Distance Selling Query

A_Geordie

It the dealer thinks that common law overrides statute, then let think think what he wants and crack on with a claim against the dealer and the credit card provider. It's an easy win.

https://forums.moneysavingexpert.com/discussion/comment/82041883#Comment_82041883

I should add that the previous distance selling regulations (The Consumer Protection (Distance Selling) Regulations 2000) did actually have a no contracting out regulation under reg.25 but that never got transferred over to the 2014 version.

Still, what I said in the previous thread holds true. Also the well known case of Thornton v Shoe Lane Parking is authority that terms introduced after the fact are not incorporated without the consent of the other party - silence is not taken as consent either.

BACKTOBACK

https://forums.moneysavingexpert.com/discussion/comment/82041888#Comment_82041888

I am confused regarding deposit and reservation fee? As far as i understood it was a deposit on the bike to be delivered a couple of weeks later. I don't know the legal difference of a reservation fee? Either way the final invoice issued by the dealer does say cancellation fee £250. I have to wait a few more days before the credit card company will step in. I will come back and name the dealer a bit later. But i don't want to give him advice on how to get out of it in any way.

I have copied the exact wording that is on the invoice that was emailed to me after paying the deposit. It looks as though its a standard invoice for someone that is inside the store?

Wording from the invoice……

I, the undersigned, agree to purchase from the company above, the above vehicle at the price stated & I
certify before I sign this declaration that my attention has been drawn to the age & condition of the
vehicle. I confirm that I have examined the vehicle before signing so as to satisfy myself of its quality.
I also accept the recorded mileage on the odometer cannot be relied as indicating the actual mileage of
the vehicle.
Nothing herein contained is intended to affect, nor will it affect a consumer's statutory rights under the
Sale of Goods Act 1979 or any amendment thereof.
Deposits on cancelled purchases are non refundable.

Alderbank

That document is important because you signed to say, 'I confirm that I have examined the vehicle before signing…'

That means it is not a distance sale because the crucial factor of a distance sale is that you did not examine the vehicle before parting with any of your hard earned.

I think you need to resolve that issue with the seller before you can proceed with your claim.

BACKTOBACK

https://forums.moneysavingexpert.com/discussion/comment/82042746#Comment_82042746

At no time did i enter the dealership. Its a four hour drive from my home. This document is unsigned by me. It was just emailed to me after the phone call

Okell

@BACKTOBACK - a few points

1 if this is a distance sale - and everything points towards it being one - then you are legally entitled to withdraw your offer to purchase or to cancel the purchase up to 14 days after delivery, provided you tell the trader you are cancelling the contract. You say you have done this.

If that is so then the trader must pay you a full refund of any monies paid and he is not allowed to charge you a cancellation fee. Full stop.

2 if the trader tries to argue that his "deposits are non-refundable" term in his post-payment invoice overrides The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 requirement that he returns all monies paid by you, then in my opinion he is wrong. That also seems to be the opinion of @A_Geordie above, and I'm reasonably confident that he or she knows what they are talking about.

3 the trader certainly can't charge you a cancellation fee

4 Even if it was possible for a trader to exclude their liability under the Regulations to pay a full refund (and it isn't possible - but even if it were) the trader can't introduce a new condition to the purchase after you've already agreed to buy and after you've already paid a deposit if they didn't notify you of the condition before you agreed to buy.

I understand you don't want to identify the dealer and that's your choice, but it would be helpful for us to see their T&Cs.

Can you tell us what, if anything, their T&Cs say regarding (1) when a contract is formed; (2) your cancellation rights in general; (3) your cancellation rights under The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013; and (4) payment of a deposit.

Unless their T&Cs mention a reservation fee, and unless you were told your payment was a fee to "reserve" the 'bike while you decided whether or not to buy it, I think you can ignore the reservation fee aspect.

One last question - the seller is a business trader and not a private seller?

Grumpy_chap

I am confused regarding deposit and reservation fee? As far as i understood it was a deposit on the bike to be delivered a couple of weeks later. I don't know the legal difference of a reservation fee?

From what you have said, taking the thread as a whole, I don't think the "reservation fee" is relevant but I will try to explain for information.

A contract requires offer and acceptance. A contract also requires that both parties receive "consideration" (something back). In an everyday setting, you offer to buy a tin of beans for 50 pence. The seller receives "consideration" (50 pence) and the buyer receives "consideration" (tin of beans).

Option 1 is an individual sees a motorbike advertised at £5k and pays £250 deposit for the motorbike. There is an immediate obligation for the purchaser to buy the motorbike for the total agreed £5k. That is offer and acceptance and has consideration for both parties £5k for the seller, motorbike for the buyer. The £250 is very simply the first payment and when the motorbike is collected the balance (£4,750) is paid by the buyer to the seller.

Option 2 is an individual sees a motorbike advertised at £5k and says they won't commit to buy the motorbike until they have seen it which can't be arranged for 2 weeks. The purchaser pays £250 "reservation fee" for the seller to take the bike off sale and keep it safe until the purchaser can see the bike in 2 weeks' time. There is no obligation for the buyer to actually buy the bike when they do see it. The first contract has been simply to "reserve" the bike and has offer, acceptance and consideration (seller gets £250, buyer gets the time to see the bike). If the buyer sees the bike and decides to buy, then a second contract is formed for the bike at £5k - again, offer, acceptance, consideration. (There can be a complexity around this if the reservation fee is truly that but the seller agrees to reduce the price of the bike if the bike is subsequently purchased.)

Hope that helps.

BACKTOBACK

Thank you. To confirm it is a business. A trading Motorcycle dealer. The deposit was paid with an agreed date for the final payment and also a delivery date agreed.

Given the very helpful advice from everyone above for which i am grateful i am confident the credit card company should step in and refund the 'deposit'

Thank you everyone for the clarification

Grumpy_chap

Be aware that the CC might, at first, process a Chargeback. This is the CC equivalent of stopping the cheque. The trader might contest via the CC method or might not but could still pursue debt recovery.

I assume the value of the motorbike is within the limits for S75. This is a more challenging process but it holds the CC jointly and severally liable with the dealer. You will need to demonstrate that there has been a breach of contract or a breach of statutory rights. The CC may require evidence that this was a remote purchase, allowing you the right to cancel, as opposed to the traders invoice which seems to apply to an in-person purchase.

born_again

https://forums.moneysavingexpert.com/discussion/comment/82042857#Comment_82042857

CC will try a chargeback, which dealer can reject on the basis they have already used.

TBH, this is where distance selling regs fall short, in protecting retailers. Where expensive items, that will have to be ordered by a retailer. Which in cases like this can leave them with a expensive product that would not have bought normally.

Okell

https://forums.moneysavingexpert.com/discussion/comment/82042867#Comment_82042867

@BACKTOBACK - note what Grumpy says.

Your CC will almost certainly process a chargeback first.

If the CC co find in your favour it is open to the trader to challenge it and it might be reversed

If the chargeback is reversed, or if the CC co don't find in your favour in the first place, you will need to go back to your card provider and tell them you want them to process a s75 claim.

We know… it's a pain…

Might be worth checking with your card provider if it's a chargeback or a s75 they are doing for you…