What's my rights

Johnboy1954

Hi, Can anybody give me some advise please.
We ordered a conservatory in July and paid £2.500 deposit. We told the company we wanted it completed by Christmas and the sales man said that would be ok and wrote on the contract (To be completed by end of November). We rung the company and they said it would not be completed by Christmas and if we cancelled the order, we would have to pay another £4.600.
Have I got any rights.
Regards, John

unholyangel

Just tell them that the contract was conditional upon them being able to complete prior to christmas and as they have failed to keep to their primary obligation, it is a fundamental breach of contract on their part and any term allowing them to fail to meet their obligations while forcing the consumer to keep to theirs would likely amount to an unfair term and would be void in law.

How did you pay the deposit? If by credit card, contact your card provider and enquire about a section 75 claim.

hollydays

I'd be doing some research too on this company online are they a limited company

bris

If completion by the end of November is in the contract then remind them they are in breach of the contract. You will most likely have to sue them to get your deposit back.

naedanger

Johnboy1954 wrote: »

Hi, Can anybody give me some advise please.
We ordered a conservatory in July and paid £2.500 deposit. We told the company we wanted it completed by Christmas and the sales man said that would be ok and wrote on the contract (To be completed by end of November). We rung the company and they said it would not be completed by Christmas and if we cancelled the order, we would have to pay another £4.600.
Have I got any rights.
Regards, John

For the amounts of money involved I would have thought you should speak to a lawyer.

I've have heard (possibly wrongly) you need to have said time was of the essence to be able to get out of a contract because of late delivery. So be careful not to make an expensive mistake.

unholyangel

naedanger wrote: »

For the amounts of money involved I would have thought you should speak to a lawyer.

If have heard (possibly wrongly) you need to have said time was of the essence to be able to get out of a contract because of late delivery. So be careful not to make an expensive mistake.

Thats exactly what they did by stipulating they wanted it installed by the end of november. You do not need to use the term time is of the essence - that would amount to legal jargon.

However, even if they hadn't already stipulated a final completion date...the contract would still need to be carried out within a reasonable time if nothing was mentioned about it at the time of contracting.

Plus:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/284426/oft311.pdf

Read Group 2(f): exclusion of liability for delay.

This paragraph probably sums it up best:

2.6.6 Where there is a risk of substantial delay, a right for the consumer to
cancel without penalty may additionally help achieve fairness in relation to
an exclusion of liability for delay caused by circumstances beyond the
supplier's control. It will not make acceptable a term which allows the
supplier to delay at will.

In order to cancel without penalty, its necessary to let the consumer cancel without being worse off for having entered into the contract.

naedanger

unholyangel wrote: »

Thats exactly what they did by stipulating they wanted it installed by the end of november. You do not need to use the term time is of the essence - that would amount to legal jargon.

However, even if they hadn't already stipulated a final completion date...the contract would still need to be carried out within a reasonable time if nothing was mentioned about it at the time of contracting.

Plus:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/284426/oft311.pdf

Read Group 2(f): exclusion of liability for delay.

This paragraph probably sums it up best:


In order to cancel without penalty, its necessary to let the consumer cancel without being worse off for having entered into the contract.

The added wording "(To be completed by end of November)" has clearly set a completion date, which will give the op certain rights. However I do not think those rights include terminating the contract in as straightforward a manner as you are suggesting.

"The term ‘Time is of the essence’ refers to a contractual position in which, if one of the parties to the contract fails to complete their obligations by a specified date, then the other party can treat the contract as terminated."

"Setting a completion date is not sufficient to make time of the essence."

http://www.designingbuildings.co.uk/wiki/Time_of_the_essence_in_construction_contracts

I think that the op should speak to a lawyer before acting to ensure they don't make an expensive mistake. You think otherwise.

It is the op's decision.

unholyangel

naedanger wrote: »

The added wording "(To be completed by end of November)" has clearly set a completion date, which will give the op certain rights. However I do not think those rights include terminating the contract in as straightforward a manner as you are suggesting.

"The term ‘Time is of the essence’ refers to a contractual position in which, if one of the parties to the contract fails to complete their obligations by a specified date, then the other party can treat the contract as terminated."

"Setting a completion date is not sufficient to make time of the essence."

http://www.designingbuildings.co.uk/wiki/Time_of_the_essence_in_construction_contracts

I think that the op should speak to a lawyer before acting to ensure they don't make an expensive mistake. You think otherwise.

It is the op's decision.

Are you kidding? Have I suggested legal action anywhere? Is it going to cost OP anything to email them saying that he considers their failure to adhere to the deadline as a fundamental breach of contract? Have I even suggested sending a letter before action at this stage? By all means get a free consultation, but I would only advise paying for a solicitor when relations have completely broken down.

The only thing I did suggest was speaking to them and contacting their card supplier about a section 75 claim if they paid by credit card - which will cost them nothing and at the very least may spur the supplier into action.

From what OP has said, this is not a completion date with a date filled out in a box. It was actually written onto a standard contract that it was to be completed by end november - suggesting that this was indeed a condition of the contract rather than a warranty. It was an individually negotiated term - greater weight is given to individually negotiated terms than standard terms.

Furthermore, I'm sorry....but I'm going to trust the OFT which was written specifically in relation to consumer contracts rather than a wiki of any kind.

naedanger

unholyangel wrote: »

Are you kidding?

No. If you agree that the op should speak to a lawyer before acting to ensure they don't make an expensive mistake then why not just say this rather than argue.

From what OP has said, this is not a completion date with a date filled out in a box. It was actually written onto a standard contract that it was to be completed by end november - suggesting that this was indeed a condition of the contract rather than a warranty. It was an individually negotiated term - greater weight is given to individually negotiated terms than standard terms.

I agree that the completion date does forms part of the contract and that it was individually negotiated. What I am suggesting is that breaching that term may not be sufficient to permit the op to terminate it but to seek some lesser form of redress.

Furthermore, I'm sorry....but I'm going to trust the OFT which was written specifically in relation to consumer contracts rather than a wiki of any kind.

The OFT guidance does not say the contract can be terminated by the customer becauses there is a delay. It says the other party cannot exclude liability for a delay. These are not the same things.

It also says "The guidance cannot be a substitute for independent legal advice ... " which sort of supports my suggestion.

Johnboy1954

Thank you all for your very good advice. I will speak to the boss (wife) and see which way to go.

By the way we paid by debit card and (Must be installed by end of November) was hand written by the sales man.

Thanks, John

shaun_from_Africa

Johnboy1954 wrote: »

(Must be installed by end of November) was hand written by the sales man.

In my legally untrained opinion, having those words written on a contract are as good as having a time is of the essence clause in there.
It would be different if there was an estimated completion date but having the word "must" gives no wiggle room.

From the link that you provided naedanger:
"Time can be of the essence if the contract says it is, or where it can be implied from the contract" and I think that the use of the word "must" certainly implies that it is an important requirement.