Brian Kirby Posted November 17, 2012 Share Posted November 17, 2012 ..................A few points of law to understand here: AIUI, whilst in the absence of any words to the contrary the delivery date might be interpreted as firm, rather than an estimate, in the specific absence of a "time is of the essence" clause, failure to meet that date is not necessarily going to be a breach, and ultimately the courts would have to decide on the contractual effects of any delay. IMO, a delay of 5 weeks on an order placed 9 months before is very unlikely to be considered a breach, particularly if the manufacturer can demonstrate the reason it has pleaded in this case. Also, AIUI, in English law force majeure is only taken into account if the contract has clauses that specifically mention it. (i.e. it is not in play by default in English contract law). Effectively, the common practice of putting force majeure clauses in a contract allows the parties to pre-agree on the position if certain "unmanageable" circumstances arise, thereby negating the need to go to the courts for a decision on how they should be treated. Yes Robin but, the principle is implied in your first paragraph. The reason for the delay was non-availability of the critical element of the motorhome: the base vehicle. That non-availability left the contractor effectively powerless to deliver. What I was arguing is that, within the context of this contract, constitutes force majeure. That is to say it is not a breach, it merely re-sets the delivery date to a time when completion is physically possible. That in effect, under those circumstances, the delay risk becomes the employer's, and not the contractor's. I have always known that as force majeure - though I'll confess I have always worked with contracts that include the term. Link to comment Share on other sites More sharing options...
Guest Peter James Posted November 17, 2012 Share Posted November 17, 2012 colin - 2012-11-16 7:34 PM Peter James - 2012-11-16 10:42 AM I am receiving emails saying I have received private messages titled 'Hutchby contract' But I cannot see them in my inbox, so I am none the wiser. To whoever is sending them - why can't you post this contract on here as you have been asked to do many times? Given the amount of information that has already been posted I see no reason why this contract can only be seen in a private message? Don't try and get it throu PM, in my experiance it won't work, click on 'problem murvi's email link button and then you will be able to send an email and he will be able to send in return. Thanks, but that doesn't seem to work for me either :$ I don't understand why this contract can only be sent in a private message and not posted on here. (?) Names could be redacted, but even that seems unnecessary as they have already been posted on here. Link to comment Share on other sites More sharing options...
Robinhood Posted November 17, 2012 Share Posted November 17, 2012 Brian, .....the point I was trying to make was that, unless the contract specifies dates where "time is of the essence", making it an express condition, failure to meet those dates is not necessarily a breach of contract (and the absence of the words is taken in law to indicate that time is NOT of the essence). In such circumstances, failure to deliver exactly to date will not automatically cause a breach, and the courts may be required to make a decision on such, and/or any remedy. This principle doesn't depend on "force majeure". If time is not of the essence, whilst "force majeure type" events may be looked on more leniently by the courts, delays for other reasons, particularly, if the resulting delay is short, will also not be considered to be in breach. To quote: In English law, if the delivery date is not a condition, it is likely to be construed as an “innominate term”. This means that the consumer may terminate the contract if the delay is so prolonged that it deprives them of substantially the whole benefit they sought from the contract. If a date IS qualified with "time is of the essence", failure to meet it will be considered a breach. This might be overridden by "force majeure" considerations, if the delay is caused by an event thus classified, but only if an inserted clause allows, say, a maximum delay of "x" in such circumstances. Clearly, it would be up to the supplier to demonstrate the cause of such delay. I know your background is construction, and because of the fairly high prevalance of "force majeure type" events, it is indeed very common to see "force majeure" clauses in such contracts, such that the parties have a pre-arranged course of action if they occur without having to further resort to legal process. If, however, those clauses are/were not contained in the contract, then "force majeure" would not be at play (and any contract relying on it should specifically define what constitutes "force majeure" as it has no definition in English law). To quote: Force majeure The concept of “force majeure” (acts or events beyond a party’s reasonable control excusing what would otherwise amount to a breach of contract) is not one which applies automatically under English law. A party affected by such a circumstance will only be excused if there is an appropriate provision in the contract to that effect. (there are various write up of "force majeure" on the web - the following sets out in fairly practical terms some of the implications, and implementation of the same http://www.shoosmiths.co.uk/client-resources/legal-updates/Force-majeure-clauses-Traps-for-the-unwary-1272.aspx ) Hence, in the case under consideration, "force majeure" is of no interest (unless, contrary to perception, any agreement had "force majeure" clauses); what is at play is the treatment of a missed date, where the contract does not define that date as being "of the essence". (and, IMO, the delay is not so great as to comprise a breach). In these circumstances, there is no right to terminate - the remedy is to claim damages for any late delivery, but the contract must complete. In reality, claiming damages in this circumstance would have been a protracted, and likely painful exercise. If the appropriate legal advice had been taken, I'm pretty sure the result would have been advice to (amicably, and not through the courts) seek reasonable compensation for the lack of availability over the summer period (and as the manufacturer holds small stocks of used 'vans this might have resulted in a loan vehicle). Unfortunately, and for whatever reason, (and on whoever's advice) there appears to have been little attempt at communication before taking the "nuclear option" of cancellation, accompanied by a court case to reclaim the deposit (something which, IMO, was never going to be successful, unless any judge could be convinced that a £50K motorcaravan was being bought only for use during the 5 weeks in which it was not available due to the delay :-S ) Link to comment Share on other sites More sharing options...
