Right to cancel order of new caravan

[ProfJohnL]

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We have differing opinions, but I firmly believe the use of deposits in this way is indefensible.

Our opinions may differ regarding the OP's situation, but I too also disapprove of a deposit being used in this way.

I would much prefer to see such contracts include a defined cost of cancellation as a separate entity preferably as a fixed value, or at a push as a percentage of the value of the goods.

 

[Dustydog]

The Dealers Ts&Cs seem very clear regarding cancelling within 60 days ,deposit is retained. The rest is well documented . Does the contract say you have to also complete the contract or just lose the deposit?
Deposits are of course primarily there to protect the purchaser from losing the new caravan purchase, ie gazumping etc.
I wonder if there is any evidence the Dealer has already discretely tried to offer the new caravan for sale either to the public or trade?
Reading all the CRA and Which stuff my view is the OP is legally contractually bound.
The best resolution maybe an approach to the original dealer and ask what chance they have of selling it day one. I wonder how an opposition Dealer would react to the opportunity😉.
I’ll duck the shots now but Dealers aren’t always the bad boy in these situations.

 

[Raywood]

As part of my work on professional Indemnity Claims I did get an expert opinion on deposits, although for a completely different type of purchase, but the principles should apply. The basis of this was that the deposit is a sign of goodwill by the purchaser and should be for a sum they can afford to lose in the event of them failing to complete the contract, but always subject to any further terms and conditions in any contract. In simple terms if you break the contract then you lose the deposit.
Looking at the terms as you describe them on the first point it may not have been built yet but the dealer has ordered it and is presumably committed to this so cancelation by the dealer may not be that straightforward. having said that he can still sell it so you can argue there is no loss although he can counter he now has to put it back up for sale and negotiate a new deal which might cost him an additional sum in doing this. At this stage the costs involved cannot possibly be ascertained until the caravan is sold but on the basis of the opinion there is no right to recover the deposit.
With regard to the second point I would want to see the exact wording before commenting further on that as it could go either way. The fact that the build will not have not started is possibly not relevant as the firm involved will have a build schedule and may be committed to the build with parts ordered.
You may want to contact the credit card company though to see what they have to say.

 

[Buckman]

As part of my work on professional Indemnity Claims I did get an expert opinion on deposits, although for a completely different type of purchase, but the principles should apply. The basis of this was that the deposit is a sign of goodwill by the purchaser and should be for a sum they can afford to lose in the event of them failing to complete the contract, but always subject to any further terms and conditions in any contract. In simple terms if you break the contract then you lose the deposit.
Looking at the terms as you describe them on the first point it may not have been built yet but the dealer has ordered it and is presumably committed to this so cancelation by the dealer may not be that straightforward. having said that he can still sell it so you can argue there is no loss although he can counter he now has to put it back up for sale and negotiate a new deal which might cost him an additional sum in doing this. At this stage the costs involved cannot possibly be ascertained until the caravan is sold but on the basis of the opinion there is no right to recover the deposit.
With regard to the second point I would want to see the exact wording before commenting further on that as it could go either way. The fact that the build will not have not started is possibly not relevant as the firm involved will have a build schedule and may be committed to the build with parts ordered.
You may want to contact the credit card company though to see what they have to say.

Was the expert opinion on a business or consumer contract as Which seem to think otherwise?

 

[mcphillips16]

 

[mcphillips16]

This is the exact terms and conditions wording. I have removed the name of the caravan dealer as a matter of courtesy.

 

[mcphillips16]

Another point I should add is that we placed the order prior to the price increase. The price of the caravan that we ordered was £23,965. As a result of the price hike, the same caravan is being advertised for £25,595. If the dealer were to sell the caravan we ordered to someone else, they would be up £1630, not including the £1000 deposit of mine.

 

[ProfJohnL]

The full wording is quite interesting.

Firstly clause 8 is the primary reason the dealer is retaining the deposit.

But there is a twist latter on in clause 18, It is not clear from the wording if clause 18 is in addition to clause 8 or whether is should supersede clause 8.

If it supersedes 8 and the caravan is not collected, after 28 days the dealer can resell the caravan, and recover any losses from the defaulting purchaser.

My thoughts are the dealers losses might include some administrations costs, and 28 days of cumulative storage charges, which combined might be less than the deposit.

I would add that apart from the slight ambiguity caused by the clauses 8 an 18, the rest of the t&C's are well written and easy to understand - good plain English.

