Do we have any rigths

Arnold03

Hello Everyone - 

My uncle and his wife purchases a static mobile caravan via a trader that advertises online, and had several conversations, the trader did recommend that my parents come and view in person but due to health issues they were unable to do this. 

They went ahead with the sale, and paid a partial deposit, no actually contract sent and signed, verbally told the deposit would secure the sale and that the balance was due when the caravan was on the trailer on day of delivery. 

Deposit was paid on a debit card (I know!) online via a link sent from the trader using SQUARE. 
At this point no delivery date had been arranged or agreed. My Uncle was then taken ill and contacted the trader to advise that he needed to delay any delivery for 2-3 weeks and would be in touch to arrange a mutually agreeable delivery date. Sadly the illness has mean that they can no longer proceed.

It would seem that no contract has been signed and the receipt from them doesn't show what it was for and if it was non refundable etc.

My uncle has approached the trader and asked would their be any partial refund possibility, the long and short is trader is saying he has incured large costs the majority being from the transportaion company who offer a NO REFUND policy and he had booked it - no date had been agreed or arranged.

My Uncle just wants to know if he has any rights at all, he understands that the dealer may have incurred some costs, cleaning etc but the transportation shoudln't have been booked as no dates agreed? 

Of course this might just be an expensive lesson for them, I believe the DSR would not help here as the item has not been actually delivered. Just your thoughts? 

the_lunatic_is_in_my_head

Hello OP

This is covered by terms that may be regarded as unfair, basically the CRA intends to prevent the trader from retaining large sums when the consumer decides to breach the contract.

The ordinary position is costs or loss of profits but loss of profits should not be claimed where another customer can be found, which with a caravan is likely so basically it should be a refund of the deposit minus any reasonable (and real) costs. 

Of course if this was a distance contract then the right to cancel exists assuming you purchased via an organised scheme of placing such orders, if the trader typically takes orders over the phone or via a website then the right to cancel should exist.

If you have a mixed contract, i.e £10,000 caravan £1,000 transport then perhaps the transport aspect is excluded, on the other hand is transport of a caravan from trader to consumer any different to postage of a parcel from trader to consumer? 

Arnold03 said:

 I believe the DSR would not help here as the item has not been actually delivered. Just your thoughts? 

Cancellation period begin when the contract is entered into so that doesn't matter  

How much was the payment? How much does the trader want to keep from it?

What was the company purchased from?

Ectophile

Of course this might just be an expensive lesson for them, I believe the DSR would not help here as the item has not been actually delivered. Just your thoughts?

On most purchases, the distance selling rules allow you to cancel at any time up to 14 days after delivery.  That would therefore include any time before the goods are delivered.  But the rules are complex, and the 14 day rule doesn't apply to everything.

If the seller hasn't given your relatives proper contract details, including cancellation rights, then the seller is in a very weak position legally.  These details should be in a durable form, generally considered to be on paper or in an email.  A web site doesn't count, as the seller can change that whenever they wish.

Arnold03

Thanks guys, payment was £2000 no contract given, trader is claiming he has paid the transport company £1500+vat and that he has been told its non refundable .. but no delivery date had been booked or agreed so it shouldn’t have been booked with no date? He is suggesting that the removals people might let him move that fee to,  transport booking from him, but it’s not looking likely. I just wanted to know what legal right my uncle might have. He would have been very fair and was hoping tha 50% would be fair and agreeable, but it is not looking encouraging, and I wanted to know what my next steps could be if the trader cannot help.  He is suggesting getting his legal team involved and this will generate further costs. My uncle is poorly and just wanted this to hopefully be resolved. I just wanted to be able to say no chance or you have these rights… is a chargeback looking to be the only route if the trader cannot help. 

MeteredOut

Has he asked for proof of the payment to the transport company?

the_lunatic_is_in_my_head

Arnold03 said:

 He is suggesting getting his legal team involved and this will generate further costs. 

Very funny! 

OP I would advise to inform the trader you are exercising the right to cancel a distance contract under the The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 and that the cancellation period has been extended to 1 year and 14 days due a lack of required information as per Schedule 2 so the trader has 14 days to refund in full.

If the refund doesn't appear you'd send a letter before action then look at small claims. 

With a claim like this costs are extremely limited, in the event you went to small claims and lost the court might award some costs for things like travel, a figure of around £90 has been mentioned on here in the past as a rough max, one point of small claims is that one party can't bully the other by racking up silly legal fees so the trader's words above are nonsense. 

When I say "you" above I mean your uncle and I hope he is doing OK with his health  

Arnold03

MeteredOut said:

Has he asked for proof of the payment to the transport company?

He has sent it, but it looks like it could have been just done, I just didn’t see why he would pay for transport when no dates where agree or mentioned x 

PHK

Just to add that there are various laws at work here such as the Caravan Act, rules set down by the CMA and parts of the Consuner Rights Act do apply. Not to miss out codes of conduct. 

