Am I entitled to a refund?

Requiem

Hi there,

I'm hoping someone will be able to advise me. I arranged an order of two items built by a joiner back in May. I was given as estimate of 3-4 weeks for completion, with "up to 6 weeks at busiest periods". It's been around 8-9 weeks since I paid (and several months since we first discussed the order requirements) and he has not even started on the project.

I've been in contact with him at the six week mark and was told that he is currently going through a relationship break up. He first told me he is 2-3 weeks behind on orders, then two weeks later said it would be another 2-3 weeks but may be up to 4.

I politely requested a refund as he has not stuck to the original timeline which is causing me issues with other sellers who are now on hold due to his personal life and problems and inability to fulfill the order.

I paid in full via bank transfer back in May. (Stupid, I know).

He has responded that he cannot issue me a refund as he has already bought the materials (though from what I gather he has two joinery businesses and buys in bulk anyway, so I'm not entirely sure how true that is...) and that it's just a case of getting around to building it.

Unfortunately this means that it's either costing me money by having to replace the items with temporary ones in the meantime, or by having to cancel the two pending sales who are currently on hold due to his extension of the timeline.

He also claimed that he's now aiming for the middle of next week for completion, approximately 7 days away, when the last communication before that said it could be up to four weeks...

What are my rights and what can I do?

Thanks,

Req

unholyangel

How did you make the arrangements with him? Have you signed any kind of contract?

Requiem

unholyangel wrote: »

How did you make the arrangements with him? Have you signed any kind of contract?

No, it was arranged via forum PM's on another site. There is a private message history of our conversations including his acceptance of the order, etc.

Freddie_Snowbits

If you have paid him, tuff, if not, take the business elsewhere

fthl

assuming it is a contract for a thing, rather than a service to build a thing, then the fact that he has bought materials is irrelevant. Again, assuming that it is a contract for a thing and not a service then the soga applies and this states that, in the absence of a contrary intention, goods must be supplied within a reasonable time. What is a reasonable time is a question of fact. Helpful, huh?

I don't see the fact that the contract was concluded by pm a huge issue, as you have paid him.

I think I would write to him making time of the essence for the contract and giving him a date to complete by. If he fails to complete by that date then you will consider him to be in fundamental breach and will take action to recover the contract price.

unholyangel

By his reasoning, he could buy the materials the day after speaking to you then not complete the contract for a year =/

While it may hold true in the case of DSR that custom items are not covered, from what you've said, you yourself are a business so DSR wouldnt be applicable anyway.

However the Supply of Goods and Services 1982 act is applicable. Do as above poster suggested and make time of the essence if you havent already.

somethingcorporate

unholyangel wrote: »

However the Supply of Goods and Services 1982 act is applicable. Do as above poster suggested and make time of the essence if you havent already.

You can not unilaterally change the contract or insert terms once it has been agreed, so I feel this could be a non-starter.

You will just have to be patient.

unholyangel

somethingcorporate wrote: »

You can not unilaterally change the contract or insert terms once it has been agreed, so I feel this could be a non-starter.

You will just have to be patient.

Not saying to change the terms. But given an estimate at the start then you could use that to see what is reasonable in terms of waiting.

If the estimate was 2 months, you could maybe understand it taking maximum of double the amount of time. Even then i would personally say its a bit long and should aim for 150% of the estimate but anything over 200% has got to be taking the mick.

Different if a time line hadnt been discussed at all. But it has. So not injecting terms at all. Simply solidifying

somethingcorporate

unholyangel wrote: »

Different if a time line hadnt been discussed at all. But it has. So not injecting terms at all. Simply solidifying

My laymans understanding is that the whole point of 'time being of the essence' would render any such clause a condition of the contract rather than a warranty and any breach relating to this would allow repudiation of the contract rather than only damages.

Whilst you may be 'solidifying' you would need to be able to justify that time being of the essence was indeed a condition when the contract was agreed (and given the evidence above I would suggest it isn't).

Just my thoughts...

unholyangel

But not making time of the essence from the outset doesnt mean that it can not be made clear later.

It just means that the position of it would be up to a court to decide rather than taken as part of the contract that was agreed.

It is purely a personal opinion but imo, because an estimate was given by him, the fact he has been unprofessional, that the op is also looking to lose sales because of his tardiness and that he gave the impression 6 weeks would be the maximum time to wait, it wouldnt be unreasonable to serve a notice that time is of the essence.

The op has been waiting 8-9 weeks for something that was originally said to be 3-4 weeks.....6 weeks max.

somethingcorporate

unholyangel wrote: »

But not making time of the essence from the outset doesnt mean that it can not be made clear later.

It just means that the position of it would be up to a court to decide rather than taken as part of the contract that was agreed.

It is purely a personal opinion but imo, because an estimate was given by him, the fact he has been unprofessional, that the op is also looking to lose sales because of his tardiness and that he gave the impression 6 weeks would be the maximum time to wait, it wouldnt be unreasonable to serve a notice that time is of the essence.

The op has been waiting 8-9 weeks for something that was originally said to be 3-4 weeks.....6 weeks max.

It would always be up to a court to decide anyway.

I can totally see your point but 'clarifying' contract terms once a contract has already been agreed is a big no-no. This is effectively what you are doing, as you are 'clarifying' that you interpreted a term to mean something which should have been agreed and made obvious at the outset (which evidently wasn't).

Overall, we agree the OP has been mistreated and should be able to seek a refund.