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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 45373
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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We wish to cancel a contract with a company as they should

Customer Question

We wish to cancel a contract with a company as they should have delivered and fitted goods on 7th July but were unable to do so as the member of staff due to fit the goods left their employment. We have been told the earliest delivery is 25th August which is unacceptable to us. They say we cannot cancel the contract as their inability to deliver is due to "circumstances beyond their control" Is this correct?
Submitted: 6 months ago.
Category: Law
Expert:  Ben Jones replied 6 months ago.

Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today.

Expert:  Ben Jones replied 6 months ago.

How long ago did you sign the contract?

Customer: replied 6 months ago.
28th Aril 2016
Expert:  Ben Jones replied 6 months ago.

OK thank you, ***** ***** it with me. I am in court today so will prepare my advice during the day and get back to you at the earliest opportunity. There is no need to wait here as you will receive an email when I have responded. Thank you.

Expert:  Ben Jones replied 6 months ago.

Sorry just one more question - did the contract you had with them state anything about not being able to cancel for circumstances beyond their control?

Customer: replied 6 months ago.
In their contract T&C's re delivery it says " Unless otherwise expressly agreed in writing, any delivery or supply date or time specifically specified by us in any order or otherwise is a best estimate only and we will not be liable to you for any loss or damage (including for the avoidance of any doubt any loss of income or revenue, loss of business, loss of anticipated savings, loss of data or any waste of time relating to a cancelled fitting appointment) sustained by you if we fail to meet that timescale because of circumstances beyond our reasonable control." The fitter who was supposed to come to us on 7th July left his job and they are claiming that is a circumstance beyond their reasonable control. Surely employees leave jobs all the time - they should employ sufficient peole to cope with this.
Expert:  Ben Jones replied 6 months ago.

Yes I agree. Unless this was a very specific piece of work where a particular skilled person was required to do it, the fact that they have eft should not result in such an unreasonable delay. If this s a generic piece of work that they do on a frequent basis and any of their fitters can do it, then they should try and fit you in sooner.

As far as the formal legal position is concerned, when you have entered into a contract for work and materials, where the main focus is labour and skill, the Consumer Rights Act 2015 says that the work must be:

· Carried out with reasonable care and skill (to the same standard as any reasonably competent person in that trade or profession);

· Finished within a reasonable time (unless a specific time has been agreed); and

· Provided at a reasonable price (unless a specific price has been agreed).

In addition, any information said or written is binding where the consumer relies on it. This will include quotations and any promises about timescales or about the results to be achieved.

Whilst you can advise them that you are cancelling and set out your reasons for doing so, you cannot force them accept such cancellation or to refund any deposit or payments you have paid. It means that you would have to consider taking this further in order to pursue a refund for that money and there are options available for you to do this.

This is your basic legal position. I have more detailed advice for you in terms of the steps you can take if they refuse to agree to the cancellation and refund you the money, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you

Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 45373
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and 4 other Law Specialists are ready to help you
Customer: replied 6 months ago.
Ok thanks, ***** *****
Customer: replied 6 months ago.
Hi Ben
Sorry we were out yesterday afternoon so I didn't look at my emails until now. Last Friday the company rang and said they had found a fitter to do the work, he had taken delivery of our blinds and shutters and he would contact us over the weekend to arrange a suitable day and time this week for them to be fitted. Unsurprisingly this did not happen so we decided we have had enough of being fobbed off - we've even said just deliver the blinds and shutters and we will fit them ourselves or find a local person to do it. When I said that I wanted to cancel the order I was told that I couldn't do so, as they had kept us up to date on what was happening (because we rang them - they rarely rang us) and that the loss of their fitter Steve was a circumstance beyond their reasonable control.
Expert:  Ben Jones replied 6 months ago.

Hi there, whilst there is nothing specific in law which says how long a delay can be before it becomes unreasonable, the fact that you have given them the opportunity to resolve this and they have failed to do so, means that you would have a better argument against them.

As to taking this matter further, whenever a dispute arises over money owed by one party to another, the debtor can be pursued through the civil courts for recovery of the debt. As legal action should always be seen as a last resort, there are certain actions that should be taken initially to try and resolve this matter informally and without having to involve the courts. It is recommended that the process follows these steps:

1. Reminder letter – if no reminders have been sent yet, one should be sent first to allow the debtor to voluntarily pay what is due.

2. Letter before action – if informal reminders have been sent but these have been ignored, the debtor must be sent a formal letter asking them to repay the debt, or at least make arrangements for its repayment, within a specified period of time. A reasonable period to demand a response by would be 10 days. They should be advised that if they fail to do contact you in order to resolve this matter, formal legal proceedings will be commenced to recover the debt. This letter serves as a ‘final warning’ and gives the other side the opportunity to resolve this matter without the need for legal action.

3. Before you consider starting legal action you may wish to consider sending a formal statutory demand. This is a legal request which asks the debtor to pay the outstanding debt within 21 days and failure to do so will allow you to bankrupt the debtor (if they are an individual ) or wind up the company (if they are a business). For the relevant forms to serve a statutory demand see here: https://www.gov.uk/statutory-demands/forms-to-issue-a-statutory-demand

4. If they fail to pay or at least make contact to try and resolve this, formal legal proceedings can be initiated. A claim can be commenced online by going to www.moneyclaim.gov.uk. Once the claim form is completed it will be sent to the debtor and they will have a limited time to defend it. If they are aware legal proceedings have commenced it could also prompt them to reconsider their position and perhaps force them to contact you to try and resolve this.

Whatever correspondence is sent, it is always advisable to keep copies and use recorded delivery so that there is proof of delivery and a paper trail. The court may need to refer to these if it gets that far.

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