Distance Selling Query

BACKTOBACK

The dealer know the distance selling laws. But his response is the invoice emailed to me when i paid the deposit says 'deposits on cancelled purchases are non refundable'

He believes he can over ride UK law by writing this term.

My only option is the credit card company or MCOL but i need to know i have a good case

BACKTOBACK

People asking who the dealer is i am concerned to name him at this point as he will see this (either by searching) or some one would pass it to him., It would then proceed into an argument.

The 15 day wait will be up very soon then i will approach the credit card. Should they agree with me and settle. I will come back and name the dealer (providing the mods are okay with that)

marcia_

https://forums.moneysavingexpert.com/discussion/comment/82041407#Comment_82041407

yes unless calling for a boycott you are ok to name them.

Okell

https://forums.moneysavingexpert.com/discussion/comment/82041406#Comment_82041406

"The dealer know the distance selling laws. But his response is the invoice emailed to me when i paid the deposit says 'deposits on cancelled purchases are non refundable'

He believes he can over ride UK law by writing this term…"

I'm not a lawyer but I think he doesn't know the law and he is wrong

Unlike the Consumer Rights Act 2015 I don't believe the Consumer Contract Regulations have a specific provision that prevents traders from trying to circumvent them.

However, when i raised this question a few months ago I'm pretty sure @A_Geordie (who I believe is a lawyer) came back and said that traders cannot get around the cancellation provisions by purporting to put something to that effect in their T&Cs

I'll see if I can find it.

"… My only option is the credit card company or MCOL but i need to know i have a good case"

FWIW I think you have a case. When you go to your CC company make it clear to them you want to make a s75 claim. Unfortunately they are likely to try to treat it as a chargeback which the dealer will almost certainly challenge

https://forums.moneysavingexpert.com/discussion/comment/82041407#Comment_82041407

Unless you say something untrue and/or defamatory, or call for a boycott of the trader, there should be no problem in naming them.

Aso by allowing others here to examine their T&Cs you might get more ammo to use against them.

Okell

@BACKTOBACK

"… I was emailed an invoice that says 'deposits on cancelled purchases are non refundable' after i had paid the £250. I thought nothing of this as at that time it was my intention to proceed…"

and

"… But his response is the invoice emailed to me when i paid the deposit says 'deposits on cancelled purchases are non refundable'

He believes he can over ride UK law by writing this term…"

Even if he could in theory get round the Regs, I don't see how you could be bound by a term saying deposits are non-refundable if he only told you that AFTER you had paid the deposit.

Grumpy_chap

The devil might be in the detail.

If the purchase satisfies the criteria for distance selling remote sale (which based upon the OP's account, this does appear to be) and the "deposit" is a deposit, i.e. the first stage payment for the purchase of the motorcycle, then the OP can cancel the order in full within 14 days and receive a full refund. (Are there exceptions for a motorcycle if there has been any diminution of value - as with a car?)

If, however, the "deposit" is a "reservation fee" whereby the purchaser pays a fee for the seller to remove the item from sale for a period of time that allows the purchaser to complete the purchase, then the reservation fee might not be refunded if the sale does not conclude. In this case, the purchaser has paid the fee and received compensation for that fee (that motorbike kept for a period of time and not sold to anyone else). It is common that this type of "reservation fee" is deducted from the purchase price if the sale does conclude, but that does not have to be the case - the "reservation fee" could be charged in addition to the full price of the motorbike.

I am only saying this for information. From what the OP has said the "deposit" appears to be a deposit and not a reservation fee. There could still be something in the T's&C's that defines the deposit as a reservation fee. Worth reading very carefully so that the OP knows their position.

Okell

This is what @A_Geordie previously said about traders not being permitted to use T&Cs to get round the provisions of The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013:

"Without getting into any technical or legal arguments, It's not possible to contract out of the CCRs.

Notwithstanding the fact that there is no specific provision that says traders are prohibited from contracting out the rights are automatically implied into consumer contracts except for any contracts that are not protected under the CCRs. This is further reinforced by the fact that each "Part" of the CCRs has an initial subsection called "Application of Part X" explaining which contracts those parts of the CCRs apply to. Finally, Parliament reigns supreme so statutory law > contract terms. 

If Parliament had intended to allow traders to contract out, then it would have explicitly said so, just like it did in the Sale of Goods Act 1979. In the absence of that and in light of the fact the legislation's primary focus is consumer protection, it would be absurd to suggest a trader is able to contract out of the CCRs as it would effectively render it a useless piece of legislation since every trader would contract out…

… Even if it was an exempt contract, there may be an argument for a return/refund under the Consumer Protection From Unfair Trading Regulations/Digital Marks, Competition and Consumers Act 2024 for unfair commercial practices. "

Here: Mystery boxes — MoneySavingExpert Forum

Okell

https://forums.moneysavingexpert.com/discussion/comment/82041870#Comment_82041870

That's a fair point - if it is a reservation fee.

Perhaps the OP can clarify what the description of the £250 payment he made was.

But as I understand the OP he phoned the dealer to buy the bike, delivery was arranged, and a deposit of £250 was paid.

That sounds to me like a contract to buy was formed over the phone, and a deposit on the purchase price rather than a reservation fee was paid.

but perhaps the OP can clarify.

Reservation fee or deposit, the trader cannot charge an additional £250 "cancellation fee"

Grumpy_chap

That sounds to me like a contract to buy was formed over the phone, and a deposit on the purchase price rather than a reservation fee was paid.

I agree, that is what the OP most likely seems to have described.

I was merely sharing the alternative as a point of information / awareness for the OP, and for them to check carefully exactly what might be said in the paperwork in that regard.

Okell

It is a valid point. I'd overlooked it