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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25420
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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We went to Hull to purchase a Norweigan kitten.The lady took

Resolved Question:

We went to Hull to purchase a Norweigan kitten.The lady took our £100.00 as a deposit.She has now said that we are not suitable .
Submitted: 3 years ago.
Category: Law
Expert:  Joshua replied 3 years ago.

Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

May I ask was a price agreed for the kitten and a date for collection please and if so was this agreed in writing?

Customer: We went to a house in Hull,and saw the kitten Amuruko Wookie.We gave a deposit of £100.00 and received a receipt.We have bought £200.00 worth of items.My wife has got time off as holiday.We are very disappointed at her reaction.We said we wanted a companion kitten,at an expense of £100.00 deposit.That is extra.We have done nothing wrong.She gas said in an e-mail host we are not suitable.We are a genuine couple ,who have been cat owners before.We were going to pick up Wookie on the 23/05/2014.
Customer: The total price is an extra £350.00 test would have been paid in cash.
Joshua :

Thank you. Was the transaction agreed verbally or was anything written down?

Customer: It was a verbal agreement,we were both there at the tine.in her house.
Joshua :

Thank you. Does the receipt indicate the total amount agreed to be paid or alternatively does an advert for the kitten confirm the amount?

Customer: Tthe receipt says received £100.00 deposit non refundable for Amurusko Wookie.Brown tabby & White.Norweigian a Forest Cat.Dated 14/04/2014
Customer: No.
Joshua :

Thanks. Finally you mention you purchased a number of other items from the dealer. Do you have evidence of the amount you paid and did you purchase these items on the basis that you were going to purchase the kitten?
Would I be correct to assume that you did not take away the kitten on the basis that it was not old enough at the time?

Customer: Yes the kitten is not ready until the 23/05/2014
Customer: We did not purchase the items from the seller of the kitten,we went especially out to Pets at Home to purchase the items.
Joshua :

Thanks. OK based on what you say there would appear to be the basis of a contract with the dealer which would prevent the dealer from changing her mind however there are a couple of significant caveats to this.

Customer: What are they.
Joshua :

If terms have been agreed between parties and monies have been exchanged as a deposit and/or payment then a contract will be deemed to exist unless there is a reason to rebut this such as for example one of the parties expresses any payment to be "subject to contract" which will obviously not be the case here.

However as above there are a couple of caveats to the above here. The first issue is that from what you say there is no written evidence as to the price agreed for the kitten - neither in writing between you nor by reference to an advert. This is difficult because it allows the dealer to dispute the price you say you agreed.

Joshua :

The second issue in relation to forcing the dealer to sell the kitten to you is that the courts generally will not award specific performance as a remedy - i.e. an order forcing someone to complete a transaction. They courts will generally only grant specific performance for things for which damages (compensation) will not suffice. This would typically be land or valuable individual objects like paintings etc. Normally a court would simply award damages for breach of contract rather than specific performance. In order to obtain specific performance you must show a court that the subject of the contract - here a kitten - is a one off and cannot be replaced with another.

Customer: They was no reference in the website advert,but when we went to the house,she said the remaining monies £350.00 had to be paid I. Cash,when collecting Wookie the kitten on the 23/04/2014..we were both witnesses to the final amount owing on the day.
Joshua :

On one analysis this is easy as every kitten is individual but the question you would need to satisfy is "why would another kitten not be able to replace this". i.e. why is this kitten of particular value to you over another. If you can satisfy this question you could seek specific performance but if not then a court would likely limit itself to awarding damages for breach of contract.

Joshua :

Accordingly how to proceed would depend very much on a) how much you want this specific kitten over another and b) whether you can satisfy the above test for specific performance.

Customer: The kitten was the one we noticed,and in our hearts ,we fill very attached to the kitten.We picked the kitten up,both of us when we went to the house in question.Not only she said we are unsuitable.But taking our deposit,
Customer: The deposit note has Ben signed and dated the 14/04/2014.
Joshua :

Unfortunately the courts make decisions based on economic arguments rather sentiment or emotion however harsh this may sound. If the kitten is for personal company / enjoyment this is going to be difficult to seek specific performance for. If however you could show that the kitten was for example for breeding and it was a very fine example and failure to complete the transaction will lead to a loss of future income this could be a basis for an argument for specific performance. It would not be entirely straightforward.

Customer: So nothing then......
Joshua :

In terms of the other products you bought from PAH having looked at their returns policy it is very generous and providing they have not been opened it appears they can still be returned for a refund.

Joshua :

Sorry my previous post has not posted. i will retype...