 

[Dustydog]

View attachment 3051

Oh dear!
Items 8 , 16, 17 and 18 cogently set out your side of the financial agreement in plain simple Queen’s English.
I now see it is actually worse than you originally told us. Item 17 makes you liable to pay 50% of the RRP if you fail to complete. You have to appreciate the Dealers position. They too have contracted to buy a caravan from a manufacturer and have probably paid a deposit too. Company cash flows are critical. I suspect the Dealer will have to settle the manufacturers full invoice very soon after delivery.
I believe you will have to take this one on the chin . Your best bet is to talk it through with the Dealer and see if they can find a new buyer asap. You may still have to forfeit your deposit but that has to be better than lose 50% of the RRP.
Visit the Dealer, make sure you are talking to the Organ Grinder, be humble and honest and see if they will help. Failing that, you will be mad not to take the caravan and try and sell it on? Sorry this isn’t the answer you are looking for.

 

[mcphillips16]

The full wording is quite interesting.

Firstly clause 8 is the primary reason the dealer is retaining the deposit.

But there is a twist latter on in clause 18, It is not clear from the wording if clause 18 is in addition to clause 8 or whether is should supersede clause 8.

If it supersedes 8 and the caravan is not collected, after 28 days the dealer can resell the caravan, and recover any losses from the defaulting purchaser.

My thoughts are the dealers losses might include some administrations costs, and 28 days of cumulative storage charges, which combined might be less than the deposit.

I would add that apart from the slight ambiguity caused by the clauses 8 an 18, the rest of the t&C's are well written and easy to understand - good plain English.

I did ask for clarification on point 18 but this was ignored. I also asked for a breakdown of any admin costs that they have as a result of the cancellation but again, these details were refused. Whilst I would love to get the full deposit back, I am fair and would be happy to deduct any admin fees from the £1000. Unfortunately, the dealers are being unhelpful!

 

[mcphillips16]

Oh dear!
Items 8 , 16, 17 and 18 cogently set out your side of the financial agreement in plain simple Queen’s English.
I now see it is actually worse than you originally told us. Item 17 makes you liable to pay 50% of the RRP if you fail to complete. You have to appreciate the Dealers position. They too have contracted to buy a caravan from a manufacturer and have probably paid a deposit too. Company cash flows are critical. I suspect the Dealer will have to settle the manufacturers full invoice very soon after delivery.
I believe you will have to take this one on the chin . Your best bet is to talk it through with the Dealer and see if they can find a new buyer asap. You may still have to forfeit your deposit but that has to be better than lose 50% of the RRP.
Visit the Dealer, make sure you are talking to the Organ Grinder, be humble and honest and see if they will help. Failing that, you will be mad not to take the caravan and try and sell it on? Sorry this isn’t the answer you are looking for.

I feel that you may have misread the original post.
The caravan we ordered is not due for delivery until June/July but we have not actually been given an exact date. As cancellation was done on 29th March, this is well outside the final 60 days so we are NOT obliged to pay 50% of the RRP of the caravan.
As we do not fit point 17, point 18 is also not relevant to our situation.
Point 16 is not applicable to us either as there is no finance agreement in place.

 

[Buckman]

I feel that you may have misread the original post.
The caravan we ordered is not due for delivery until June/July but we have not actually been given an exact date. As cancellation was done on 29th March, this is well outside the final 60 days so we are NOT obliged to pay 50% of the RRP of the caravan.
As we do not fit point 17, point 18 is also not relevant to our situation.
Point 16 is not applicable to us either as there is no finance agreement in place.

Legislation over rides any unfair T&Cs. The Consumer Rights Act 2015 states that a "notice is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations to the detriment of the consumer", i.e. terms that require you to pay a disproportionately high payment in compensation if you do not go ahead with a contract.

We are all armchair lawyers so suggest you contact Which Legal Services on Monday and have a chat with them before going to an expensive solicitor.

 

[otherclive]

I’m not sure that accepting delivery and then trying to sell it on is a particularly good idea to save forfeiting a £1000 deposit. Just consider the additional costs and hassle you may bare. Private buyers in that price range may much prefer to buy from a dealer with the “ protections” that gives. June/July most will have made arrangements for summer holidays and with the rides in cost of living may be reluctant to commit to such a major purchase.

Best to see if you can reach an agreement with the dealership.See what Which may recommend. But at the end of the day you may just have to reconcile the loss of deposit. Disappointing though it would be.

 

[Dustydog]

Point taken..
I wrote this on a dose of morphine, more fool me😵‍💫.