crinklystarfish Posted November 17, 2012 Share Posted November 17, 2012 A few observations: 1, people keep banging on about having seen 'the' contract. It seems from the cloak-and-dagger carry on that all they have actually seen is an order form. That order form is surely bound by Murvi's trading agreements / Ts&Cs / call them what you will. The actual 'contract' comprising the order form and its binding terms is therefore either unavailable to the OP, or he has it and realises he's stuffed - so won't make it available. 2, The OP on the original 'slur' thread that was pulled has posted on this thread 3 times at the moment and his total post count is only 3. This suggests to me Warners banned him under his initial pseudonym and he's re-created himself to continue his crusade. Bad form! 3, If anyone should make the old dear whole, morally it's her son. It would seem his bad advice led to the 'nuclear' option and therefore precipitated her stress and loss. 4, If the old dear had been a 35 year old painter and decorator called Bill who liked a drink and bullied his wife would anyone give a stuff that Murvi had exercised their legal rights? Link to comment Share on other sites More sharing options...
Rayjsj Posted November 17, 2012 Share Posted November 17, 2012 malc d - 2012-11-16 12:21 PM jhorsf - 2012-11-16 1:25 AM I suspect a certain company has had a very expensive couple of grand and would have been better off to have returned the money than all the negative press they have had over it You may well be right - but, on the other hand, some might argue that Murvi have come out of it quite well. Not in my book, a £5000 deposit on a panel van. I'm suprised they get any customers at all. Link to comment Share on other sites More sharing options...
Brian Kirby Posted November 17, 2012 Share Posted November 17, 2012 I broadly agree with Robin and Crinkles. We have not seen the contract, and even if I had, I am not a lawyer - and I can no longer find my law of contract notes! :-) I accept that there is considerable doubt over whether the time element could be construed as of the essence (I agree with Robin, based on what has been said, and what I've seen, that it was probably not), and I'll accept (though with some surprise) there may be no specific provision for force majeure, however couched. I don't think the outcome, had this gone to court, is completely predictable (few contract law cases are wholly predictable), and I don't know how consumer legislation might change commercial contract concepts. However, all that being said, it still seems to me to leave us where we were, which is with an apparent summary repudiation by one party, without proper grounds, which placed them in breach. That breach seems to me to have left the contractor entitled to sue for their loss of profit plus their costs. That they instead settled for a part refund of the contractually non-refundable deposit, settling instead for a contribution toward their costs, seems to me entirely reasonable. There is no element of duress with these contracts, the purchase is entirely voluntary, as is acceptance of the terms. Adults of sound mind are supposed to take that much into account when entering into contracts. Ultimately, it seems, in this case the "emptor" simply lacked the necessary "caveat". Link to comment Share on other sites More sharing options...
flicka Posted November 17, 2012 Share Posted November 17, 2012 In a contract with only the MONTH for delivery specified, there would be no option in law to apply "Time is of the essence". By it's very wording, it only implies an estimated delivery point. However if a specific date i.e 15th July (Year) had been specified there would be an implied "time is of the essence" clause within the Contract. Link to comment Share on other sites More sharing options...
