Legal advice please – cancelling a new car dispute

PP after posting his cunning linguists pun:

Pretty much, but I wear glasses and don’t have as much hair.

🙂

Ling for PM!

Are you for real?

Different situations, different variables. Not able to grasp that?

This ? ? ? ? ? ? ?

Lunguists?

So cunning it will leave you breathless….

Ling Campaigned for Leave.

Other than that I think she’s great. But I can’t see past the whole leave thing.

[as an aside]Britain’s behaving like the OP ‘What do you mean I have to pay to cancel? How can I wriggle out of it?'[/as an aside]

Please, pause till tonight, I have lots of work to do

I like Ling. I like this thread.

I think Ling should let the OP off the £500. I imagine all the extra traffic from this thread should cover it.

The OP should then give the £500 to charity.

Looks pretty straightforward to me; contracts are binding unless the law says otherwise – they don’t have to be reasonable unless the law says they do. This is a customised item that can’t go back on the shelf and as I read it the law specifically says that in that case you don’t have a right to cancel without charge.

“Right to cancel

29.—(1) The consumer may cancel a distance or off-premises contract at any time in the cancellation period without giving any reason, and without incurring any liability except under these provisions—

(a)regulation 34(3) (where enhanced delivery chosen by consumer);
(b)regulation 34(9) (where value of goods diminished by consumer handling);
(c)regulation 35(5) (where goods returned by consumer);
(d)regulation 36(4) (where consumer requests early supply of service).”
a car built to a standard spec with standard colours upgrades is not a bespoke item for the purposes of this legislation.
The customer has a 14 day cooling off period without incurring any liability if he withdraws that is what a cooling off period is for. THAT is why all the motor industry legal advise seems to suggest the Dealer should not do anything to process the order until the cooling off period has expired, if the customer insists on making earlier progress see d above.
Still interested to know why ling argues the law designed for her business model does not apply to her business?

edit: the real lawyers are on the case

The sales guy told her it wasn’t necessary as the rear windscreen (approx. 45°) had been angled sufficient to allow the rain to just drip off. He said this while looking at the Jazz parked next to it, which had a near vertical rear windscreen AND a rear wiper.

Salesman was right.

The 45 degree angle of the civic means the airflow over the car will clear the rear screen when it’s raining.
The vertical angle of the Jazz rear window shields it from the airflow over the car, so it needs a wiper.

I suspect it’s for the same reason insurance companies deny, deny, deny even when the law is against them…

Just wondering what would be the likelihood of setting up and clearing the penalty cost via crowdfunding?

This is a customised item that can’t go back on the shelf

but to labour the point….. if it hasn’t been built yet then in reality it can be cancelled and not built with very little cost…. (maybe)

The question is…

If there is very little cost or loss in reality should the OP still be made to pay £500+ ?

I do get that a company should be left out of pocket but should a company be able to profit from a stupidity / change of circumstances and recover if not exceed lost income not just costs?

Ling Campaigned for Leave

Yeah, but that’s because Scots are miserable, Spaniards are lazy and something something Romanian fruit pickers. Seems a well thought out position TBF.

what £500? lings form that she posted makes no mention of £500 it says if you subsequently cancel agency costs “”may”” apply , this is not an area where i would pretend to any great knowledge, but ” may” is a vague word and contractual terms can be void for uncertainty particularly where one party is seeking to exploit the uncertainty that they created to avoid the other parties statutory rights.

Just wondering what would be the likelihood of setting up and clearing the penalty cost via crowdfunding?

This is either laughable, or a cunning callback to one of the OP’s previous threads.

but ” may” is a vague word

…and a vague politician.

Thank you, thank you! I’m here all week. Try the salmon!

I do get that a company should be left out of pocket but should a company be able to profit from a stupidity / change of circumstances and recover if not exceed lost income not just costs?

Yes they should if it’s in the terms and conditions you signed. The op would have kicked off if the car turned up the wrong colour wouldn’t he, quoting contract, that’s not what I ordered,signed for, paid for blah blah blah

If there is very little cost or loss in reality should the OP still be made to pay £500+ ?

may be missing something but im not sure ling actually has billed OP for that amount, just stated it may cost that. AFAIK she was trying to keep costs down and would just bill the actual cost to her.

