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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 53080
Experience:  Qualified Solicitor
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Please can you advise me. We are a restaurant in London. Our

Customer Question

Hi, Please can you advise me . We are a restaurant in London . Our GM rang a company called Nisbets ( catering equipment company we have used many times before ) and made an order for a combo oven (approx £5,000 worth of machinery ) we received email notification of the order, also received email of a "sales quotation' dated 9/7/18 for the correct machine with a ref no. The following day 10/07/18 we received an invoice dates 9/7/18 by email for a different machine ( product code v long and she did not notice that it was a different machine ) she did not change the order. She had a conversation with the sales rep and had managed to get a reduction in the price . Nisbets say they have her on tape agreeing the order but they are delaying the release of the tape recording. Model numbers on the machines are very similar and it would be easy to not notice the change . The machine was installed while the manager was away and the machine is too small, does not fit our existing trays , there is no way we would have ordered a machine that we cannot use. They are saying that we will be charged a "restocking fee " of 25% ( over £1000 ) and that they may retain up to 60% of the value of the machine as it is now second hand because it was installed ( despite the fact that it has not been used ) They are also saying that if it is not returned within 30 days they will not accept it but they are saying that they cannot release the taped conversation for 30 days !! We need the correct oven and obviously cannot use this oven if we want them to replace it with the right one... What are our legal rights ? Can we use the oven or would that make it more complicated ...Thank you
Assistant: What state are you in? And is a local attorney or other consumer protection advocate helping with this?
Customer: london UK
Assistant: What steps have you taken so far?
Customer: tried to get the recordings released and have asked for them to take the oven away and give us the one we ordered
Assistant: Anything else you want the lawyer to know before I connect you?
Customer: no thank you
Submitted: 4 months ago.
Category: Law
Expert:  Ben Jones replied 4 months ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

Expert:  Ben Jones replied 4 months ago.

So what have they said about the different email confirmations that were received?

Customer: replied 4 months ago.
They are saying that the GM approved the change of machine in a telephone conversation but our not allowing us to hear that recording ... she says she did not
Customer: replied 4 months ago.
ok
Customer: replied 4 months ago.
The main issue is that there was a sales quotation which was for the right machine and then on the same day an invoice for a different machine ( slight change in product code ) which you would be forgiven to not notice which they are saying she agreed to which she says she did not as they smaller machine is completely useless to us, they're saying she agreed in a phone conversation but are not allowing us to hear that conversation ...all they have to do is pick up the machine and let us have the right one .. happy to pay for them to do that just not the ridiculous re- stocking fee and 60% of the cost of the wrong machine !! seems very unfair !
Customer: replied 4 months ago.
are you still there ?
Customer: replied 4 months ago.
hello ?
Customer: replied 4 months ago.
Can you let me know if this is something you can help me with ....
Expert:  Ben Jones replied 4 months ago.

Hi there, Apologies for the slight delay and thank you for your response. Leave it with me for now and I will review the relevant information and laws and will get back to you as soon as I can. Please do not respond to this message as it will just push your question to the back of the queue and you may experience unnecessary delays. Thank you

Expert:  Ben Jones replied 4 months ago.

Hi there, apologies for not being able to reply until now, my internet went down and it has just been repaired.

Going back to your query, your rights will very much depend on what was actually ordered and agreed in the conversation in question. If the GM ordered the correct oven and never approved a change to another model, you can argue that the seller has acted in breach of contract and also contrary to the Sale of Goods Act, which still applies to business purchases. What would matter then is whether the difference was obvious on delivery and if it was, why did you install it anyway. If the differences we subtle and not immediately apparent, you have an argument that you should not be charged anything for having installed it. On the other hand, they could argue that whilst the wrong item was delivered, you should have simply held it in the condition it was, rather than install it and thus make it difficult to resell.

If the wrong item was ordered and the manager actually approved the new oven, then your rights will obviously become more limited. You will not have an automatic right to return it or exchange it and that would only happen if the purchase terms allowed it or with the consent of the seller.

I know they say the tapes cannot be released for 30 days but you have to advise them that you reserve the right to return the item even after the 30 days, assuming they sent the wrong oven.

In any event, I suggest you do not use the oven as that could make it more difficult to return it, especially that now you know it is the incorrect one.

Does this answer tour query?