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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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I have signed a contract with a company for what is essentially

Resolved Question:

I have signed a contract with a company for what is essentially a magic box plus some other gadgets.
They cancelled three appointments for the salesman to call. The fourth attempt was successful and I signed and paid a deposit.
They made an appointment for the survey which was then cancelled and rearranged.
Today was the installation day but they called yesterday to say they could not come.
Do I have the right to cancel for breach of contract as I am now feeling if I have problems after installation I may have to wait forever to have them return to fix it! Can I claim my deposit back from them?
Submitted: 3 years ago.
Category: Law
Expert:  Jo C. replied 3 years ago.
Hi.

Thank you for your question. My name is XXXXX XXXXX I will try to help with this.

Did you agree any cooling off rights please?
Customer: replied 3 years ago.

I don't think so. It would be past 7 days since I had the salesman in anycase

 

I was given seven day cooling off period having checked the paperwork. That was from 3.4.14.

 

I have called them again & spoken to someone. I have given them 3 weeks to install the technology - a final date of 15.5.14 to install by - or the agreement will be considered a breach of contract as time is of the essence. I have a decorator and carpet fitter waiting for dates now as the work has not been done on time.

 

I ahve confirmed this conversation by email to the company.

Expert:  Jo C. replied 3 years ago.
Thanks.

The breach being the delay?

If so, did you agree time was of the essence?
Customer: replied 3 years ago.

When I spoke to them today I quoted that time was of the essence now because of all the delays. I have given them till the 15.5.14 to fit the technology and they have come back with a date of 8.5.14


 


If they delay this can I get out of the contract?

Expert:  Jo C. replied 3 years ago.
.

Okay. Thank you.

What I need to know is whether you agreed in advance that time was of the essence.?
Customer: replied 3 years ago.

Not at the beginning, no. I did question the salesman about the number of appointments that were cancelled at the last minute but he assured me that it was the exception and I would have no problems with the technical team.


He was wrong!

Customer: replied 3 years ago.

No. They were the ones who were pushy over the dates. I work part time and only have 2 days off a week.


 


They booked the survey for the week after the salesman called. He rearranged it on the day he should have come.


 


He arranged the fitting for the following week but then yesterday I was told they were not coming.


 


They have now rearranged for 8.5.14 after my conversation with them about the frustrations of them constantly not turning up and setting a time constraint.

Expert:  Jo C. replied 3 years ago.
Thanks.

Sorry for the delay.

I am afraid that its bad news.

If you are saying that you want to cancel essentially because of delay then that is not a ground to escape I'm afraid.

Although they are in breach of contract as they have failed to comply with the dates given, it is not a material breach striking at the heart of the contract and so does not amount to a repudiation of contract.

It would be different if you had agreed that time was of the essence in the contract. That would mean that a delay would amount to repudiation.

You are only under an obligation to wait a reasonable time though. If they do not comply fairly quickly then you may be able to escape. However, if its just the a deferment on one occasion to a date in May then that is not an unreasonable delay I'm afraid.

I'm very sorry but thats your position.

Can I clarify anything for you?

Jo
Customer: replied 3 years ago.

They have offered to drop the price by £100 pounds as I could have worked the day they were due to come and lost out as they got someone else to cover that day.


 


They have sent me a letter to agree to this amended price and asked me to sign - can I add that time is of the essence? Is this in effect a new contract? They have sent two copies, one to return & one for me.

Expert:  Jo C. replied 3 years ago.
You can add that time is of the essence but unless they agree to it then it will not binding.

Its a variation of contract rather than a new one.
Customer: replied 3 years ago.

OK thank you. They seem to have responded by making a date but then they did that four times with the salesman and twice with the surveyor! What would be considered a reasonable time as I am delaying the decorator & carpet firm?

Expert:  Jo C. replied 3 years ago.
It depends on the complexity of the job and its always a question for courts but I think, overall, a couple of months would seem reasonable.

You do need to warn them though that if they do not act by X date then you will consider the contract repudiated.

Customer: replied 3 years ago.

Thanks for your help. Not necessarily what I wanted to hear but at least I know where I stand.

Expert:  Jo C. replied 3 years ago.

No problem and all the best.

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