Salesman was right.

The 45 degree angle of the civic means the airflow over the car will clear the rear screen when it’s raining.
The vertical angle of the Jazz rear window shields it from the airflow over the car, so it needs a wiper.

Nope. What about when you are slowly reversing out of a tight space in the rain. Is the airflow sufficient to clear the rear screen then? Pretty sure lack of rear wiper was for aesthetic reasons only. Rear view out of that car was bad regardless, what with the built-in glass spoiler.

Sorry to derail from an otherwise enjoyable thread. As you were…

From the OP (so it’s actually £600)

Don’t you need to actually sell something in order to charge VAT? roflcopter.

geordiemick00 » now she says she wants £500 + VAT to cancel.
From the OP (so it’s actually £600)

vs

My very last words to this chap, at 11.58 this morning, were: “I’ll do my very best to minimise those costs, I need to argue your case to the supplier General Manager.”,

And since when is a rear windscreen wiper an optional extra?????

Is it to keep your hands warm when you’re pushing it?

That joke would work if the option was ‘heated rear windscreen’, not ‘rear windscreen wiper’.[/quote]

i hate the term ‘mansplaining’ as much as the next, er, man. But sometimes you can see where they’re coming from…

Website alone would make me avoid this lot!

I’ll just put this here:

https://www.gov.uk/vat-motor-dealers

Stocking cars you don’t own

You can also reclaim VAT on charges for stocking cars you don’t own before you sell them.

At an attempt to address the myriad of mis-information on this thread, this is the legal position as I see it. Law isn’t entirely objective and happy to debate the points from a legal basis with anyone who’s prepared to actually do their research rather than just saying what they think the law might be or what they would like it to be.

I would take with a heavy pinch of salt any claims from the business owner that the contract terms have been validated by Trading Standards or upheld already by a Court.

Question 1): is there a contract?

Ambiguous. The order form states that “this form committs you to the contract”. It also, conversely, states that “following acceptance by the finance company, this is the order form”. That looks awfully like that acceptance by the finance company is a condition to which the contract becoming binding is subject. As the OP has not been through the process with the finance company, that condition has not been fulfilled. If there is no contract, there cannot logically be any sort of fee payable for its being unwound.

Question 2) If there is a contract, do the Consumer Contract Regulations (which incorporate the equivalent of what used to be the Distance Selling Regulations) apply?

In all likelihood, yes. It is correct that there is a carve out for bespoke goods, but does this vehicle fall into that category? In view of the facts (the car was offered to the OP with this particular spec pre-ordained, he did not tick off a list of options like you might if you were sat in a dealership), it is unlikely. The guidance notes to the regulations also state that where you are selecting from a prepared list of options, that is not likely to constitute a “bespoke” product. People have to understand that the OP’s contract (to the extent there is one) is with Ling. The OP gets the protection of his consumer rights in respect of that contract.

Question 3) If the CCRs apply, is the cancellation charge payable?

On the facts, no. The OP has given notice to cancel within the prescribed 14 day period. Cancellation charges are not legally enforceble for contracts that fall within the CCRs and are cancelled within a 14 day period. That period is there to allow consumers to change their mind. There doesn’t have to be a reason. The business owner has failed to back-off the risk of consumer’s exercising their statutory rights into her business model. No doubt that in some circumstances creates some upside for her. That is her risk and her responsibility.

Question 4) If a cancellation charge is payable, is the cancellation charge enforceable?

English law does not allow for penalties for breach of contract and so “cancellation charges” have, in effect, to be fair and reasonable. Much has been made of the statement on the order form to the effect that cancellation charges might apply. It is highly relevant that the form does not say how much those charges might be. Contrary to the claim of the business owner, that is not a very “transparent” way of doing business. £500 (ex VAT – which by the way is another issue) seems excessive to me. You also have to ask what that charge is for? Is it an administration fee for wasted time in dealing with the OP? Is it genuinely a straight pass through from the supplier (in which case why is the amount not specified in advance so the OP knows where they are?)? What has Ling done to mitigate her loss? What happens if this afternoon another customer of Lings decides to order that car? Is the cancellation fee payable then? We don’t know the asnwer to these questions because that information is not provided. The whole cancellation fee is unclear and ill-defined. The law is weighted in favour of consumers to prevent exploitation of consumers by businesses with deeper-pockets and consequently does not support businesses that treat consumers in that way.