I would suggest taking advice through Citizens Advice as there’s a few things in the mix, such as where the caravan was coming from and the site it was going to. (eg if it’s being transported to a site then the licence will be needed etc which all carries a cost before the date is arranged). 

Arnold03

the_lunatic_is_in_my_head said:

Arnold03 said:

 He is suggesting getting his legal team involved and this will generate further costs. 

Very funny! 

OP I would advise to inform the trader you are exercising the right to cancel a distance contract under the The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 and that the cancellation period has been extended to 1 year and 14 days due a lack of required information as per Schedule 2 so the trader has 14 days to refund in full.

If the refund doesn't appear you'd send a letter before action then look at small claims. 

With a claim like this costs are extremely limited, in the event you went to small claims and lost the court might award some costs for things like travel, a figure of around £90 has been mentioned on here in the past as a rough max, one point of small claims is that one party can't bully the other by racking up silly legal fees so the trader's words above are nonsense. 

When I say "you" above I mean your uncle and I hope he is doing OK with his health  

hi thank you so much... my uncle was told by CAB that the DSL   would not apply as that kicks in upon arrival of goods. May I ask would a chargeback route (as he paid with a debit card via SQUARE to the trader ) be a step to follow, I do not think the Trader is going to help as he is saying cannot get refunded his money paid to the transport company, despite us having no delivery date  arrange or agreed!,,  if he goes via the chargeback route is there any legislation that he could quote on the form that might assist his claim?  I really appreciate all this advice.           

the_lunatic_is_in_my_head

Arnold03 said: he goes via the chargeback route is there any legislation that he could quote on the form that might assist his claim?  I really appreciate all this advice.           

Chargeback is separate to consumer rights and is governed by the card provider regulations.

@born_again is the expert here, but in my more limited knowledge you can raise a charge back for not as described (not applicable) or non-receipt but I have a feeling born_again will say the customer looking to refuse delivery will invalidate the chargeback route. 

That said always worth a chat with the bank to see their take on the matter. 

Arnold03 said:

hi thank you so much... my uncle was told by CAB that the DSL   would not apply as that kicks in upon arrival of goods. 

No worries Yes CAB can be inconsistent in their advice and not aways get it right but the regs are clear regarding when the cancellation period starts, it's more a question of what was paid for but without any terms or us looking at a the ad and receipt it's hard to say. Ultimately if the trader won't play ball then it is a case of LBA and small claims which is obviously a headache. 

Normally for £2k it would be worth that headache but with health issues involved it would be understandable if additional stress wasn't wanted at such a time, very much a personal choice on that one  

Letter before action only costs a stamp so is worth a bluff as a last resort. 

Arnold03

the_lunatic_is_in_my_head said:

Arnold03 said: he goes via the chargeback route is there any legislation that he could quote on the form that might assist his claim?  I really appreciate all this advice.           

Chargeback is separate to consumer rights and is governed by the card provider regulations.

@born_again is the expert here, but in my more limited knowledge you can raise a charge back for not as described (not applicable) or non-receipt but I have a feeling born_again will say the customer looking to refuse delivery will invalidate the chargeback route. 

That said always worth a chat with the bank to see their take on the matter. 

Arnold03 said:

hi thank you so much... my uncle was told by CAB that the DSL   would not apply as that kicks in upon arrival of goods. 

No worries Yes CAB can be inconsistent in their advice and not aways get it right but the regs are clear regarding when the cancellation period starts, it's more a question of what was paid for but without any terms or us looking at a the ad and receipt it's hard to say. Ultimately if the trader won't play ball then it is a case of LBA and small claims which is obviously a headache. 

Normally for £2k it would be worth that headache but with health issues involved it would be understandable if additional stress wasn't wanted at such a time, very much a personal choice on that one  

Letter before action only costs a stamp so is worth a bluff as a last resort. 

Thank you again...

Deposit paid and no receipt apart from the Square transaction which shows the payment to traders company, it does not stipulate what the deposit was for on the receipt, it simply shows  2000 has been sent.

Email to cancel  the transaction and request partial refund was sent within 7 days 

T&Cs were emailed across and were apparently on his website during our  emails requesting for partial refund - no contract of sale has been sent or signed, my uncle signed nothing, as a lot of the conversations happened on phone calls. 

He has sent the T&Cs to my uncle on email since. I think the crux for my uncle is that he understands the  trader has lost a potential sale, as my uncle wanted the caravan, and he was very open to a partial refund if possible, but the trader has been adamant that as transport costs have been booked at 1500+vat (he has sent an invoice from transport company to this effect)  that as they will not refund him or transfer to a further booking he will not be able to refund my uncle... BUT how can it have been booked when no date had been arranged? 

This might be a lost cause, but I just wanted to know if my uncle had any rights, i told them to pay deposit on CC as this MIGHT have given them more recourse.