I still think a visit to the Dealer asap is the best way forward. Make sure you are talking to the Organ Grinder, be humble and honest and see if they will help. Failing that, you will be mad to take the caravan and try and sell it on? No one in their right mind will spend thousands without the protection of a Dealer back up etc.
Are you abandoning caravanning per se or just this particular model? It maybe that the Dealer may allow you a part refund in kind ie accessories. Or a wild card , a deferred amount for a future new purchase🙀🙀.Sorry this isn’t the answer you are looking for. Sadly it is less painful to bite the bullet and move on. BTW, was a px involved?

 

[ProfJohnL]

I did ask for clarification on point 18 but this was ignored. I also asked for a breakdown of any admin costs that they have as a result of the cancellation but again, these details were refused. Whilst I would love to get the full deposit back, I am fair and would be happy to deduct any admin fees from the £1000. Unfortunately, the dealers are being unhelpful!

I'm sorry Mcphillips, I do understand how this situation must be very upsetting, and no one likes to be out of pocket, especially under the circumstances you have alluded to in your life.

It may feel like the dealer is not being "helpful", but the reality is the dealer appears to be following the terms and conditions of the your contract precisely and unless the contact can be declared unfair, then I expect nothing will change. When you signed the contract you assert your agreement to it. By cancelling the contract you have defaulted and the relevant clauses have been applied.

I am certain the dealer's company will have had lawyers draw up the form of contract. and it's unlikely to be legally "unfair". consequently I seriously doubt it's worth spending money trying to challenge it.

However, despite the Citizens Advice Bureau's response, other contributors have suggested seeking advice from the Consumer Association (Who publish Which? magazine), Without doubt they do have a high level of expertise about retail law. You might also find some sage advice or pointers from Martin Lewis's "The money saving expert".

Don't go loosing a lot of money in legal fees unless a professional solicitor advises you have a solid case.

I wish you luck.

 

[Raywood]

Condition 8 is very clear and unambiguous in its wording and there is nothing in there that I can see that you could challenge. I am sorry but you breached the contract conditions and as I see it even without the contract term there is no basis to pursue the dealer. As I say expert advice I received from a prominent solicitor on deposits would suggest you have no legal right to recover.
Condition 17 refers to the period of sixty days before the delivery date and is irrelevant as you never reached that point. That provides for further payments which look excessive, and I doubt are enforceable, but that is another question. Given that the caravan should be capable of being sold at the going rate in most instances, half the MRP is clearly far far more than they are likely to suffer and would not be upheld by a court unless the caravan you ordered was a special build and not easily sold on and produced a loss. A small loss, say due to this having to go into an end of season sale might be recoverable though but the dealer would have to show this occurred and f a part exchange was involved could get very complicated.

 

[Jcloughie]

Condition 8 is very clear and unambiguous in its wording and there is nothing in there that I can see that you could challenge. I am sorry but you breached the contract conditions and as I see it even without the contract term there is no basis to pursue the dealer. As I say expert advice I received from a prominent solicitor on deposits would suggest you have no legal right to recover.
Condition 17 refers to the period of sixty days before the delivery date and is irrelevant as you never reached that point. That provides for further payments which look excessive, and I doubt are enforceable, but that is another question. Given that the caravan should be capable of being sold at the going rate in most instances, half the MRP is clearly far far more than they are likely to suffer and would not be upheld by a court unless the caravan you ordered was a special build and not easily sold on and produced a loss. A small loss, say due to this having to go into an end of season sale might be recoverable though but the dealer would have to show this occurred and f a part exchange was involved could get very complicated.

Nice clear unambiguous english. But not legal imo for reasons previously provided.

Another point I should add is that we placed the order prior to the price increase. The price of the caravan that we ordered was £23,965. As a result of the price hike, the same caravan is being advertised for £25,595. If the dealer were to sell the caravan we ordered to someone else, they would be up £1630, not including the £1000 deposit of mine.

My inner cynic says to me your dealer wants his cake and also wants to eat it. He stands to gain a further £2630 for minimum admin work.

I do not think they are approaching this illogically. If they put a report together to explain their costs to date, that is what you would be liable for. The may even get that to the £1000 with clever accountancy. Then you would have no come back imo.

But no, they appear to be being intransigent. I see them rubbing their hands together hoping you pull out so they can capitalise.

In your dealers favour. they do seem to be honouring a fixed agreed price. Others on the forum are experiencing price rises.

The law simply does not want either party to profit from withdrawing. Nor does it want them to lose out.


