Urgent help needed! Right to cancel query!

becks92

Hi everyone,

We recently went to the Grand Designs trade show and we're looking at several things including a water softener. We bought one but as we didn't have the lump sum of £750 they split it into three payments with the first one of £250 paid at the show.

We have thought it over and decided that at this point in the renovation we don't really need it. It's due for delivery tomorrow so yesterday I called to cancel the order, whereupon I was told to email in, which I did. This was their response:

Thank you for your email

You entered into an agreement with us for your water softener at the Grand
Designs show as per our terms and conditions. There is no provision within
these terms and conditions, or in law, which grants you the right to cancel
the order. With regards to the other water softener that you have seen this
will not be the same softener, if you would like to contact our office on
0116 276 3334 we can explain the differences between any other softener on
the market and the EMS premier softener that you have purchased. You are
obliged to pay for the goods so that we may supply them to you. If you
choose not to pay the balance we will seek the loss of bargain and will use
the monies currently held to set off against those losses.

Regards
East Midlands Water Company

Our terms of sale were not explained to us but then again we didn't ask. On the back of the order it states:
:mad:
6.1 When the customer orders goods other than at a trade show at which he deals directly with a representative of EMWC, the customer may cancel the order for the goods by giving written notice to EMWC within 7 working days. Goods ordered at trade shows may not be cancelled under this clause.

What are our rights in this, can we really not cancel and get a refund?

Bareing in mind we haven't even received the goods yet...

Any help would be most appreciated

browneyedbazzi

My personal opinion is that contracts formed at one-off trade show stands (as opposed to regularly held market stall pitches) are 'off-premises' contracts as defined in the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations and as such you have a right to cancel as per Regulation 29. That is just my opinion though and as the regulations are so new there is no case law to assist us in interpretation.

You could point out the regulations and the right to cancel contained in them along with an assertion that the show you purchased at is not the company's business premises and therefore you believe the right to cancel applies and see what comes back...they may cave, but they may not. If they don't perhaps you'd like to be the person who tests this in court and do us all a favour!

peachyprice

I agree with beb, it's not somewhere they usually operate, it can't be because it's only there annually. Therefore the 14 day cancellation should apply.

'Business premises' will include a trader's permanent premises as well as temporary premises (such as a market stall) where they usually operate. This is a key definition with regard to the above contract types but it is not defined clearly by the Regulations.

Have a read through this OP.

http://www2.eastriding.gov.uk/business/trading-standards/fair-trading/selling-away-from-business-premises/

stork_2

If the trader operates from the same stand/stall at a range of different events/exhibitions, it's quite possible that it's not an off-premises contract.

Recital 22 to the Directive allows for this possibility:

"(22) Business premises should include premises in whatever form (such as shops, stalls or lorries) which serve as a permanent or usual place of business for the trader. Market stalls and fair stands should be treated as business premises if they fulfil this condition. Retail premises where the trader carries out his activity on a seasonal basis, for instance during the tourist season at a ski or beach resort, should be considered as business premises as the trader carries out his activity in those premises on a usual basis. Spaces accessible to the public, such as streets, shopping malls, beaches, sports facilities and public transport, which the trader uses on an exceptional basis for his business activities as well as private homes or workplaces should not be regarded as business premises. The business premises of a person acting in the name or on behalf of the trader as defined in this Directive should be considered as business premises within the meaning of this Directive."

The German case BGH (DE) 28. Oct. 2003 X ZR 178/02 was decided under the previous Directive as implemented in German law, but the decision was that a sale at a trade fair was not subject to cancellation rights. In the light of this case, one might have expected the Commission to provide explicitly for cancellation rights at fairs/exhibitions if this had been their intention. They didn't, so I wouldn't be confident to say that cancellation rights would apply.

becks92

Thanks everyone for your replies. We actually called the Citizens advice bureau in advance of emailing them and they pretty much said the same thing that if they go to exhibitions regular then it could be classed as their premises of work.

