How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask Joshua Your Own Question
Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25993
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
35043042
Type Your Law Question Here...
Joshua is online now

I am currently in dispute with a company who undertook to

Resolved Question:

I am currently in dispute with a company who undertook to act as a broker in the sale of my motorhome. They acted on a no-sale, no-fee basis and required 90 days' exclusivity. They also required one month's notice of termination at or after the 90 day period. I entered into the contract in good faith but about 2 months after the start of the period my father was diagnosed with metastatic prostate cancer with a life expectancy of 6 months or thereabouts. I work from home and so was ideally placed to be able to spend several days a week with him as his carer. He lives in Wellingborough, I am in Southampton - a round trip of 260 miles every week. This made being available at hours' notice for potential buyers to see the camper difficult, and I had to cancel or postpone several appointments. Eventually I said to the broker he should take the keys and he could then visit/drive the camper without reference to me or my wife. He refused and came back several days later suggesting instead that he take the camper to sit on his company forecourt. This was never part of the original agreement so we refused.The strain of looking after a sick father and trying to continue a busy job at two locations brought me to a decision to postpone the sale of the camper until a more convenient time. The 3 month initial contract period was well past by this time and I indicated that I wanted to stop the sale unless the broker had any more ideas. Their response was to hit me with a bill for £1,000 saying that I had acted in bad faith and 'never really wanted' to sell the camper. I examined their Brokerage Agreement and there was no mention of no-sale, no-fee. Their email that that set out part of their terms and conditions didn't mention it either but it did say that we should make any necessary arrangements to ensure the camper was always viewable. I consider offering the keys to have fulfilled that requirement. The contract I signed does mention the no-sale, no-fee offer but only to say that it exists. It does say that if I withdraw from sale without one month's notice I will be liable to a fee, for expenses, not exceeding £1,000. I'm guessing this is where their demand comes from. I didn't formally withdraw from the contract at any time; I merely said, almost in passing, that in view of the difficulty in selling and our inability to come to a solution regarding access to the camper I would be 'minded to take it off the market.'Recognising that my father's illness was not the fault of the broker and that therefore my circumstances were at least party to blame I offered the broker, without admission of liability, £200. They replied refusing the offer and lowering their own demand to £500. Failure to accept this sum would trigger their pursuing the matter in the Small Claims Court for the the full £1,000 plus costs. To my mind this reduction from £1,000 to £500 would indicate that the figure of £1,000 is plucked out of the air and it meant to be punitive rather than representing their actual expenses. I do not relish the thought of being summoned to SCC. As a landlord I have been on the other end of this procedure & know what it entails. In any case worrying about an impending court appearance is more than I can cope with at the present time dealing as I am with a dying parent. I know this is an emotional argument and will be of no interest to the broker or the Court but I cannot afford the time or uncertainly of a Court appearance. It is in my mind to counter them with one final offer of £350. The belligerent side of me says I should argue this, but pragmatism says that as I am partially at fault I should try to reach a compromise but their threat of SCC action is intimidating. I'd be grateful for any guidance you are able to give. I can proveide the relevant documents if that is necessary.Thank you, ***** *****
Submitted: 13 days ago.
Category: Law
Expert:  Joshua replied 13 days ago.

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

  1. I am very sorry to read of the above. May I clarify has the agreement now been cancelled pursuant to your notice - ie. you have given the necessary notice required to cancel?
  2. Did the broker actually find a buyer for the vehicle?
Customer: replied 13 days ago.
Thank you for your quick response.1) There was no formal request from me to cancel the agreement however they broker appears to have taken my comments as notice to quit. However the camper is now sold (2 weeks ago) through a third party so I'm not sure where, contractually, I currently stand.2) The broker did not sell the vehicle. Two potential buyers visited but did not buy.
Expert:  Joshua replied 13 days ago.

Thank you. From what you say the sale was agreed after the initial 90 day period of exclusivity? After this initial 90 day period of exclusivity does the exclusivity provision fall away?

Customer: replied 13 days ago.
That is correct.
Customer: replied 13 days ago.
Hello, Have you finished?
Expert:  Joshua replied 13 days ago.

Thank you for the above. Apologies for the delay in reverting to you - I had to take a phone call which has dragged on. I'm just typing a response now which I will post in a few minutes with your permission

Customer: replied 13 days ago.
Sorry for my impatience...
Expert:  Joshua replied 13 days ago.

Based on what you say the agency was no longer in a period of exclusivity in respect of the sale of the vehicle for which they could potentially claim what are known as sole selling rights. Sole selling rights entitle an agent to claim commission whether or not they were involved in any eventual sale. this is not the case in respect of what are known as sole agency agreements which is likely to be what this agreement became after the exclusivity period fell away.

The Court of Appeal decided in a case of Bicknell v Foxtons (an estate agency but the same principles apply to agenecy agreements generally) that an agent is not entitled to commission in respect of any sale unless they can demonstrate they were instrumental in bringing the sale to fruition or unless they can demonstrate that they were entitled to sole selling rights during the period in which the property was sold. On the basis the vehicles sold outside of any period of exclusivity, unless they can demonstrate that they were instrumental in facilitating the sale, they would not be entitled to commission.

the agent appears to be overly optimistic in respect of its entitlement under a claim of bad faith on your part. English law has a very limited doctrine of good faith. If there is an express provision in the contract that both parties owe each other a duty of good faith then this will imply that each party adheres to the spirit of the contract but even this does not imply further obligations beyond the above general duties. If the agent can demonstrate that you have acted dishonestly, it may support a claim of bad faith on your part but short of this, there is no obligation upon you to act in a particular manner in respect of the contract. Their claim for compensation on grounds of bad faith would not appear to have any merit.

You may therefore consider responding to the agents denied any liability to them and ensuring that they acknowledge receipt of your notice to cancel the agreement

Does the above answer all your questions? If it does, I should be very grateful if you would kindly take a moment to click a rating for my service to you today. Your feedback is important to me. If there is anything else I can help with please reply back to me though

Joshua and other Law Specialists are ready to help you