Exiting a building contract - deposit paid
Discussion
I'm currently attempting to get a new garage built, I have paid a 30% deposit to the garage firm - with the expecation of a build commencing in November 2022, and told it would complete before Christmas.
Communication has been sketchy, I only get updates if I chase repeatedly - the build has been put back twice now, most recently I was told "Hoping to start your build in early Feb".
I've been pondering this, and have now started to look at other options as I am losing confidence in them to actually deliver on this.
Based on the contract below, is it reasonable to expect my deposit to be returned if I cancel? (After all, they are the ones who have breached the initial agreement vis lead times)
Contract:
TERMS OF BUSINESS
Please read these terms of business carefully and retain a copy of them for future reference.
EXPLANATION OF CERTAIN WORDS: “We”, “us”, refers to xxxxxx Limited, xxx, xxxx, xxxxxx
xxxxx, “you” means the customer we make our agreement with and it includes a person who we believe is acting with your
authority; “goods” and “delivery address” mean the goods and delivery address stated in our acknowledgement of your order.
UNDERSTANDING THE CONTRACT: These terms of business apply to all goods and services we supply. No contract exists
between us until we have received and accepted your order and send you our acknowledgement in writing. Once we do so, there is a
binding legal contract between us.
CANCELLING THE CONTRACT: You cannot cancel this contract (unless we have broken the contract) except with our written
consent. If we accept your cancellation your deposit and any other payments already made at the time of cancellation may not be
refunded. This is because the goods are made to special order.
DELIVERING THE GOODS: The goods you order will be delivered to the delivery address. You agree to provide a safe and suitable
access from a hard roadway, not requiring excessive carrying. Where the goods require erection or installation you agree to first
construct, at your expense, a suitable base or foundation to our reasonable satisfaction.
If there is no one at the address who can accept delivery of the goods, or if for any other reason the goods cannot be delivered, you will
be notified of an alternative delivery date or a place to collect the goods. If it is your fault that we cannot deliver we may make a
reasonable charge to cover our additional costs. Customers who assist with deliveries do so at their own risk.
Every reasonable effort will be made to deliver the goods on agreed dates. However, we will not be liable for any loss or damage
suffered by you through any reasonable or unavoidable delay in delivery. In the case of a delay, we will inform you as soon as
possible.
You will bear the risk of loss of, or damage to, the goods once they have been delivered to the delivery address. This includes goods
awaiting assembly, erection or installation whether or not you have paid for them.
We ask you to carefully examine goods immediately on receipt of them and, if you are not entirely satisfied, to notify us in writing
within 3 days of your receipt of the goods, so that we can take any necessary steps to rectify defects. Your legal rights are not affected.
PAYING FOR THE GOODS: You must pay the price to us in the manner and instalments set out in our acknowledgement of your
order. Time of payment is of the essence of this contract. This means that if you do not pay on time we have the right to end the
contract and take all steps necessary to recover our loss including disposing of the goods. In the event of unforeseen difficulties arising,
or any other circumstantial changes, the quotation/order price or estimated cost may be revised to reflect the situation in hand.
OWNERSHIP OF THE GOODS: The goods remain our property until you have paid all sums due to us under this contract. So long as
the goods remain our property you must hold them securely on our behalf, ensure that they can be identified at all times as our property,
insure them and allow us access to them in order to dismantle, repossess or inspect them.
DEFECTS IN THE GOODS: All goods we supply are warranted free from defects for 12 months from the date of supply. This
warranty does not affect your legal rights as a consumer. Naturally occurring drying splits and shakes are not considered as defects.
This warranty does not apply to any defect in the goods arising from unfair wear and tear, wilful damage, accident, negligence by you
or any third party, use otherwise than as recommended by us, failure to follow our instructions, or any alteration or repair carried out
without our approval.
We depend on our own suppliers for certain materials, particularly timber or steel, who may from time to time vary the design or
specification of their products, and the goods may differ in minor detail from those shown or described in our brochures or descriptions
given to you.
If the goods supplied to you develop a defect while under warranty, or you have any other complain about the goods, you should notify
us in writing at the address given above.
If the goods have been constructed to a design or specification supplied by you, we will not be liable for any defect in the goods or if
the goods fail to serve their intended purpose, so long as we have constructed them with reasonable care and skill to the design or
specification you have supplied.
LIMITING OUR RESPONSIBILITY TO YOU: In business to business transactions, we do not accept liability for indirect or
consequential loss, such as loss of profits, business, revenue, anticipated savings, or any other form of economic loss.
We do not accept liability for any loss or other claims for compensation arising from any designs or instructions supplied by you which
are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or
any other fault of yours.
