Double glazing fitter trying to charge for cancelled work

Manxman_in_exile

HillStreetBlues said:

the_lunatic_is_in_my_head said:

I'm always happy to be corrected where I'm wrong but based on what is legal position rather than what feels right, if you have a source or experience to share to support your view it may provide a stronger argument against the legislation that's been posted  

But on this you are only using the Literal Rule, ignoring any of the three other rules.

If a judge feels that the Literal Rule doesn't serve justice they can apply a different rule.

So if a judge feels the fact the glazer refused to contact the OP, was the main reason for another date wasn't given, the judge can treat it as if  it was. So although Literal Rule would says the the OP is at fault, the judge could use the Golden Rule by not restricting the decision to the literal wording of an Act as in Adler v George (1964)

I'm not sure that's right?

I can only refer to Wikipedia but it seems to confirm what I recall from my degree (albeit 45 years ago... )

A court will only apply the Golden Rule if a literal interpretation would lead either (i) to a "manifest absurdity", or (ii) to a conclusion contrary to the principles of public policy.  I'd suggest those are both rather high bars and that neither applies here.

I'm not sure that a judge thinking that a literal interpretation wouldn't serve justice would be sufficient to deviate from the literal words.

But I'm not a judge, so might well be completely wrong.*

Personally I think both parties are at fault here.  The trader for not keeping the OP informed about what was happening and the OP for not imposing a deadline and for not telling the trader they were treating the contract as at an end.

If I were the OP I don't think I'd be confident of getting an outright win if I were sued, so I'd try to settle.  I'd consider anything better than 50/50 a result.

If the OP really doesn't want the trader to be "out of pocket" then they'll need to pay the trader 100% of what it's cost him.  I doubt he can return what I presume is a made to measure unit.



*  I might well be wrong relying on Wikipedia(!) but - assuming it accurately reflects current law - it does confirm what I was taught all those years ago.

Manxman_in_exile

Smithers37 said:

Op, there’s a lot of bad advice posted on this thread, not uncommon on these boards to be honest.

At the end of the day, it doesn’t matter if the trader ordered a part, you’re under no obligation to pay for it if you’ve not accepted the work which by the sounds of it you haven’t. The trader will absolutely be able to send it back so they won’t be out of pocket.

Glad someone else was willing and able to do the work.

I think this is the worst advice here.  I don't even know what "... you’re under no obligation to pay for it if you’ve not accepted the work ..." means.

The OP clearly entered into a contract with the trader and the trader incurred expense on the basis of that contrcat.  After that they were both at fault.

HillStreetBlues

@ Manxman_in_exile

I would agree if 50/50 if neither of them tried to contact the other, but the OP did try via two methods.

So if the glazer took the OP to court claiming they weren't given another date couldn't the judge consider it as absurd as it was the glazer that refuse to engage in any contact.

It wouldn't be the intention of Parliament for a trader to to make it harder for a customer to rearrange by refusing contact.

Manxman_in_exile

@HillStreetBlues  -  OK, but based on the information supplied by the OP he could have contacted the trader after the third week in January had passed and told him (1) that the original estimated date had now passed, (2) that it was now over 7 weeks since the trader had measured up, and (3) that if the job wasn't completed within the following 14 days that he was cancelling the contract.  But the OP didn't do that, he just got somebody else to do the job.

If the OP had just said something like "Get it done in the next 14 days or I'm cancelling the contract", I'd agree with you and I'd be on his side, but that's not what he did.  The fact that the trader didn't reply to calls or texts doesn't change the fact that the OP didn't tell him he would cancel if the work wasn't done pronto.  (If I'd been in the OP's shoes I'd probably have taken the lack of a response as a warning to get a message in clearly saying "Get it done or else..." )

On the face of it I think it's the OP who's in breach of contract here by engaging somebody else to do the work without telling the original trader that they were in effect cancelling the contract.

But I also think that the trader has contributed to the loss he's suffered by not responding to the OP's efforts to contact him in a timely manner.  That's why I think a 50/50 sharing of blame would be reasonable.  Both parties are responsible for this muddle.