Guest peter Posted November 17, 2012 Share Posted November 17, 2012 Brian Kirby - 2012-11-16 7:03 PM One thing that seems to have been overlooked, is the nature of a deposit. It is, in effect, a part payment under the contract for what is ordered. It is taken to ensure, on the part of the seller, that the buyer has a serious intent of buying. It gives the seller the confidence to commit materials and resources to making what the buyer wants. As pointed out elsewhere, it is of no significance insofar as the contract is concerned, the words alone establish the existence of the contract. In effect, it provides the contractor with limited protection against loss. There are no stage payments as the build progresses, only a final payment on completion. There is obvious risk to the contractor with this arrangement, as there is risk to the buyer. Where goods are "on the shelf", and require only preparation before delivery, there is no necessity to take or give a deposit (though a nominal sum is frequently requested). Where the realisation of the goods first requires the seller to make substantial payments himself, meaning he would be seriously out of pocket were the buyer to renege, an initial payment is not uncommon. There is a very wide range of variants on the Ducato that can be added as options: these are not cars, they are very basic commercial vehicles with very basic specifications in standard form. No converter could possibly stock vans in all colours, with all combinations of options available for each colour, he would need to hold thousands of vehicles to do so. In this case the converter offers a bespoke service allowing his customer to specify the van he wants, and the conversion he wants, in considerable detail. It is the difference between buying a house from a developer, and buying a plot of land and employing an architect to design the house, and a builder to construct it. One way you get what is available, the other you get what you want, but it carries higher risks and costs more. To some this is mad, to others it is what they prefer. It may be that the seller's right to retain the whole of the deposit if the buyer reneged could be legally challenged. But, that would also be a risk for the buyer. On the one hand, if the contractor disposed of the goods at a good price and at minimal cost to himself, he could possibly be obliged to return the balance to the buyer, as eventually happened in this case. On the other hand, if the seller incurred substantial costs in disposing of the van, and had to sell at a sharply reduced price, I think he would be legally entitled to additional payment from the buyer, to cover his losses. He might also be entitled to claim his court costs. The problem, in the particular case, is that the buyer clearly did not understand which kind of product (the bespoke variety) she was buying, the irrevocable commitment she was entering into, the implicit risks to her, or the disciplines the contract imposed. Why this was not appreciated, only she can know. It may be that even now she still does not fully grasp what she did, or why it was the wrong way to go. Both parties believe they were acting reasonably, but clearly one was not. That is the classic dispute. To settle such disputes, ultimately, is why we have courts. In the end, after the shouting, common sense prevailed, and the matter was more or less amicably settled. I think the settlement fair, though the buyer, and some others, clearly still do not. I think it fair because, once the buyer has signed the contract, the contractor is entitled to anticipate the whole of his profit on the deal. If the seller breaches, he is also entitled to claim his costs, including the cost of his time in dealing with the consequences of the breach. Does anyone seriously believe the contractor's expected profit, plus his actual costs in dealing with the breach, would have been less than £2,000? Really?This is getting >>> Link to comment Share on other sites More sharing options...
Robinhood Posted November 18, 2012 Share Posted November 18, 2012 flicka - 2012-11-17 10:53 PM In a contract with only the MONTH for delivery specified, there would be no option in law to apply "Time is of the essence". By it's very wording, it only implies an estimated delivery point. However if a specific date i.e 15th July (Year) had been specified there would be an implied "time is of the essence" clause within the Contract. ........at the risk of being boring.......... :-S Whilst it certainly is possible to imply "time is of the essence" in a contract one would need significant evidence (from wording elsewhere in the contract, or the nature of the actual delivery) to do so. Simply having a day, rather than a month, defined for delivery would not be likely in itself to constitute such evidence. To Quote: ....it is clear that in order for time to be of the essence it is best to include in any contract express wording to such effect. To imply that time is of the essence will require sufficient wording in a contract to suggest that that was the intention of the parties and the obligation needs to go to the heart of the contract. The failure to comply with the obligation needs to result in either a substantial loss to one party or to deprive it of substantially the whole of the benefit of the contract. lf it is held that time is of the essence in respect of a contractual obligation and a party fails to comply the remedy is repudiation of the contract and a claim for damages. With this in mind parties are well advised to consider carefully before agreeing that time will be of the essence in relation to any term of a contract. Link to comment Share on other sites More sharing options...
