is in support of his argument then I doubt it wiil even see the light of day as not relevant.

[ItsWar]

Well it was a very interesting two hour hearing. Better than any training seminar. I presented my argument regarding contract law allowing me to rescind if the delay was unreasonable, if I was misled, if he kept knowledge secret, and various other points showing bad faith. How if I as the one judged to be in breach of contract, then nevertheless he mad an offer a partial refund and withdrew it after I had accepted it. My argument was confident and largely un-interupted, I was on song and gave a good accounting of myself.

 

The defendant had his go and stuck to the travelog of what happend. He had no case law to support him and agreed he had known of the annual shutdown but failed to tell me.

 

There were a few questions and answers. And another opportunity to speak. I mentioned his lack to mitigate the costs, how he was trying to explain to the court that he had been charged full trade price £695 for a tank that was never made, how he tried to explain that a letter head with invoice details proved he had been charged £695. I argued it lacked vat number, company reg number and head office address and could never be construed as an actual invoice but a statement. that he failed to prove he had actually spent anything towards fulfilling my cancelled order.

 

Then came the summing up by the judge. He recounted the whole matter and got everything spot on, so he did understand all the points argued. Then one by one he referred to each of my claims and discounted every one. Time was not of the essence, he hadnt acted in bad faith, he hadnt intentionally meant to mislead me, he had tried to get the tank delivered as soon as he could after the delay, I had no protection from consumer law as I as a business. And on those points I could not claim my £1000 deposit back and I as the one in breach of contract.

 

Then he came to the partial refund correspondence. Whilst the defendant made me an offer of a partial refund £610, my reply saying I would accept the offer plus a £390 credit note constituted me rejecting the first offer and therefore the first offer would no longer exist. That his rejection of my suggested solution meant that both his first offer and my counter proposal had been rejected and neither the offers existed. But, (and then the homework started to work) The defendants reply rejecting my counter proposal, also reiterated his first offer, effectively making a third and new offer, that £610 was all he would pay.

 

The judge accepted that even though I took three weeks to accept the offer, the offer was unconditional and his offering and my acceptance constituted a properly negotiated settlement. The judge said the defendant had shot himself in the foot and had to honour the offer of a partial refund. Judgement in my favour £610 plus £150 costs.

 

So, I had paid a £1000 deposit and was able to reclaim £200 vat. My exposure to loss was £800. So in the end, my cancelling the order cost me £190. But for the careless offer to make a partial refund, the defendant would have won the day.

 

The moral of this story. You must make time of the essence and when buying for your business you must make the transaction appear as a consumer purchase. You cannot expect to cancel an order and get your deposit back.

 

The real shame is that if the defendant had really spent £695 plus more in buying other materials and this was a true loss to him, he has now another £760 loss when he pays the judgment. This means he may well have lost a total £1500 because I cancelled the contract. And all this despite the law being largely on his side.

 

While I tried to get my full deposit back, because he had messed up my order, he has suffered quite a loss. I now feel a bit of a bully in doing to him something I would hate for my customers to do to me. The real lesson is to ensure we treat our customers who choose to buy from us, very well. We must fullfill our obligations speedily and in good faith. Had the defendant managed my order with more care, I would have been a delighted customer. This experience has been a renewed lesson, underlining the need to give exceptional customer service. I am never going to dissapoint my customers ever again.

[raydetinu]

Glad to se you got something back.

However was it worth the hassle, you could of just accepted his initial offer.

If you had been up front and told us this was a business transaction the advice given would of been better directed.

The moral is dont confuse consumer and business transactions.

You placed the order for your business and no doubt put the deposit through your accounts! must of done as you claimd the vat back!

[ItsWar]

Was it worth the hassle? Well, Yes. I could have accepted his initial offer, but I considered offering a counter proposal (bad idea) (I had no idea that a counter proposal had the effect of rejecting the first offer, I thought it would place two offers on the table). The chance being taken that he might just agree to my counter proposal. He didnt agree, but re offered the original partial refund (his big mistake). The problem was simply that he withdrew the offer after I accepted it. Thats why I had to go to court.

 

I did mention the difficulties I faced, being a shop keeper in post 8 and the difficulty that simple profession was posing. A business owner is a second rate citizen in the eyes of the law, where consumer protection laws give protection to every one else who has an 'ordinary' job or no job.

 

In this court case, it as clear that: 1. No refunds are entitlled for a cancelled order if you just change your mind. (we all knew that anyway). But you need a real solid breach of contract by the seller to get recompense (not just a clutching at straws argument that I had). 2. A retailer can promise you the earth and fail to deliver, almost at will ( if you use a business credit card to pay, it gives him carte blanche to abuse you, because he knows the law does not protect you anywhere near as much as a normal customer).

 

The above is true, unless you ensure time is always of the essence for business and personal purchases. Then the dynamic switches to your powerful advantage instantly. Trouble is, we all know the basic consumer and soga type laws. But nobody actually orders an item from a shop and questions their delivery date. We all accept the date offered is the truth and not just a tempting date offered so the retailer makes the sale. Nobody really knows that Time of the Essence MUST be made part of your ordering process......nobody tells you that.

 

I shant order a pizza without making time of the essence, ever again.

Edited February 25, 2012 by ItsWar

[raydetinu]

We all live and learn.

Se Le vie!