Am I entitled to a refund?

fthl

making time of the essence of a contract is one of the few (if not the only?) term of a contract that one party can unilaterally change.

By default time for performance is a warranty of a contract allowing an injured party to sue for breach (for example if the product/service has not been performed/delivered within a reasonable time. Often however, the right to claim damages isn't of great use unless there are losses that have been incurred as a result, and where these were within the reasonable contemplation of the parties at the time the contract was agreed.

Serving notice to make time of the essence elevates a term of a contract to a condition allowing the innocent party to essentially rescind the contract, and sue for any losses.

http://www.gillhams.com/dictionary/157.cfm

somethingcorporate

fthl wrote: »

making time of the essence of a contract is one of the few (if not the only?) term of a contract that one party can unilaterally change.

By default time for performance is a warranty of a contract allowing an injured party to sue for breach (for example if the product/service has not been performed/delivered within a reasonable time. Often however, the right to claim damages isn't of great use unless there are losses that have been incurred as a result, and where these were within the reasonable contemplation of the parties at the time the contract was agreed.

Serving notice to make time of the essence elevates a term of a contract to a condition allowing the innocent party to essentially rescind the contract, and sue for any losses.

http://www.gillhams.com/dictionary/157.cfm

Cool, thanks - you learn something new every day.

So, if the OP now serves notice to make time of the essence it will need to be reasonable to give them time to complete before seeking repudiation and damages.

Requiem

Thanks for the responses. Just to specify, I'm not a business, just a consumer. The two sales I mentioned that are on hold due to this unfulfilled timescale were referring to two animals I will be purchasing from other sellers. However, I cannot purchase either of these animals until the housing (the two products made by the joiner) are received.

Initially I based my house move on his estimates as I would have access to a rented van, which meant I would be able to pick the items up myself from his premises and transport them to my new home. However, as he did not complete within the initial 6 weeks (or even start building the goods), I am now in a position where I already have to pay additional funds to have the items couriered (Approx £80, the two items totalled at £120).

The two items are custom made, but every item he makes is. He doesn't pre-build stock to send out when orders come in like a shop would.

As of tonight I've sent a PM detailing a 10 day formal request for completion and will send the same info in a recorded delivery letter tomorrow. So far all contact has been via PM. I've instructed him that if the goods are not available to be collected within 10 days then I am entitled to a refund according to advice sought from OFT. This gives him nearly 10 weeks from date of payment.

I've not recieved a response as of yet, and if you have any additional advice I'd be grateful to hear it.

unholyangel

ahhhh it all becomes clearer

fthl

make sure you state that you are making time of the essence and you give a date for the contract to be performed by.

I don't think the OFT give advice, do you mean trading standards or consumer direct? If so I'd suggest you are accurate when making such statements. If they are wrong and the defendent (for lack of a better term) realises this he might think you are just bluffing and ignore your demands.

So, if the OP now serves notice to make time of the essence it will need to be reasonable to give them time to complete before seeking repudiation and damages.

Yes, although what is reasonable will turn on the facts of the case. doubling the estimate could be ok. For eg - two week lead time, delay hits four weeks, notice served giving another two weeks to complete. It needs to be reasonable to serve the notice and then a reasonable time given for performance. It isn't a science though.

If they don't complete then you seek to rescind* or reject, not repudiate. Repudiation generally entitles you to damages; in this case the OP will be seeking a return of the contract price and damages.


*although rescission generally used in misrep cases, the term seems vaild here too.