There a whole load of secondary points on this thread that are outside of the scope of this analysis. Data protection, honesty, morals etc. I’ll leave all of that for STW to continue to debate.

From a purely gladiatorial point of view, I’d find it quietly amusing, given how bullish Ling is being, if Team Mick and his crack team of internet lawyers drove a Šuperb sized hole through her case.

Purely for the conflict ofc.

Edit: Nice timing, and fair play to curto80 to engage with the process and give the other side of the situation…from a legal standpoint that is.

(CONTAINS SWEARING, BUT CYCLISTS GOOD AT THAT WHEN I OVERTAKE THEM

Oh dear Ling…passing us lot too close ? Seriously unfunny joke when some of us, me included, ended up with life changing injuries from a knob like you.

i hate the term ‘mansplaining’ as much as the next, er, man. But sometimes you can see where they’re coming from…

😀 Okay put it another way, how do you keep your hands warm with a rear windscreen wiper?* It’s not being condescending (which is what ‘mansplaining’ is referring to?) when the ‘joke’ makes no sense. That’s just a reaction to not understanding something and not liking being told so. Please go ahead and explain the joke if I missed something?

If you want condescending, see my last post. 😈

* right answer is, ‘with difficulty’.

tiggs121 – Member
Website alone would make me avoid this lot!

Sorry it’s a repeat. Take it away Christine!

She’s probably wasted more than £500 replying to stuff on here already

Okay put it another way, how do you keep your hands warm with a rear windscreen wiper?*

Maybe moving your hands to avoid getting donked by the wiper warms the hands by increasing blood flow to the extremities?

Ok…I’ve got nothing.

For other very stupid customers who can’t use the internet, here is some advice. (CONTAINS SWEARING, BUT CYCLISTS GOOD AT THAT WHEN I OVERTAKE THEM)

If they can’t use the internet how would they see this? I is confused

There are some exclusions, not sure if this car counts. Not sure if cars with a lot of options count as bespoke (google says no, but I can’t find it clearly stated anywhere authoritative.) If so I find it astounding that a car with a ton of extras isn’t bespoke. Surely they’ll have to give those options away FOC, nobodys going to pay extra for options they don’t want and I doubt they can be removed.

http://www.legislation.gov.uk/uksi/2013/3134/made

Limits of application: circumstances excluding cancellation

28.—(1) This Part does not apply as regards the following—

(a)the supply of—
(i)goods, or
(ii)services, other than supply of water, gas, electricity or district heating,for which the price is dependent on fluctuations in the financial market which cannot be controlled by the trader and which may occur within the cancellation period;
(b)the supply of goods that are made to the consumer’s specifications or are clearly personalised;
(c)the supply of goods which are liable to deteriorate or expire rapidly;
(d)the supply of alcoholic beverages, where—
(i)their price has been agreed at the time of the conclusion of the sales contract,
(ii)delivery of them can only take place after 30 days, and
(iii)their value is dependent on fluctuations in the market which cannot be controlled by the trader;
(e)contracts where the consumer has specifically requested a visit from the trader for the purpose of carrying out urgent repairs or maintenance;
(f)the supply of a newspaper, periodical or magazine with the exception of subscription contracts for the supply of such publications;
(g)contracts concluded at a public auction;
(h)the supply of accommodation, transport of goods, vehicle rental services, catering or services related to leisure activities, if the contract provides for a specific date or period of performance.
(2) Sub-paragraph (e) of paragraph (1) does not prevent this Part applying to a contract for—

(a)services in addition to the urgent repairs or maintenance requested, or
(b)goods other than replacement parts necessarily used in making the repairs or carrying out the maintenance,
if the trader supplies them on the occasion of a visit such as is mentioned in that sub-paragraph.

(3) The rights conferred by this Part cease to be available in the following circumstances—

(a)in the case of a contract for the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons, if they become unsealed after delivery;
(b)in the case of a contract for the supply of sealed audio or sealed video recordings or sealed computer software, if the goods become unsealed after delivery;
(c)in the case of any sales contract, if the goods become mixed inseparably (according to their nature) with other items after delivery.