However, we were never told at point of sale that this was not cancel-able. At no point was this pointed out or mentioned. This is the email we have sent them

Thank you for your response, I agree that we entered into an agreement with you although had Tim informed us of the cancellation rights, we wouldn't have gone ahead with the order. I believe on the citizens advice bureau website this is called a misleading omission and an unfair business practice. According to the website the points we should have been made aware of are these:

what the product or service is used for. These are called the main characteristics

the identity of the trader

the geographical address of the trader

the price (or how it will be worked out)

any additional charges
payment, delivery, performance or complaint handling arrangements if these are different from what you would reasonably expect

any rights that you have to cancel or withdraw from a contract

Once we had placed the order with Tim, he did indeed, show us the order form – the front of it, detailing what we had ordered written on it, then he gave us information leaflets on each of the products. Tim himself was very pleasant and helpful, however at no point were we told that we didn't have a right to cancel – had he done so, we would have walked away as we weren't totally sure about the purchase.

We decided within 3 days of placing the order that this product, at this time is not for us. We told you this early so as to minimise inconvenience to yourselves regarding the orders dispatch.

We feel that your email back to us be the complete antithesis of customer service and after having searched the web for reviews on your company have discovered many other people who have had the same experience albeit from the Ideal Homes Show. We have contacted Trading Standards and Citizens advice and they are looking into this. We also pointed them in the direction of http://www.reviewcentre.com/reviews145617.html#Reviews which contains a whole host of information.

We would like to put a lid on this experience as frankly, it has left a rather bad taste in our mouths. So I reiterate, under the misleading omission act we would like to cancel the order as already discussed and want a full refund of monies already paid.

We are waiting on a response although we are pretty sure we will have to take it. Ordinarily we dont jump into large purchases such as these and I usually research everything to the hilt. Feeling very foolish

wealdroam

You are not going to like this, is it not the case that if there were no cancellation rights then the seller could not tell you about them?

Yes, that is not good customer service, but I fear it may well be legally correct.

Kayalana99

becks92 wrote: »

Our terms of sale were not explained to us but then again we didn't ask. On the back of the order it states:
:mad:
6.1 When the customer orders goods other than at a trade show at which he deals directly with a representative of EMWC, the customer may cancel the order for the goods by giving written notice to EMWC within 7 working days. Goods ordered at trade shows may not be cancelled under this clause.

I'm no law expert on the rest, but have you signed this ? You'd get know where in a court of law saying 'he did not tell us' when you have signed a piece of paper with the details on.

Even without a signature, you have paperwork giving you the information that you 'should of been told legally'

I wouldn't see you getting a case on the fact you weren't told as you were given it in writing.

becks92

Unfortunately yes, he asked to sign regarding the payment.

Think we have been had on this, although the product is supposed to be quite good, we just didnt need it right at this time and got hooked in to his sales spiel... so annoyed at being so gullible

bod1467

Bear in mind ... you can still cancel, but they can retain any provable losses/costs incurred due to your cancellation. Unless the delivery date for the item is fairly soon then it is unlikely that such losses would amount to £250; probably more like £50 at most.

So ... just because you've cancelled doesn't mean they can retain the whole amount paid to-date. (Even if their T&Cs say so. This would be an unfair term and so fall foul of the Unfair Terms in Consumer Contract Regulations).

frugal_mike

Kayalana99 wrote: »

I'm no law expert on the rest, but have you signed this ? You'd get know where in a court of law saying 'he did not tell us' when you have signed a piece of paper with the details on.

Even without a signature, you have paperwork giving you the information that you 'should of been told legally'

I wouldn't see you getting a case on the fact you weren't told as you were given it in writing.

I imagine it would depend on whether the terms and conditions were handed out before or after the contract concluded. You can't be bound by terms that were not provided prior to conclusion. However its a bit of a moot point, because absent a statutory right of cancellation a consumer has no automatic rights to cancel. The seller doesn't need to make this explicit.

bris

bod1467 wrote: »

Bear in mind ... you can still cancel, but they can retain any provable losses/costs incurred due to your cancellation. Unless the delivery date for the item is fairly soon then it is unlikely that such losses would amount to £250; probably more like £50 at most.

So ... just because you've cancelled doesn't mean they can retain the whole amount paid to-date. (Even if their T&Cs say so. This would be an unfair term and so fall foul of the Unfair Terms in Consumer Contract Regulations).

Why do you keep spouting this crap, you should know by now loss of profit is a legal entitlement. Google it !!!!!! and learn something.