Rights regarding deposit

SuzanneWW

I need a bit of advice please.

RE: Package holiday with coach tour operator (who are not a member of ABTA or AITA etc)

My husband booked us a holiday in Europe for the New Year in the middle of October time. He paid, over the phone (with a credit card) the £70 deposit. He was not informed over the phone of any terms and conditions and we were only sent a paper form of the conditions after paying the deposit.

Due to personal reasons, we decided to cancel the holiday and we did so in writing literally two weeks after booking it – giving them plenty of notice. Although in the terms and conditions it says that they can retain all of the deposit if we cancel.

They suggested that we swap to another holiday but we didn’t want to do that, as there wasn’t anything else we were interested in.

I have now sent around 3 letters to the company requesting that they send us the deposit back, or phone us if there is a problem. We have not heard from them.

Who is in the right here? Have we lost our deposit for good?

Funnily enough we have further received an invoice from them for the apparent remainder monies for the holiday – I have phoned them and left a message stating that I’d cancelled the holiday in writing and am therefore assuming this to be a clerical error. But doesn’t that just top it off?!?!

Any advice appreciated – thanks in advance……

richardw

I think they have decided to keep all the deposit, like it said in the terms and conditions that they could, you might get something as a gesture of goodwill.

SuzanneWW

but surely they had an obligation in the first instance to explain over the phone (at the time of taking the deposit) the t&c?

richardw

Deposits are often non-refundable, did they describe the deposit as a deposit or a part payment?

Bossyboots

SuzanneWW wrote:

but surely they had an obligation in the first instance to explain over the phone (at the time of taking the deposit) the t&c?

We had a conversaton about just this sort of thing yesterday at work.

I cannot remember the case law someone quoted but it was to do with a hotel and the ruling was that you cannot impose terms and conditions that were not brought to the attention of the customer at the time of taking payment and entering into a contract.

I would say therefore that they have to refund the deposit because you were not made aware of the fact it was non-refundable until after it was paid and, that there was no opportunity to become so aware prior to payment.

richardw

Here's a definition

"transitive verb to give a sum of money as part-payment or security"

Security to me implies non-refundable.

Bossyboots

richardw wrote:

Here's a definition

"transitive verb to give a sum of money as part-payment or security"

Security to me implies non-refundable.

The OP was not given a chance to see whether the company were using part payment or security as their definition of a deposit. That is the issue here and you cannot impose a contract term on someone if they were not made aware of it at the point the contract was entered into.

Personally I wouldn't have booked without seeing the T&Cs but the OP's OH did and that is what needs to be dealt with.

rchddap1

I did a bit of law at University, and the Terms & Conditions have to be made 'obvious' to the customer at the point where they enter into a contract. Eg, in most shops you see returns informations by the tills. It is large and obvious when you buy the items. Or it is on the receipt. Hiding those terms and conditions behind the desk and whipping them out when someone tries to return something isnt good enough.

So, you can't impose a contract term on someone who was not made aware of that term when they entered into the contract in the first place.

Have you tried talking to Trading Standards?

richardw

Does the word 'Deposit' include any implied term?

What did they actually say on the telephone, before payment was made?

SuzanneWW

Thanks for responses guys.

I know my hubby should have asked the T&Cs but I suppose he thought there'd be no way that we'd cancel - any how, what's done is done.

We initially saw the holiday advertised on their website and that prompted him to book it. There are no T&Cs on their website incidentally either. Whilst on the phone, all they said was that they would need to take a deposit of £35pp (so £70 in our case) so he paid that over the phone using his card and that was that. Then they sent us a copy of their brochure with the T&C inside.

What's my next step do you think?
The hard thing I suppose is proving the conversation - i.e. it's their word against ours that they didn't tell us the T&Cs at the time of booking over the phone.

SuzanneWW

haven't tried trading standards yet no - think i will though.