Unfair contract terms?

carminekitsune

Helping out a friend with a dispute she's having with a company that would have been putting in new doors and windows for her house and hoping for some advice

Long story short she is seeking to cancel citing their breach of contract. She is in a hurry to get his work done but the earliest they could have gotten a surveyor in was about 6 weeks after the contract was signed. The contract states they should do this within 21 days which has now passed.

Said company is now asking her for an £8000 cancellation fee citing the below term:

(c) The Company shall not be in breach of this agreement nor liable for any delay in performance or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended to allow performance of the Contract.

They say that Covid is causing delays beyond their control, which honestly I don't buy as a reason well over a year into the pandemic unless they've had some kind of outbreak at the company (which does not appear to be the case). She is redoing the whole house and surveyors from kitchen and bathroom installers have been able to visit with 1-2 weeks. And surely they should have informed of a delay before she signed if this were the case? 

Any help or advice would be appreciated! 

Grumpy_chap

When was the order placed?
When was the original installation date?
What installation date is now offered?

carminekitsune

Grumpy_chap said:

When was the order placed?
When was the original installation date?
What installation date is now offered?

Contract was signed early last month (June 2021). As far as I know they can't even give her an installation date until the surveyor has been in to do the official measurements. That should have been done before the end of June.

Grumpy_chap

That type of schedule is not necessarily unreasonable, especially if they have fewer surveyors because any are self-isolating or similar.

Was the requirement for a completion date set at the outset?

How was the £8k cancellation charge derived?  The window company can only claim for costs incurred, not just a random number plucked from the air or percentage of order value.  If they have not done much, which seems to be so if they have not even done the measure-up, then they cannot claim much.  At this stage, the window company will not have committed to a supplier, for example.

What deposit was paid?

carminekitsune

Grumpy_chap said:

That type of schedule is not necessarily unreasonable, especially if they have fewer surveyors because any are self-isolating or similar.

Was the requirement for a completion date set at the outset?

How was the £8k cancellation charge derived?  The window company can only claim for costs incurred, not just a random number plucked from the air or percentage of order value.  If they have not done much, which seems to be so if they have not even done the measure-up, then they cannot claim much.  At this stage, the window company will not have committed to a supplier, for example.

What deposit was paid?

I suppose it feels unreasonable as she's had other surveyors come in for other functions (kitchen bathroom and general building work, she's redoing the whole house) with no where near the same timescales. They haven't indicated any specific incidents of workers needing to self isolate and just cited Covid as a blanket reason for the delay.

I'm not actually sure what she discussed regarding timescales but I know she has been asking all the suppliers she's engaged with as she's had to put all her belongings into storage and this is a pretty big cost she has to factor in, getting bigger the longer the work takes. I will ask her though!

The 8k I know is a percentage of the contract value. She paid 2k as the deposit and they are asking her for another 6k to cancel the contract. Is there a specific rule they're breaching by calculating the cancellation fee that way? 

Jeremy535897

From a practical point of view, if she started with a different company today, there would be a lead time of presumably at least 21 days?

The bible is here:
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/450440/Unfair_Terms_Main_Guidance.pdf

You might look at 5.9.1 et seq for example.

My own reading of this is that the trader is on dodgy ground where:

• they seek to allow themselves an infinite amount of time to perform the contract if third parties that they are responsible for hiring fail to do what they need
• they seek to charge disproportionate cancellation fees (as Grumpy said, if they haven't measured up, how can they charge £8,000)

carminekitsune

Thanks both, this is very helpful! She's updated me saying the company is now threatening legal action against her so very helpful to get an understanding of her legal rights in this situation. I will send her the document for some light reading tonight haha. 

Jeremy535897 said:

From a practical point of view, if she started with a different company today, there would be a lead time of presumably at least 21 days?

She's understandably a little wary of getting someone new in before this is resolved and especially so of getting a tied into another contract that would make her financially liable for anything, but I think she has made tentative enquiries and they have indicated they can get a surveyor in within 2 weeks. Installation dependant on how long it takes to get the doors and windows manufactured.

That said the way they talked to her in the beginning was IMO bordering on harassment. If the amount they were asking wasn't so high personally I would have walked away even if I had to pay a fee. Time is definitely a factor in why she wants out but she's also generally shaken by the whole situation. 

Grumpy_chap

carminekitsune said:

The 8k I know is a percentage of the contract value. She paid 2k as the deposit and they are asking her for another 6k to cancel the contract. Is there a specific rule they're breaching by calculating the cancellation fee that way? 

This might be better asked on the Consumer Rights Board, or see if this thread can be moved.

One recent thread that covered essentially the same point follows (ignore the fact it is a wedding dress and not home improvements, that is irrelevant):
https://forums.moneysavingexpert.com/discussion/comment/78432094#Comment_78432094

carminekitsune

I agree, it's evolved in to a non-coronavirus specific discussion so asked on the other board. Thank you both again, I reall do appreciate it!