malc d Posted November 18, 2012 Share Posted November 18, 2012 Rayjsj - 2012-11-17 2:05 PM malc d - 2012-11-16 12:21 PM jhorsf - 2012-11-16 1:25 AM I suspect a certain company has had a very expensive couple of grand and would have been better off to have returned the money than all the negative press they have had over it You may well be right - but, on the other hand, some might argue that Murvi have come out of it quite well. Not in my book, a £5000 deposit on a panel van. I'm suprised they get any customers at all. Surprised you may be, but they do, and many are returning customers. A " £5000 deposit on a panel van " does sound a lot ( and it IS a lot ) - but a £5000 deposit on a good quality 'second home' doesn't sound quite so bad. As always - it's all down to personal choice. ;-) Link to comment Share on other sites More sharing options...
Brian Kirby Posted November 18, 2012 Share Posted November 18, 2012 flicka - 2012-11-17 10:53 PM In a contract with only the MONTH for delivery specified, there would be no option in law to apply "Time is of the essence". By it's very wording, it only implies an estimated delivery point. However if a specific date i.e 15th July (Year) had been specified there would be an implied "time is of the essence" clause within the Contract. True John, but we have only seen a partial transcript of what appears to be merely a confirmation of order. That document itself will have been much longer than was replicated, and there will doubtless be other documents that said more. For example, at least a letter of acceptance from the buyer. As said many times, in the absence of full knowledge we are all, in reality, just guessing. Link to comment Share on other sites More sharing options...
Brian Kirby Posted November 18, 2012 Share Posted November 18, 2012 peter - 2012-11-17 11:58 PM....................This is getting >>> (boring) I know Peter, but to be bored you must have read it, so I hope it will come in handy when you, or anyone else with sufficient attention span, buys their next van. :-D There is a lesson in there somewhere for us all, if we can just get the ground rules straight. Link to comment Share on other sites More sharing options...
colin Posted November 18, 2012 Share Posted November 18, 2012 Brian Kirby - 2012-11-18 12:34 PM True John, but we have only seen a partial transcript of what appears to be merely a confirmation of order. That document itself will have been much longer than was replicated, and there will doubtless be other documents that said more. For example, at least a letter of acceptance from the buyer. As said many times, in the absence of full knowledge we are all, in reality, just guessing. Don't think so Brian. She was given an estimated delivery date of July 2012 and signed our very simple order form which has just two clauses – the customer signs and agrees that if they cancel or fail to complete the order, they will forfeit their deposit. They also agree that if there is an increase in the cost of the base vehicle from Fiat prior to delivery, they will pay that increase. Link to comment Share on other sites More sharing options...
Brian Kirby Posted November 18, 2012 Share Posted November 18, 2012 Robinhood - 2012-11-18 9:23 AM.................lf it is held that time is of the essence in respect of a contractual obligation and a party fails to comply the remedy is repudiation of the contract and a claim for damages. With this in mind parties are well advised to consider carefully before agreeing that time will be of the essence in relation to any term of a contract. [/i] But if, having made time of the essence, the completion date is allowed to pass, or it becomes clear that it will pass, without completion being achieved, and if no further comment is made by the employer, I seem to remember that time goes "at large", meaning the employer is deemed to have accepted an unlimited de facto extension of time for completion. To prevent that, if I remember, it is necessary to immediately repudiate, or serve a notice to complete on the contractor, giving him a reasonable time within which to do so. In this case, that was not, apparently, done and repudiation seems to have been attempted before the completion date had actually been reached. Contract law is notoriously difficult, being based mainly on precedent (of which there are many, sometimes contradictory), and because it is mainly common law, is subject change as new cases are concluded. Anyone faced with such a contract would be well advised to seek competent legal advice before seeking to alter it in any other way than by agreement. If both parties agree (and ideally signify their agreement), any legal variation can be introduced. If they don't, they should either agree to drop the change (possibly having it carried out post completion), or seek legal advice on their best way forward. Link to comment Share on other sites More sharing options...
Robinhood Posted November 18, 2012 Share Posted November 18, 2012 Brian Kirby - 2012-11-18 12:40 PM peter - 2012-11-17 11:58 PM....................This is getting >>> (boring) I know Peter, but to be bored you must have read it, so I hope it will come in handy when you, or anyone else with sufficient attention span, buys their next van. :-D There is a lesson in there somewhere for us all, if we can just get the ground rules straight. ......indeed. One should always try to learn from one's mistakes, but it is usually less painful to learn from those of others. ;-) Link to comment Share on other sites More sharing options...
