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Jo C.
Jo C., Barrister
Category: Law
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Experience:  Over 5 years in practice
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paid £100.00 deposit over the telephone to veiw and posibbly

Customer Question

paid £100.00 deposit over the telephone to veiw and posibbly purchase a used car advertise on Gumtree. 48 hours after i called to cancel the veiw, the Guy told me i will loose the deposit i paid.
Submitted: 2 years ago.
Category: Law
Expert:  Ben Jones replied 2 years ago.

Ben Jones :

Hello, my name is Ben and it is my pleasure to assist you with your question today.

Ben Jones :

Was this a private or business seller?

JACUSTOMER-z1dzuglr- :

business seller

JACUSTOMER-z1dzuglr- :

business sseller

Ben Jones :

Generally, when a person places an order for something and pays a deposit they enter into a legally enforceable contract with the seller. It is implied that the seller has accepted the deposit as security and as proof that the buyer wants to proceed with the contract.

Unless the seller subsequently commits a serious breach of contract, or there was a cancellation clause, the buyer would have no legal right to cancel the agreement and if they do so they will be acting in breach of contract and risk losing their deposit. This is especially true if the deposit was described as non-refundable.

If this was a business seller, they will be subject to certain consumer rules and regulations. For example, you will have some protection under Schedule 2, Regulation 1(d) of the Unfair Terms in Consumer Contracts Regulations 1999. It states that if the contract has been cancelled after a deposit has been placed you are entitled to have the deposit returned in full, unless the seller has spent time, effort and money, in which case they can deduct reasonable expenses. Even if some expenses have been incurred, if these are subsequently recovered, for example by selling the item to someone else, the deposit should still be returned in full. It follows that a blanket non-refundable clause that entitles the seller to keep the deposit in all circumstances is most likely going to be unfair and unlawful.

If you are having difficulties in recovering the deposit when you believe you are entitled to have it returned, advise the seller that you will not hesitate reporting them to the Office of Fair Trading and, if necessary, pursue the matter further through the county court. Exerting such pressure could often work in changing the seller's position in this matter.

JACUSTOMER-z1dzuglr- :

the never mention anything about non refundable until i called him today to cancel

Ben Jones :

that would not change your rights on recovering it if no expenses have been incurred by your cancellaiton

JACUSTOMER-z1dzuglr- :

he stated he had used the money to purchase 6 months road tax which we never discussed initially

Ben Jones :

then you can ask for it to be sent back for a refund, which can be done

JACUSTOMER-z1dzuglr- :

what can i do if he insist

Ben Jones :

the only thing you can do is to take him to the small claims court, although I suggest you write to him with a final request and telling him that court may be the next step

JACUSTOMER-z1dzuglr- :

what other help can you render for me today. i desperately need my money back. the reason why he ask me to pay deposit is just to secure it until veiwing.

Ben Jones :

Well there is only so much I can do - I cannot get the money back for you, neither does a way of a guaranteed return exist unfortunately. You can't physically force them to return your money, whatever you say to them. If they really wanted to keep the money, then I am afraid they can do so, and it would then be for you to pursue the matter further as discussed. If there was a way of guaranteeing the return of the money I would gladly let you know, but I know the law quite well in that respect and that is simply not possible, you will have to take the steps I mentioned above to try and get it back

JACUSTOMER-z1dzuglr- :

but this means i will keep spending more money by doing this or what do you think

Ben Jones :

it may indeed be the case, I must say that by the time this gets to court, you are likely to have spent more than the amount you are pursuing so I will probably not go down the court route if that was me, not for £100. I would pursue the person directly and threaten them with court, hoping they will just pay me back to get me off their back

JACUSTOMER-z1dzuglr- :

how much this advise cost me today?

Ben Jones :

the deposit you paid, I am not sure of the exact amount, I think around £30 or so

JACUSTOMER-z1dzuglr- :

this is not fair either

Ben Jones :

Well you came for advice and I have given you all there is to know about your legal position, telling you what your options are and what you can and can't do. If that is not the answer you were hoping for then unfortunately there is very little I can do - I do not write the laws, I simply tell you what they are. If I could give you a way to get your money back from the seller today I gladly would but that method simply does not exist

Ben Jones :

So the unfairness lies with the laws of the country, not with the advice I have given you

Ben Jones :

Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this?

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