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.
  • Go back-and-forth until satisfied
    Rate the answer you receive.
Ask JimLawyer Your Own Question
JimLawyer
JimLawyer, Solicitor
Category: Law
Satisfied Customers: 14359
Experience:  Senior Associate Solicitor
97337639
Type Your Law Question Here...
JimLawyer is online now

I have a holiday home which I let out on various platforms I

This answer was rated:

Hi there, I have a holiday home which I let out on various platforms I had a booking this year where the guest paid a deposit. She cancelled because of coronavirus and has refused to defer the booking (even through I have given her a two year window to rebook!) as she says she cant organise another weekend with her family in all that time. She has put through a court claim for the deposit using a 'frustration of contract - 'frustrated contracts act 1943 ' argument. I want to contest - does she stand a chance with this claim and what do I say in my defence?
JA: Where are you? It matters because laws vary by location.
Customer: UK
JA: What steps have you taken so far?
Customer: None in defence to the money claim - I have just offered her this 2 year window to rebook which everybody else is v happy with
JA: Anything else you want the Lawyer to know before I connect you?
Customer: Nope thats it!

Hello, this is Jim, a dual-qualified lawyer (UK & Republic of Ireland) and happy to help you today.

Customer: replied 1 year ago.
Hi Jim, have you seen the issues above
Customer: replied 1 year ago.
I'm OK with a written response

Yes, I am just typing out the answer with my thoughts - it's a positive answer for you, but if you can give me a couple of minutes

Customer: replied 1 year ago.
No problem - I need to go do something for 10 mins - hope thats OK!

No problem - the answer will be ready for when you're back at the computer

I will address the claim and her allegation of frustration of contract first.

Frustration only occurs if the contractual terms are "impossible" to perform - as such, there is a high evidential bar to this and the courts are generally reluctant to confirm a contract is impossible. What the court would expect from you in the Covid situatoin is simply to offer an alternative date for the claimant.

There are essential terms in the contract - they pay money to you, you provide the accommodation to them on a specific date. There is no cooling-off period for a holiday booking on a specific date, which then begs the question of whether this contract is void due to the current situation.

If one of these essential terms is not able to be carried out, in this case due to an external event being the pandemic, you can refuse a refund as long as you offered an alternative date.

The key term here is "force majeure", or an "act of God" clause - meaning that if performance of the contract is impossible then the parties can agree to suspend their obligations - for the duration of the force majeure, or in this case, for as long as the service cannot be carried out due to the lock down.

Therefore, you were within your rights to offer a future date (after the lock down, which will not last indefinitely) and when you are then in a position to resume your contractual obligations and provide the service.

The guest cannot attend for the holiday due to travel restrictions, which means you cannot let the property to them - this is outside of your control. You can therefore agree to postpone the date unless your contract allows a refund in this situation.

In terms of court proceedings, your defence needs to say that this is not a situation where the contract was frustrated. This is because the external event meant a temporary inability to offer the accommodation (not a permanent inability to do so). You would therefore say that force majeure applies and that you offered an alternative window - meaning performance of the contract could still go ahead but the claimant chose not to accept your proposal. Therefore, the claimant has terminated the contract on their own accord. You will also say in your defence that others are happy with being offered a 2 year window. Plus, with SARS and MERS outbreaks previously, there is an argument the claimant should have either taken out travel disruption insurance, or paid via credit card to ensure a similar event such as Covid was covered. You need to say in your defence you put the claimant to strict proof that this is a case of frustration of contract when a two year window to rebook has been offered.

I hope this helps? If you would kindly leave me a 5 star rating (at the top of your screen), the question will stay open and any follow up questions are welcomed.

Many thanks,

Jim

JimLawyer and 3 other Law Specialists are ready to help you
Customer: replied 1 year ago.
This looks great - thank you so much - I will spend some time now going through it all and prepare my response to the claim. I'll contact you again if I need to - many thanks again. I will defo 5 star rate you!

Yes, no problem at all - if they used the money claim online site, the court should have given you login details to enter a defence. If not and it was paper-based, you can use the attached document for the defence. Ensure you address each allegation in the particulars of claim (see link: https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part16#16.5)