We will not be liable if, in spite of our reasonable efforts, we cannot do what we have promised because of something which is beyond
our reasonable control (such as fire, flood, exceptionally severe weather, industrial disputes, breakdowns of plant, government controls,
or disruption to supplies).
DATA PROTECTION: We will take all reasonable precautions to keep the details of your order and payment secure, but unless we are
ourselves at fault, we will not be liable for unauthorised access to information supplied by you. We will only use the information you
provide about yourself for the purpose of fulfilling your order, unless you agree otherwise. You can correct any information about you,
or ask for information about you to be deleted, by giving written notice to us at the address given above.
RIGHTS IN DESIGNS AND THIRD PARTY RIGHTS: All rights in the design of goods we have designed (even though designed to
your commission) belong to us. You must not copy or reproduce such goods (or any part of them) without our prior written permission.
Third parties cannot benefit from our agreement with you under the Contracts (Rights of Third Parties) Act 1999.
APPLICABLE LAW: Our contract with you is governed by the Law of England. We each acknowledge that an English Court can
hear any case between us.
RAW MATERIAL COST FLUCTUATIONS
Due to the ongoing market fluctuations in the price of raw materials, we reserve the right to increase these costs in line with any market increase.
However, we will notify you of any increase incurred before commencement of works.
Communication has been sketchy, I only get updates if I chase repeatedly - the build has been put back twice now, most recently I was told "Hoping to start your build in early Feb".
I've been pondering this, and have now started to look at other options as I am losing confidence in them to actually deliver on this.
Based on the contract below, is it reasonable to expect my deposit to be returned if I cancel? (After all, they are the ones who have breached the initial agreement vis lead times)
Contract:
TERMS OF BUSINESS
Please read these terms of business carefully and retain a copy of them for future reference.
EXPLANATION OF CERTAIN WORDS: “We”, “us”, refers to xxxxxx Limited, xxx, xxxx, xxxxxx
xxxxx, “you” means the customer we make our agreement with and it includes a person who we believe is acting with your
authority; “goods” and “delivery address” mean the goods and delivery address stated in our acknowledgement of your order.
UNDERSTANDING THE CONTRACT: These terms of business apply to all goods and services we supply. No contract exists
between us until we have received and accepted your order and send you our acknowledgement in writing. Once we do so, there is a
binding legal contract between us.
CANCELLING THE CONTRACT: You cannot cancel this contract (unless we have broken the contract) except with our written
consent. If we accept your cancellation your deposit and any other payments already made at the time of cancellation may not be
refunded. This is because the goods are made to special order.
DELIVERING THE GOODS: The goods you order will be delivered to the delivery address. You agree to provide a safe and suitable
access from a hard roadway, not requiring excessive carrying. Where the goods require erection or installation you agree to first
construct, at your expense, a suitable base or foundation to our reasonable satisfaction.
If there is no one at the address who can accept delivery of the goods, or if for any other reason the goods cannot be delivered, you will
be notified of an alternative delivery date or a place to collect the goods. If it is your fault that we cannot deliver we may make a
reasonable charge to cover our additional costs. Customers who assist with deliveries do so at their own risk.
Every reasonable effort will be made to deliver the goods on agreed dates. However, we will not be liable for any loss or damage
suffered by you through any reasonable or unavoidable delay in delivery. In the case of a delay, we will inform you as soon as
possible.
You will bear the risk of loss of, or damage to, the goods once they have been delivered to the delivery address. This includes goods
awaiting assembly, erection or installation whether or not you have paid for them.
We ask you to carefully examine goods immediately on receipt of them and, if you are not entirely satisfied, to notify us in writing
within 3 days of your receipt of the goods, so that we can take any necessary steps to rectify defects. Your legal rights are not affected.
PAYING FOR THE GOODS: You must pay the price to us in the manner and instalments set out in our acknowledgement of your
order. Time of payment is of the essence of this contract. This means that if you do not pay on time we have the right to end the
contract and take all steps necessary to recover our loss including disposing of the goods. In the event of unforeseen difficulties arising,
or any other circumstantial changes, the quotation/order price or estimated cost may be revised to reflect the situation in hand.
OWNERSHIP OF THE GOODS: The goods remain our property until you have paid all sums due to us under this contract. So long as
the goods remain our property you must hold them securely on our behalf, ensure that they can be identified at all times as our property,
insure them and allow us access to them in order to dismantle, repossess or inspect them.
DEFECTS IN THE GOODS: All goods we supply are warranted free from defects for 12 months from the date of supply. This
warranty does not affect your legal rights as a consumer. Naturally occurring drying splits and shakes are not considered as defects.
