Cancellation of an order

DullGreyGuy

Aylesbury_Duck said:

DullGreyGuy said:

Aylesbury_Duck said:

DullGreyGuy said:

Presumably this is a UK company in which case the Consumer Contracts Regulations 2013 apply as an off premises sale in which case you have 14 days from the date of delivery of the goods to cancel 

How did you pay the £4K? Card?

I don't think it would be considered as such, because OP had the opportunity to visit the retailer (albeit at a show) and see/test the product.

OP, what they've described as the way forward sounds lawful and correct to me.  They're entitled to protect their losses, so if they're able to re-sell the motorhome at the same or greater price, their only costs would be administrative.

https://www.legislation.gov.uk/uksi/2013/3134/regulation/5/ 

“off-premises contract” means a contract between a trader and a consumer which is any of these—

(a) a contract concluded in the simultaneous physical presence of the trader and the consumer, in a place which is not the business premises of the trader;

(b) a contract for which an offer was made by the consumer in the simultaneous physical presence of the trader and the consumer, in a place which is not the business premises of the trader;

(c) a contract concluded on the business premises of the trader or through any means of distance communication immediately after the consumer was personally and individually addressed in a place which is not the business premises of the trader in the simultaneous physical presence of the trader and the consumer;

(d) a contract concluded during an excursion organised by the trader with the aim or effect of promoting and selling goods or services to the consumer;

“business premises” in relation to a trader means—

(a) any immovable retail premises where the activity of the trader is carried out on a permanent basis, or

(b) any movable retail premises where the activity of the trader is carried out on a usual basis;


This was a show and so I cant see how it meets the definition of a the trader's business premises

Thanks.  In which case, is the clause of contention the second (b) in your post, and whether the retailer's presence at the show constitutes "usual" business?

I think both aspects "movable retail premises" and  "carried out on a usual basis" are both up for debate.

The former, in my mind anyway, is really talking about something like a food truck. I'm not sure if a display at a show counts as a "movable retail premises"

A quick google throws up Verbraucherzentrale Berlin eV v Unimatic Vertriebs GmbH as the test case on the matter considered by the European Court of Justice (given it stems from EU legislation) which determined:

must be interpreted as meaning that a stand, such as that at issue in the main proceedings, run by a trader at a trade fair, at which he carries out his activity for a few days each year, constitutes ‘business premises’ within the meaning of that provision if, in the light of all the factual circumstances surrounding that activity, in particular the appearance of the stand and the information relayed on the premises of the fair itself, a reasonably well-informed and reasonably observant and circumspect consumer could reasonably assume that the trader is carrying out his activity there and will solicit him in order to conclude a contract, which is for the national court to ascertain.

Obviously this is slightly different as it wasnt a trade show but imagine similar principles would apply... a medium size law firm blogging on the matter however recommend that its still open to interpretation if you also have a permanent premises and it would be prudent to treat it as an off premises sale

bris

Obviously this is slightly different as it wasnt a trade show but imagine similar principles would apply... a medium size law firm blogging on the matter however recommend that its still open to interpretation if you also have a permanent premises and it would be prudent to treat it as an off premises sale

Yes but at the same time you can also say that trade shows are a huge part of their business that they could be treated as their place of business, especially if they do a lot of them.

You can have more than one place of business.

I'm pretty sure I saw once where a trade was was considered their place of business.

Undervalued

bris said:

Obviously this is slightly different as it wasnt a trade show but imagine similar principles would apply... a medium size law firm blogging on the matter however recommend that its still open to interpretation if you also have a permanent premises and it would be prudent to treat it as an off premises sale

Yes but at the same time you can also say that trade shows are a huge part of their business that they could be treated as their place of business, especially if they do a lot of them.

You can have more than one place of business.

I'm pretty sure I saw once where a trade was was considered their place of business.

That is certainly my take on this.

Ultimately the dealer has the OP's money so unless they are persuaded to change their mind the only option is to sue for the return of the deposit (or whatever part of the deposit the dealer retains).

Given the amount of money involved I think the OP should take legal advice.

Aylesbury_Duck

Undervalued said:

bris said:

Obviously this is slightly different as it wasnt a trade show but imagine similar principles would apply... a medium size law firm blogging on the matter however recommend that its still open to interpretation if you also have a permanent premises and it would be prudent to treat it as an off premises sale

Yes but at the same time you can also say that trade shows are a huge part of their business that they could be treated as their place of business, especially if they do a lot of them.

You can have more than one place of business.

I'm pretty sure I saw once where a trade was was considered their place of business.

That is certainly my take on this.

Ultimately the dealer has the OP's money so unless they are persuaded to change their mind the only option is to sue for the return of the deposit (or whatever part of the deposit the dealer retains).

Given the amount of money involved I think the OP should take legal advice.

You beat me to it.  At the moment they have £4k invested, with the potential for that to escalate over the next year.  On balance, I still think the retailer is on pretty strong ground (and their response to date suggests they are pretty knowledgeable on their position in consumer law), but their position is perhaps challengeable and to do so probably requires some proper legal opinion when the magnitude of the potential cost is considered.

DullGreyGuy

bris said:
You can have more than one place of business.

I'm pretty sure I saw once where a trade was was considered their place of business.

You certainly can, just the lawyers were saying if your only sales channel is shows then its more defensible as a business premises whereas conversely you are more at risk of it not being considered your business premises if you have a permanent location somewhere.

If it isnt deemed an off-premise sale, which looks a lot less certain now having seen the ECJ ruling, then there arent statutory rights of cancellation and so it comes down to the terms in the contract. If they give no right of cancellation then you dont have one. Assuming the OP didnt go ahead with the purchase then they would be in breach of contract and the business would be entitled to recover their losses caused by that breach. They do however have an obligation to take reasonable steps to mitigate those losses and the key one will be to resell the vehicle to another punter. 

Lorian

km1500 said:

Yes it is not an off-premises sale, but on-premises. You entered into a contract to buy said camper van.

How can you tell? From the OP post is sounds like no contract was formed or signed during the show visit, but perhaps over the phone the next day?

km1500

Yes on the phone they agreed to buy the van, agreed a price and paid a deposit. Pretty much the definition of forming a contract.

Aylesbury_Duck

My reading of it is that they went to the show, saw the demonstration vehicle, discussed it and then placed the order by phone. That doesn't make it an off-premises contract (ignoring the debate about whether a show constitutes a business's premises, of course).

If I spend time in a sofa showroom, try and discuss sofas and then order online the next day, that's not a distance sale.

the_lunatic_is_in_my_head

A “distance contract” means a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded;

I think the use of exclusive is the part excluding contracts such as the OP where they met the trader in person beforehand.

As OP mentions a phone call the next day to pay the deposit I don't think it's off premises either. 

Quoting the OP, He said they would only go up in price and that if we put a deposit down before close of play on Sunday (the next day), he could get us 2024 plate but at the current price. 

I wonder how true that bit was but of course prove it was even said let alone true

Terrys23

Thank you everyone for your comments.  

We can only hope that they will do as they say and give us a refund when they get another buyer.  

At the end of the day we made a huge mistake in feeling panicked to act quickly - hindsight is a wonderful thing.