Section 75

ChrisEdu

Last May, my wife and I placed an order for a shower at an exhibition, having explained to the salesman that we were planning a loft conversion and, at that time, didn't even have planning permission and did not know whether the shower would fit.

Due to those issues, we asked whether we could use our deposit for anything else if we subsequently found that we could not use the shower.

The salesman agreed that we could change our order for any other goods and so we asked him to write something to that effect on the order form, which he duly did.

Eventually, we got planning permission and have, this Februaury started the conversion. As feared, we found that the shower would not fit (not actually having taken delivery yet) and so we phoned the company to explain the situation. At that point they said we could still use our deposit to buy anything else.

However, when my wife recently phoned them to try to order something else instead of the shower, they said that we could only change the order to another shower - not what we'd previously been told.

Having written to the company, they are now taking a rather threatening and unsympathetic stance, saying we could have changed earlier but that it is now too late. We have contacted the credit company, as we paid the deposit using a card, but, so far, they have not been able to help us.

So, do we have a claim for misrepresentation or breach of contract that we could persue against the credit card company under Section 75? If we do, can anyone help with an appropriate turn of phrase to use in a letter, or suggest any other help.

We have also, subsequently learnt, that some of the terms and conditions on the back of the original order form are somewhat questionable, for example, that customers can not cancel an order placed at an exhibition and that, under no circumstances, are customers entitled to a refund of their deposit.

Thank you for any help.

Sorry, if this is in the wrong forum. I have also posted in another section.

chanz4

what were the excate words he wrote on the recipt

meer53

You need to look closely at the t & c's on your original order, what happens next depends on what they say. If you think they are questionable, why haven't you questioned them before now ? To be honest, if the retailer is offering to provide you with another shower, i think any section 75 claim would fail. It is down to you as the buyer to establish what the breach of contract or misrepresentation is, and to contact your card issuer to let them know that you may be taking action against them or the seller, without proof of breach of contract they won't be able to help. The seller can't be blamed for you buying a shower which doesn't fit.

ILW

Why pay a deposit if you were not even sure if you could use the item?

ChrisEdu

Thge salesman wrote, ' Customer can change to other products at trade show price' and 'Customer can buy any products at trade show price'.

As to why we haven't questioned the T&C before now, we have not had cause to feel the need to look more closely at them, as the seller has previously always assured us that the deposit could be used for any product.

The deposit was paid to secure the right to purchase any item at trade show prices. As mentioned previously, we explained to the salesman that we might not be able to go ahead with the shower and asked whether we could instead use the deposit to buy something else, which we were told we could - hence having the option to change to other products at trade show prices written onto the order form. Had we not been assured by the salesman that this would be possible, then, of course, we would not have put down a deposit.

chattychappy

Yes, I believe you should be able to make a claim.

From the way you have presented it, you have effectively made a payment in advance to secure certain pricing on a range of products from which you could select, the default choice being the shower. Assuming the deposit was more than £100, you should be OK.

The wording written by the salesman on the form doesn't quite express it that way. But it does say that you can select any products and that is what they are reneging on.

If the deposit was less than £100, then normally you would still be OK if the transaction value was over £100. More tricky if you weren't committed to a particular spend!

The T+Cs are important. To the extent they don't conflict with what is written on the front, they would still apply. Eg they could set some kind of time limit during which time you would have to take supply or lose the deposit. Where they conflict, probably what was written on the front would apply. Also if the salesman said something that is in conflict with the T+Cs, then there the concept of an "overriding verbal assurance" - which means that sometimes the spoken word takes precedence of written T+Cs that you have signed. Again this is more tricky if there is a "whole agreement" clause - one that specifically says verbal assurances are excluded and the written T+Cs form the whole of the agreement.

I think you have a good case on the grounds that there has been a breach of an agreed condition - one that you specifically negotiated and is evidenced in writing.

chattychappy

Forgot to add - I wouldn't worry about their T+Cs stating that in no circumstances are you entitled to a refund. According to your special deal, you can select between the products. If you can't, I would argue that this is a fundamental breach so the deal's off and you can demand your money back.

ChrisEdu

The value of the deposit paid on the credit card was exactly £100, with the shower price being approx. £900.

As I have previously mentioned, the only reason we paid a deposit was to secure trade show prices on any product, having been given the assurance by the salesman. He told us that if we did not need the shower, the money would be used to, in effect, open an account that we could use to purchase something else.

They are trying to claim that we have not acted in 'reasonable time' to change the order. However, we have previously contacted the company to confirm that we could change the order to buy something else and been told that that was fine. Indeed, only a few weeks ago my wife phoned to get an up-to-date catalogue from which we could order something else but they were unable to send one as, they said, they did not have any at the time.

Also, having explained to the salesman that it could be upto 12 months before we were in a position to make a final decision, due to not having planning permission at that stage, we did contact the company to confirm that we would need to change the order as soon as we became aware of the situation regarding the lack of suitable space in the conversion.

chattychappy

11 months is a while, but you made the possibility of a delay clear to them. As for their claim that you had to choose in a "reasonable time", I don't see how they can introduce that into the deal - besides 11 months is quite reasonable in the circumstances which they were aware of.

As an alternative to a s75 claim, you could consider taking out a small track claim. You can do it online (google moneyclaim online and read the notes). Obviously you should give them a warning that you intend doing this so they have a chance to settle.

ChrisEdu

Might I enquire, would the credit card company be jointly liable for any unfair terms or conditions placed upon the customer?

ChrisEdu

ILW wrote: »

Why pay a deposit if you were not even sure if you could use the item?

Because the deposit was to secure the right to buy any items at their trade show / exhibition prices, not to necessarily buy the shower.

We had explained the situation to the salesman and only paid the deposit after being given assurances that we could change our order to something else, at a later date, when we knew whether we'd be able to fit the shower into the conversion.

Otherwise, you are quite right, why pay a deposit for something that we didn't even know we could use? That is why we explained our situation and had the salesman write on the order form that we could change the order to buy something else.