Right to cancel

29.—(1) The consumer may cancel a distance or off-premises contract at any time in the cancellation period without giving any reason, and without incurring any liability except under these provisions—

(a)regulation 34(3) (where enhanced delivery chosen by consumer);
(b)regulation 34(9) (where value of goods diminished by consumer handling);
(c)regulation 35(5) (where goods returned by consumer);
(d)regulation 36(4) (where consumer requests early supply of service).
(2) The cancellation period begins when the contract is entered into and ends in accordance with regulation 30 or 31.

(3) Paragraph (1) does not affect the consumer’s right to withdraw an offer made by the consumer to enter into a distance or off-premises contract, at any time before the contract is entered into, without giving any reason and without incurring any liability.

Normal cancellation period

30.—(1) The cancellation period ends as follows, unless regulation 31 applies.

(2) If the contract is—

(a)a service contract, or
(b)a contract for the supply of digital content which is not supplied on a tangible medium,
the cancellation period ends at the end of 14 days after the day on which the contract is entered into.

(3) If the contract is a sales contract and none of paragraphs (4) to (6) applies, the cancellation period ends at the end of 14 days after the day on which the goods come into the physical possession of—

(a)the consumer, or
(b)a person, other than the carrier, identified by the consumer to take possession of them.
(4) If the contract is a sales contract under which multiple goods are ordered by the consumer in one order but some are delivered on different days, the cancellation period ends at the end of 14 days after the day on which the last of the goods come into the physical possession of—

(a)the consumer, or
(b)a person, other than the carrier, identified by the consumer to take possession of them.
(5) If the contract is a sales contract under which goods consisting of multiple lots or pieces of something are delivered on different days, the cancellation period ends at the end of 14 days after the day on which the last of the lots or pieces come into the physical possession of—

(a)the consumer, or
(b)a person, other than the carrier, identified by the consumer to take possession of them.
(6) If the contract is a sales contract for regular delivery of goods during a defined period of more than one day, the cancellation period ends at the end of 14 days after the day on which the first of the goods come into the physical possession of—

(a)the consumer, or
(b)a person, other than the carrier, identified by the consumer to take possession of them.
Cancellation period extended for breach of information requirement

31.—(1) This regulation applies if the trader does not provide the consumer with the information on the right to cancel required by paragraph (l) of Schedule 2, in accordance with Part 2.

(2) If the trader provides the consumer with that information in the period of 12 months beginning with the first day of the 14 days mentioned in regulation 30(2) to (6), but otherwise in accordance with Part 2, the cancellation period ends at the end of 14 days after the consumer receives the information.

(3) Otherwise the cancellation period ends at the end of 12 months after the day on which it would have ended under regulation 30.

Exercise of the right to withdraw or cancel

32.—(1) To withdraw an offer to enter into a distance or off-premises contract, the consumer must inform the trader of the decision to withdraw it.

(2) To cancel a contract under regulation 29(1), the consumer must inform the trader of the decision to cancel it.

(3) To inform the trader under paragraph (2) the consumer may either—

(a)use a form following the model cancellation form in part B of Schedule 3, or
(b)make any other clear statement setting out the decision to cancel the contract.
(4) If the trader gives the consumer the option of filling in and submitting such a form or other statement on the trader’s website—

(a)the consumer need not use it, but
(b)if the consumer does, the trader must communicate to the consumer an acknowledgement of receipt of the cancellation on a durable medium without delay.
(5) Where the consumer informs the trader under paragraph (2) by sending a communication, the consumer is to be treated as having cancelled the contract in the cancellation period if the communication is sent before the end of the period.

(6) In case of dispute it is for the consumer to show that the contract was cancelled in the cancellation period in accordance with this regulation.

Anyone interested in what the law actually says

Yes, please post links to the law.

You need to look in the guidance notes

From a purely gladiatorial point of view, I’d find it quietly amusing, given how bullish Ling is being, if Team Mick and his crack team of internet lawyers drove a Šuperb sized hole through her case.

I just find it interesting and useful to know that the next time a dealer arses me around I’m can buy 500 cars online and cancel them after 13 days.

fair play to curto80 to engage with the process

+1

You need to look in the guidance notes

Googling distance selling “guidance notes” new car sales doesn’t help. Can you point me direct at the bit you’re referring to.