Joshua :

Even if you cannot satisfy the test require for specific performance you would certainly be entitled to the return of your deposit and and loss you suffer in terms of travel expenses to source an alternative kitten.

Joshua :

You can also claim interest at 8% per annum on any money owed to you.

Joshua :

Would you like to continue? I note you have gone off line?

Customer: You don't seem to give me a solution.We paid our deposit,in good faith,and agreed a date to collect Wookie.Accepting our deposit,was a deposit,a binding contract,verbally,and in a note received £100.00 deposit,non refundable.for Amurusko Wookie.Brown tabby& White.Norweigan Forest kitten.14/04/2014.It was signed and dated.She accepted our deposit in good faith,after seeing us.We picked the kitten in question,and she could see we were capable of looking after him.There was another kitten,she was waiting for there confirmarmation.We said we would purchase the other kitten as well,if they didn't want the other kitten.We are honest caring adults,and have done nothing wrong in the world of the law.She has wrote an e-mail stating she thinks we are unacceptable.She doesent know us.We travelled 5 hours to see her,booked a hotel.
Customer: We have noticed that two cats,that had been booked to a family gave come on the market again.She seems to be angry,because of of the situation other people gave given her since yesterday,and assumed every body is the same.
Joshua :

Based on what you say you are without doubt entitled to the return of your deposit. In addition an agreement was made to sell you the cat you have a basis to claim the costs you necessarily incurred in arranging the purchase of the cat though such costs should be mitigated so far as is reasonable. In addition you can claim interest at 8% per annum.

Joshua :

You can attempt a claim for specific performance instead of damages whereby sh is forced to sell you the kitten. Such a claim whilst not impossible would however be difficult as we have discussed above but it costs nothing more to seek it in the courts.

Joshua :

In terms of a way forward...

Joshua :

You may wish to write to the dealer setting out the terms of your agreement (i.e. the price agreed and date for collection) and refer to the deposit paid and remind the dealer that a contract exists for the sale of the kitten.

You may consider going on to say that you should be grateful for her confirmation that you will be able to collect the kitten on the date agreed within 10 days failing which you reserve your right to
a) seek specific performance of the contract;
b) damages in default thereof;
c) your reasonable losses and expenses incurred;
d) interest at 8% under the County Courts Act and
e) court fees.

Joshua :

This may be sufficient to prompt her into compliance. If not you can issue proceedings seeking the above using www.moneyclaim.gov.uk.

Joshua :

Is there anything else i can clarify for you?

Customer: Thank you,I have been in touch with the seller of the Kitten,I gave stated that I have contacted a solliticitor.I gave stated that when you took my £100 deposit that you made a binding on tract.You face a signed receipt of £100.00.we both heard that the remaining balance would have to be paid on the 23/04/2014.I have asked for monies incurred petrol from Swanley to Hull,hotel expenses,deposit.Defination of character.I hsve given her 1 week for a reply,of I will send a solitocitors letter and court proceeding will follow......
Joshua :

A pleasure. I hope you receive a positive response. Just one small point on the above you will not be able to sue for defamation of character if she has only made comments to you personally. In order to sue for defamation of character you must show that she has communicated defamatory comments to a third party other than yourself which I would presume is not the case. But otherwise the basis of your claims appear sound. I hope you achieve a positive outcome.

Joshua :

If I can assist any further as the situation develops please do not hesitate to revert to me

Customer: Thank you,for your response.I am a strong character.I worked for Mitie.I had 9 days owing,I went to the CAB,and sent a letter to Mitie,please send me my holiday pay.I they have said we do not have to pay you this money.But after consideration,they gave paid me what they owe me £360.00.If you don't take the bull by the horns,they will walk all over you.I give put a Senior Zmanafer in his place !the way he talked to mr.I have a a very strong character,a Leo.Nobody makes a idiot out of me.
Joshua :

Very often as you say if you make it clear that you are not going to be put off another party will back down particularly if you are threatening court proceedings. You can certainly raise the issue of character with the dealer however if you were to actually have to issue proceedings against the dealer it would not be worthwhile including this aspect because defamation of character cannot be dealt with in the small claims court and you would also need to prove that she communicated defamatory comments to a third party. It would in essence complicate your claim. If issuing proceedings it would be wise to focus on the heads of claim you can win as above. Hopefully once you make your position clear the dealer may reconsider her position without the need for actual court proceedings.

Joshua :

I wish you the very best in achieving a satisfactory settlement.

Customer: Thank you very much.
Joshua :

Please do come back to me if I can assist any further with this

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