Brian Kirby Posted November 18, 2012 Share Posted November 18, 2012 colin - 2012-11-18 12:58 PM Brian Kirby - 2012-11-18 12:34 PM True John, but we have only seen a partial transcript of what appears to be merely a confirmation of order. That document itself will have been much longer than was replicated, and there will doubtless be other documents that said more. For example, at least a letter of acceptance from the buyer. As said many times, in the absence of full knowledge we are all, in reality, just guessing. Don't think so Brian. She was given an estimated delivery date of July 2012 and signed our very simple order form which has just two clauses – the customer signs and agrees that if they cancel or fail to complete the order, they will forfeit their deposit. They also agree that if there is an increase in the cost of the base vehicle from Fiat prior to delivery, they will pay that increase. But with due respect to all parties, Colin, that is merely another assertion, but this time from the "other side". One side says the date was firm (though, IMO, a whole month can hardly be termed firm, and as stated elsewhere there is no mention of the status of that date as regards it being "of the essence") while the other says it was an "estimated" date. As transcribed, the word "estimated" does not appear. Taken on its own, "June" cold not, IMO, be considered a date for completion, being merely an expression of broad intent: it is too vague. For example, June which year? In isolation, such a loose definition of time could never convey that time was of the essence. In truth, I don't think "June" matters a hoot but, like the rest of us, I haven't seen all of the documentation, so have no idea what may have been said elsewhere. Fog! Link to comment Share on other sites More sharing options...
Robinhood Posted November 18, 2012 Share Posted November 18, 2012 Brian Kirby - 2012-11-18 12:59 PM Robinhood - 2012-11-18 9:23 AM.................lf it is held that time is of the essence in respect of a contractual obligation and a party fails to comply the remedy is repudiation of the contract and a claim for damages. With this in mind parties are well advised to consider carefully before agreeing that time will be of the essence in relation to any term of a contract. [/i] But if, having made time of the essence, the completion date is allowed to pass, or it becomes clear that it will pass, without completion being achieved, and if no further comment is made by the employer, I seem to remember that time goes "at large", meaning the employer is deemed to have accepted an unlimited de facto extension of time for completion. To prevent that, if I remember, it is necessary to immediately repudiate, or serve a notice to complete on the contractor, giving him a reasonable time within which to do so. In this case, that was not, apparently, done and repudiation seems to have been attempted before the completion date had actually been reached. Contract law is notoriously difficult, being based mainly on precedent (of which there are many, sometimes contradictory), and because it is mainly common law, is subject change as new cases are concluded. Anyone faced with such a contract would be well advised to seek competent legal advice before seeking to alter it in any other way than by agreement. If both parties agree (and ideally signify their agreement), any legal variation can be introduced. If they don't, they should either agree to drop the change (possibly having it carried out post completion), or seek legal advice on their best way forward. .....I'll see your "time is of the essence" clause, and raise you a "time at large", eh Brian. :-) I'm not sure that a contract where time is of the essence can migrate to one where time is at large without some sort of impacting action by the first party ("prevention"). This is probably quite a common occurrence in construction contracts (or at least, may be easier to plead). However, if the issue of failed delivery for a time of the essence contract were not raised fairly promptly, then I would have little doubt that this fact might be taken into account in the assessment of any damages subsequently claimed. Anyhow, this is further off topic, so a halt to this particular foray into a pretty murky world. :-S Link to comment Share on other sites More sharing options...
colin Posted November 18, 2012 Share Posted November 18, 2012 Brian Kirby - 2012-11-18 1:15 PM I haven't seen all of the documentation, so have no idea what may have been said elsewhere. Fog! You've missed my point, there is no other documentation AFAIK, even Murvi admit to this. Link to comment Share on other sites More sharing options...
