Seller claims telephone order was not distance selling

Dogsareace1

Hi guys, I literally feel sick, I placed a £2000 deposit on a new motorhome £75000 unseen over the telephone. I changed my mind within 14 days, I’ve spoken to citizens advice and used their form quoting the consumer rights act to notify the seller I had changed my mind. I’ve had a response the dealer says they do not meet the description of a distance seller and quoting a previous court case ruling where this was tried. He says as they don’t meet the criteria to be a distance seller so the distance selling rules don’t apply. And I have to proceed with the purchase or pay his costs on top of losing the deposit. I’m not sleeping or eating I literally don’t know what to do. Citizens advice only advise they do not represent.

MeteredOut

Did you buy from a trader or an individual?

Which previous ruling did they quote?

eskbanker

Dogsareace1 said:

I’ve had a response the dealer says they do not meet the description of a distance seller and quoting a previous court case ruling where this was tried. He says as they don’t meet the criteria to be a distance seller so the distance selling rules don’t apply.

Care to share more details of what exactly was said on these subjects?

Okell

As others have asked, was he a trader or a private individual?

And what is the case he has told you about?

And did CAB have any reservations about your situation?

I suspect it may revolve around the definition of a "distance contract" in para 5 of the regs:  "... a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme..."

What's an "orgainised scheme"?  Was this a one-off sale over the 'phone?

Dogsareace1

Thank you for your interest, I am reluctant to share details because I have the usual statement at the bottom of the email saying it is intended for me only. The organised distance sale or service-provision scheme is being quoted. It is a dealer not an individual, I’ve been careful to disclose accurate details to the C.A.B. and cross questioned them. They seem confident that I was covered. I’m now communicating directly with the M.D. at the dealership and he’s tying me up in knots.

pinkshoes

Dogsareace1 said:

Hi guys, I literally feel sick, I placed a £2000 deposit on a new motorhome £75000 unseen over the telephone. I changed my mind within 14 days, I’ve spoken to citizens advice and used their form quoting the consumer rights act to notify the seller I had changed my mind. I’ve had a response the dealer says they do not meet the description of a distance seller and quoting a previous court case ruling where this was tried. He says as they don’t meet the criteria to be a distance seller so the distance selling rules don’t apply. And I have to proceed with the purchase or pay his costs on top of losing the deposit. I’m not sleeping or eating I literally don’t know what to do. Citizens advice only advise they do not represent.

As you use the word dealer,  then I assume this is a business you bought from?

Why are they saying the rules don't apply? Have you EVER visited their business premises to look at their motor homes? Or was the only contact you have had with this business via telephone? 

(If you went to look at a similar motorhome on their premises then later phoned to purchase a new version then I believe this possibly doesnt count as distance selling - there was a similar sofa story on here a few years ago)

Dogsareace1

pinkshoes said:

Dogsareace1 said:

Hi guys, I literally feel sick, I placed a £2000 deposit on a new motorhome £75000 unseen over the telephone. I changed my mind within 14 days, I’ve spoken to citizens advice and used their form quoting the consumer rights act to notify the seller I had changed my mind. I’ve had a response the dealer says they do not meet the description of a distance seller and quoting a previous court case ruling where this was tried. He says as they don’t meet the criteria to be a distance seller so the distance selling rules don’t apply. And I have to proceed with the purchase or pay his costs on top of losing the deposit. I’m not sleeping or eating I literally don’t know what to do. Citizens advice only advise they do not represent.

As you use the word dealer,  then I assume this is a business you bought from?

Why are they saying the rules don't apply? Have you EVER visited their business premises to look at their motor homes? Or was the only contact you have had with this business via telephone? 

(If you went to look at a similar motorhome on their premises then later phoned to purchase a new version then I believe this possibly doesnt count as distance selling - there was a similar sofa story on here a few years ago)

I did visit previously and they didn’t have the model in stock, ironically I purchased a morphine from them 9 years ago. They haven’t said any of that was an issue, I directly asked CAB if the pre visit was a problem, they said the rules still apply.

Aylesbury_Duck

Did you look at a similar model, it perhaps only differing in specification?  As I understand it, if this were a car and you viewed one model of, say, a Ford Focus and then put a deposit on the estate version over the phone, the sale wouldn't be considered a distant sale.  

Is your situation similar to that example?

Alderbank

Okell said:

I suspect it may revolve around the definition of a "distance contract" in para 5 of the regs:  "... a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme..."

What's an "orgainised scheme"?  Was this a one-off sale over the 'phone?

Trading Standards have helpfully provided a guide to the CRA for traders.
https://www.businesscompanion.info/en/quick-guides/distance-sales/consumer-contracts-distance-sales

This includes:

Distance contracts.
A contract made between a trader and a consumer where they are not together, which is negotiated and agreed by one or more organised means of distance communication - for example, by phone, post or over the internet. There must be an organised distance scheme for selling goods and/or services so the Regulations are unlikely to affect a business that sells a product at a distance as a one-off. For instance, a knitting wool shop that does not normally sell at a distance would not fall within the definition of a distance contract when a consumer rings to ask for a ball of wool to be posted to them because they are unable to call into the shop; this is unlikely to be classed as an 'organised' distance selling scheme.

I wonder if the case here is that this dealer normally only sells motorhomes face-to-face from his premises; the OP has phoned him up and said, 'I am some distance away and I know the specification of this motorhome. Your price is better than my local dealer, can we agree a deal over the phone?'

If so, this is unlikely to be classed as an 'organised' distance selling scheme.

Brie

How did you pay the deposit?  I'm wondering if it's possible to claim the deposit back via your own bank.  

eskbanker

Brie said:

How did you pay the deposit?  I'm wondering if it's possible to claim the deposit back via your own bank.  

On what grounds?

Chargeback is highly likely to be challenged by the merchant, based on the discussion relayed above.

Section 75 also wouldn't apply in the absence of breach of contract or misrepresentation by the merchant.