John

 

[Dustydog]

I am afraid John we have done this one to death. The Prof has started a new thread on the same subject which is an excellent overview. Like it or not the OP signed.The general consensus is he will have to comply . Or spend a lot of money with no guarantee of success.
We must recognise Dealers are not all bad and are just as deserving of Contracts that equally protect their position. If ”all “ such contracts were flawed no one would would sign or buy a caravan😜

 

[Jcloughie]

I am afraid John we have done this one to death. The Prof has started a new thread on the same subject which is an excellent overview. Like it or not the OP signed.The general consensus is he will have to comply . Or spend a lot of money with no guarantee of success.
We must recognise Dealers are not all bad and are just as deserving of Contracts that equally protect their position. If ”all “ such contracts were flawed no one would would sign or buy a caravan😜

You need to read this. It makes the situation, in law, very very clear. Personally I will not lie down and take it but stand up for my rights. Simple. But yes, it has been done to death. People have ingrained beliefs. but the law is the law.

John

 

[Dustydog]

You need to read this. It makes the situation, in law, very very clear. Personally I will not lie down and take it but stand up for my rights. Simple. But yes, it has been done to death. People have ingrained beliefs. but the law is the law.

John

Thanks John. Do you feel the CMA goes beyond the CRA?
I am never one to discount a solution no matter what. How do you think the OP can prove his contract is unfair? I’ve re read all the pearls of wisdom and can’t see the solution the OP wants. If it is there then any help is most welcome

 

[Parksy]

This thread reflects the polarity of opinion that is normal for this forum.
Unless and until the theories regarding the unfairness or fairness of this dealerships T&Cs, that the deposit payer agreed to when he signed the agreement, are tested in court, none of us can know the end result.
There is a separate thread on the message boards that deals with the advisability of signing an agreement which one may contend is unfair at a later stage due to unforeseen circumstances.
I'm not locking this thread, but I suggest that further discussion on the legality of contracts or agreements takes place on the other similar thread until the result of this dispute becomes known.

 

[Hutch]

Yes Thanks Parksy, let us, the forum Members not rub salt into Mc P's wounds. He /she will hopefully get it sorted out. Hopefully without too much financial distress.

 

[otherclive]

You need to read this. It makes the situation, in law, very very clear. Personally I will not lie down and take it but stand up for my rights. Simple. But yes, it has been done to death. People have ingrained beliefs. but the law is the law.

John

It’s an interesting read but it is certainly not the law. It is guidance provided by the CMA which basically refers the reader to the CAB. It sets out a series of over arching principles but they can in no way be considered the law.

 

[Notmyvan]

In 2017 we used CAB regarding rejecting a 11 month old caravan. Their advice was completely incorrect and if we had followed their advice we would have been several thousand pounds out of pocket. The CAMC also gave us the incorrect advice. However on a previous occasion CAB gave us good advice.

We never used CAB, but contacted "Which Legal Services" and using the appropriate legislation we got a full refund plus compensation even though we had to approach FOS. It cost us at the time about £90 for the year for as much legal advice as required.

CAB is good but depends on who is handling the case and their knowledge of the relevant legislation.

I also pay Which Magazine for their Legal Services, I was a bit disappointed a couple of years ago when I realised that they only give out advice, they dont actually do anything for you. You have to do it your self although they are useful at advising what course of action to take.
In your case I would try and see if there is anything different with the specification of what you ordered and what you were going to get. Or did they "verbally" give you a delivery day (before you signed the contract) which has since changed.
And as there is supposed to be a shortage of new caravans (although as I look for a caravan the dealers all seem to have brand new caravans in stock "un sold" You could advertise the caravan your self and try and find a buyer and list the dealer that will have it for sale.

There must be many people at the moment who have had a change in circumstances and are unable to buy an expensive item. Good Luck.

 

[Buckman]

I also pay Which Magazine for their Legal Services, I was a bit disappointed a couple of years ago when I realised that they only give out advice, they dont actually do anything for you. You have to do it your self although they are useful at advising what course of action to take.
In your case I would try and see if there is anything different with the specification of what you ordered and what you were going to get. Or did they "verbally" give you a delivery day (before you signed the contract) which has since changed.
And as there is supposed to be a shortage of new caravans (although as I look for a caravan the dealers all seem to have brand new caravans in stock "un sold" You could advertise the caravan your self and try and find a buyer and list the dealer that will have it for sale.

There must be many people at the moment who have had a change in circumstances and are unable to buy an expensive item. Good Luck.

Just to clear it up I am not the one with the deposit issue. Which Legal Services give you the correct advice and what legislation would apply. For £90 a year we would not expect them to represent ourselves in a court of law.
Using the correct legislation available for the circumstances does not give the supplier any room to manoeuvre as they cannot argue against legislation.