Guest pelmetman Posted November 18, 2012 Share Posted November 18, 2012 malc d - 2012-11-18 9:51 AM Surprised you may be, but they do, and many are returning customers. A " £5000 deposit on a panel van " does sound a lot ( and it IS a lot ) - but a £5000 deposit on a good quality 'second home' doesn't sound quite so bad. As always - it's all down to personal choice. ;-) For £5000 you could buy a camper ;-) Link to comment Share on other sites More sharing options...
malc d Posted November 18, 2012 Share Posted November 18, 2012 pelmetman - 2012-11-18 2:22 PM malc d - 2012-11-18 9:51 AM Surprised you may be, but they do, and many are returning customers. A " £5000 deposit on a panel van " does sound a lot ( and it IS a lot ) - but a £5000 deposit on a good quality 'second home' doesn't sound quite so bad. As always - it's all down to personal choice. ;-) For £5000 you could buy a camper ;-) Nice one Dave ----Very true ! Just shows how many personal choices we have. ;-) Link to comment Share on other sites More sharing options...
Birder Posted November 18, 2012 Share Posted November 18, 2012 If M**** were so inclined they could of course post their reply & show us the contract including all the bits that Brian & others are so eager to see. They posted on the original to state their side of the story but I don't recall seeing any documentation to back up their claim either. So let's keep this 'contract issue' on level terms & to allow M**** the chance to share their documentation. No doubt Brian & others will then be able to sleep peacefully, knowing all the facts & this thread will come to a close. I don't think either side has come out of this issue very well & no doubt both sides will have learned lessons. Link to comment Share on other sites More sharing options...
malc d Posted November 18, 2012 Share Posted November 18, 2012 Birder - 2012-11-18 4:20 PM If M**** were so inclined they could of course post their reply & show us the contract including all the bits that Brian & others are so eager to see. They posted on the original to state their side of the story but I don't recall seeing any documentation to back up their claim either. I don't think either side has come out of this issue very well & no doubt both sides will have learned lessons. This is not a court of law so no-one is obliged to 'produce evidence'. And both sides have given their positions quite fully. It's just a forum. ;-) Link to comment Share on other sites More sharing options...
Robinhood Posted November 18, 2012 Share Posted November 18, 2012 malc d - 2012-11-18 5:01 PM This is not a court of law so no-one is obliged to 'produce evidence'. And both sides have given their positions quite fully. It's just a forum. ;-) ....and it rather demonstrates why such protracted disputes are ultimately best settled under legal auspices, where both "the law as she is wrote" can be properly applied, and the protagonists' statements can be properly examined, rather than "trial by Twitter" (or in this case, by forum(s)). So far I've avoided being drawn into the merits of the various positions, simply commenting on "points of law", but I consider the whole (and its predecessor) a rather nasty process. It would appear to me that the OP originally decided to try the legal route, but soon perceived that his case was not likely to be viewed favourably (quoting him indirectly via Judgemental as saying "A very vague contract but it does state the delivery date! I think legally it could have gone either way"). On the contrary, taking the balance of what the two parties have aired so far, IMO it is unlikely to have gone in anyone's favour but the manufacturer (possibly subject to the revised delivery date of September now effectively being made "of the essence"), and the OP's mother was very badly advised (as Crinkly has raised, in questioning the overall motivation for the post, I wonder by whom?) to progress through the Courts without further significant discussion with the Manufacturer. Having been the first party to resort to the law, the OP seems then to have taken great offence to the manufacturer mounting a robust defence - IMO a rather hypocritical stance. A more amicable approach to the manufacturer, and a willingness to communicate promptly, something which doesn't leap from the various accounts, might well have delivered a better all-round resolution. So, following a realisation that the courts may not view his case kindly, the OP has instead chosen to air his "grievances" on a few forums, where he appears to be effectively maintaining he still has a "cast-iron case". Now, I dislike such behaviour, and by association the people that exhibit it, so my opinion is somewhat affected by that. I do, however, consider it to be a malicious (in that it plainly seeks to damage the business - and, by the nature of some of the comments here, this appears to have been successful), vindictive, and quite probably mendacious attack. We cannot forensically examine the evidence as would the courts, but I have to say that I find the manufacturer's version of events the more compelling, not least because it describes fairly normal business practice in this sector, but also because it fills in considerably more detail that makes sense of the timescales and how things developed (and this doesn't conflict materially with the other side's account, but serves to give a much fuller picture of the possible events). I don't agree with Brian Kirby that it was a bad idea for the manufacturer to post a response, since the original post to which it replied was clearly designed to be damaging. I would maintain, however, that the manufacturer has