And the loss that needs to be shared is the cost price to the trader of the window unit.

I'd argue that the clear intention of Parliament was that in a case where no date has been specified for completion of a contract then, after 30 days (or whatever the legislation says), the consumer has the option to impose a deadline on the trader, and if the trader doesn't meet that deadline then the consumer can cancel.  The intention seems to be to make sure the trader is given fair warning of what will happen if they don't complete the work according to the newly imposed deadline.  The OP didn't do this as far as I can see.

HillStreetBlues

@Manxman_in_exile

The OP could have considered a few factors
Was there a delay in supply, was the glazer too busy to fit,  did the glazer still want the contract, did the glazer drop dead.

The only way to find out was to contact the glazer and ask if it was one of the first three (maybe hold a séance for the forth)
The OP did try to contact, although didn't use the latter method.

What would have been the point to send a text saying that work needed to be done my a certain date when it could be one of the latter two. The glazer might not now want contract,  or could be deceased  so to misquote Monty Python an ex-glazer.


I feel the OP had a right to know that the contract would be completed, once the due date of completion had passed.

The glazer gave no indication the contract would be completed, never stated it was a delivery issue, so how was the OP to know that they had to give a further date.

That's why I side with the OP as there are more angles of attack or should I say defence.
 

Manxman_in_exile

Well we'll have to agree to differ, but I'd just make the following two points:

HillStreetBlues said:

@Manxman_in_exile

The OP could have considered a few factors  Was there a delay in supply, was the glazer too busy to fit,  did the glazer still want the contract, did the glazer drop dead...

... What would have been the point to send a text saying that work needed to be done my a certain date when it could be one of the latter two. The glazer might not now want contract,  or could be deceased  so to misquote Monty Python an ex-glazer...

I think the point in doing it would have been that that would have been the correct way to proceed and would have given the OP a defence under the statute if he was sued by the trader.  I don't think it matters why the trader didn't respond to any earlier messages - what matters is that the OP didn't even attempt to tell him "get the work done by dd/mm this year or I'm cancelling the contract"

HillStreetBlues said:

... I feel the OP had a right to know that the contract would be completed, once the due date of completion had passed...

I think that the right the OP had - but didn't exercise - was to tell the trader to get the work done by a specific date and that if he didn't accomplish that then he would cancel the contract.

I can't disagree that the trader has acted unreasonably (although we don't know why he didn't respond more quickly) but I think the OP has acted unreasonably as well.

Having said that, I can't honestly say that I know the answer to this one.  The trader hasn't sued anybody yet, but if they did, and it ended up in court, the judge might agree with your view.

(NB -  I keep saying "cancelling the contract" but I think the correct wording is that the consumer can "treat the contract as at an end".  I'm not aware that there's any significant practical difference between the two)

HillStreetBlues

Manxman_in_exile said:

Well we'll have to agree to differ

Happy to do that

We both could be right or both could be wrong, it all depends on so many factors.

A winnable case badly presented can lose, a losable case presented wall can win, different judge different day etc etc

born_again

Given the OP has said "I don't want the guy to be out of pocket" despite all the messing around.

Simple answer is to ask for a copy of the invoice of the purchase from where it was sourced & pay the cost price of the unit. 

MarvinDay

born_again said:

Simple answer is to ask for a copy of the invoice of the purchase from where it was sourced & pay the cost price of the unit. 

And if the OP has more windows of the same size and has somewhere suitable to store the new sealed unit, taking and keeping hold of it wouldn't be a bad idea just in case it's needed in the future.

unholyangel

I'm going to throw my spanner in. If the contract sets a price for the window, the 30 day limit applies to the goods. However the services doesn't have a 30 day limit, just reasonable time. If the contract doesn't set the price for the window, there is a contract for the transfer of goods but not a contract for sale of goods. 

And the remedy for that breach isn't repeat performance. Its reduction in price, up to the full price.