done well to continue to restrict themselves to that single post!. I would suggest that for anyone taking part in this thread, reading it dispassionately would be a good idea. (Peter James has re-posted the original in one of his posts). It is (IMO) pointless having a prolonged discussion on whether one would engage with such business practice, particularly the large deposit, in specifying/ordering a van, it is widespread in this particular sector, and people do. In any case, the question really relates to the enforcability of the overall contract, not simply the deposit. Given the starting point, and taking the manufacturer's post at face-value, if anyone can see a major fault with the manufacturer's actions and offers given the agreement entered into, the law as it stands, the communications that took place, and the events as they unfolded, then (again, IMO) they are living on a very odd planet indeed. I'm also rather concerned that there is more to this than meets the eye. The OP's initial (now deleted) post appeared to take some dramatic licence with the operative dates (order and delivery); both being quoted differently to those described by the manufacturer (subsequently supported by the "order" purportedly seen by certain forum members), and both effectively making the picture seem worse by a month on each than it was. There also seems to be some careless use of terminology, in that the manufacturer appears to be accused of counter-sueing (for the sum of £45K?) whereas I would conjecture that they were simply planning to move completion of the contract, which would be a natural response to an action for cancellation and return of the deposit, and would indeed require payment of an additional £45K, but that would result in the original 'van being delivered. (I have little doubt, however, that having been taken through the courts, the question of costs might also arise). In the final count, the (proposed) delay came down to roughly 5 weeks (July to 1st week of September - I've seen 6 months and 3 months bandied around on posts!), for what was described as a "dream motorhome". All this after an originally envisaged delivery period of 8 to 9 months. Unless the original contract stated "time was of the essence" (which we've debated) no Court would be likely to find Breach for such a delay, (particularly if the manufacturer could demonstrate reasonable cause, and was able to propose such an early revised delivery date). It is worth noting that at least one person posting regularly on here has recently taken delivery of a non-bespoke PVC with a not dissimilar delay to agreed delivery date, and has posted their concerns without resorting to anything near the same emotion, and now seems happy with their purchase. The above is somewhat compounded by the revelation that "mum" has ultimately purchased a VW conversion, something that I would conjecture to be a very different beast to the Ducato-based "dream motorhome" initially envisaged. This raises a few questions as to when the "change of heart" occurred, and indeed when the vehicle in question was purchased in order to enable the summer of touring originally envisaged. (It would be a brave person indeed that purchased a different 'van whilst a court case was still in process that might force them to to buy the original, a "threat" which apparently wasn't withdrawn until 20th September, when it was deemed that court proceedings for recovery of the deposit would not go ahead, - and three weeks after the revised delivery date of the original!). IMO, to quote the Bard, there is something rotten in the State of Denmark. The fact that this happened, particularly in its final state, is unfortunate (in the event, for both parties), and IF all the issues are simply down to the delay (something I would question), I sympathise with the OP's Mother, but if it really was a "dream motorhome", I would suggest that swallowing hard and accepting 5 weeks delay (possibly with some negotiation on compensation) would have been much more appropriate. In their post, the manufacturer appears to have been prepared ultimately to take some financial "hit", but ultimately they were "nuked". In any case, I would suggest that she thinks long and hard about who she looks to for advice in the future. As for the OP, I have already expressed my contempt for his actions. Either settle and remain quiet, or sue and be damned! That, I think, is me done. ;-) Link to comment Share on other sites More sharing options...
colin Posted November 18, 2012 Share Posted November 18, 2012 Couldn't have put it better Robin, not sure who you are refering to, but we 'suffered' a 6 month delay and while not best pleased we accepted it, ok it was over winter but it did mean posponing a date dependant outing by 12 months. Link to comment Share on other sites More sharing options...
Birder Posted November 18, 2012 Share Posted November 18, 2012 Good point - I didn't wish to cause offence :$ I accept wholeheartedly that this is not a court of law & no one is obliged to 'produce evidence'. I was just trying to help bring this sorry episode to a swift conclusion where all could sign off; instead of 'bashing' other people's posts due to lack of knowledge of all the facts. The originator, for whatever reason & quite within his right, is reluctant to paste the contract on this site; intead he has offered to show it in a private message. I was merely saying M**** could then, if they wished, show their side of the contract thus closing the circle & putting this post 'to bed'. Link to comment Share on other sites More sharing options...
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