This warranty does not apply to any defect in the goods arising from unfair wear and tear, wilful damage, accident, negligence by you
or any third party, use otherwise than as recommended by us, failure to follow our instructions, or any alteration or repair carried out
without our approval.
We depend on our own suppliers for certain materials, particularly timber or steel, who may from time to time vary the design or
specification of their products, and the goods may differ in minor detail from those shown or described in our brochures or descriptions
given to you.
If the goods supplied to you develop a defect while under warranty, or you have any other complain about the goods, you should notify
us in writing at the address given above.
If the goods have been constructed to a design or specification supplied by you, we will not be liable for any defect in the goods or if
the goods fail to serve their intended purpose, so long as we have constructed them with reasonable care and skill to the design or
specification you have supplied.
LIMITING OUR RESPONSIBILITY TO YOU: In business to business transactions, we do not accept liability for indirect or
consequential loss, such as loss of profits, business, revenue, anticipated savings, or any other form of economic loss.
We do not accept liability for any loss or other claims for compensation arising from any designs or instructions supplied by you which
are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or
any other fault of yours.
We will not be liable if, in spite of our reasonable efforts, we cannot do what we have promised because of something which is beyond
our reasonable control (such as fire, flood, exceptionally severe weather, industrial disputes, breakdowns of plant, government controls,
or disruption to supplies).
DATA PROTECTION: We will take all reasonable precautions to keep the details of your order and payment secure, but unless we are
ourselves at fault, we will not be liable for unauthorised access to information supplied by you. We will only use the information you
provide about yourself for the purpose of fulfilling your order, unless you agree otherwise. You can correct any information about you,
or ask for information about you to be deleted, by giving written notice to us at the address given above.
RIGHTS IN DESIGNS AND THIRD PARTY RIGHTS: All rights in the design of goods we have designed (even though designed to
your commission) belong to us. You must not copy or reproduce such goods (or any part of them) without our prior written permission.
Third parties cannot benefit from our agreement with you under the Contracts (Rights of Third Parties) Act 1999.
APPLICABLE LAW: Our contract with you is governed by the Law of England. We each acknowledge that an English Court can
hear any case between us.
RAW MATERIAL COST FLUCTUATIONS
Due to the ongoing market fluctuations in the price of raw materials, we reserve the right to increase these costs in line with any market increase.
However, we will notify you of any increase incurred before commencement of works.
2nd clause: did they send you a written acknowledgment?
Either way, its a very odd contract in the first place & you will only know if it stands up if you go and see a solicitor
If I'd been presented with that before handing over money it would have gone elsewhere or it would still been in my bank account (!)
Either way, its a very odd contract in the first place & you will only know if it stands up if you go and see a solicitor
If I'd been presented with that before handing over money it would have gone elsewhere or it would still been in my bank account (!)
Edited by Wombat3 on Wednesday 11th January 16:45
BrettMRC said:
BertBert said:
OP, which term do you think they have breached?
I was going to say breach of their agreed construction timeframe, but canny sods that they are I don't appear to have that in writing from them anywhere.Need to go back in time 5 months and give my head a wobble...
In similar circs of extensive delays to a project (was due to take 2 weeks in August to undertake and complete, but was still going in mid December), after much chasing correspondence and rather unpleasant phone calls, I declared time being of the essence (which I researched at the time as being possible). Not sure it really helped, but certainly upped the level of unpleasantness in the calls! They "completed" the new bathroom on Christmas eve, but I had to fix two major leaks in the new year with someone else.
I've just finished going through the requirements with a potential new provider.
They were horrified at the spec quoted by the incumbent, picked up on several things I've missed - and have pointed out that the materials proposed won't meet standards...
...additional due diligence has revealed the incumbent firm has gone under 3 times.
Potentially an expensive lesson learnt here!
They were horrified at the spec quoted by the incumbent, picked up on several things I've missed - and have pointed out that the materials proposed won't meet standards...
...additional due diligence has revealed the incumbent firm has gone under 3 times.
Potentially an expensive lesson learnt here!
GT03ROB said:
Your deposit is toast.
Even if you cancel They reserve the right to retain any monies paid. For a customer its a bonkers contract to sign.
We have unfair contract terms legislation to protect consumers - terms can be voided if they are weighed heavily against the consumer.Even if you cancel They reserve the right to retain any monies paid. For a customer its a bonkers contract to sign.
Terminator X said:
Oh dear #popcorn
TX.
I’d say the ‘TX’ sign-off is the most useful part of your post! TX.
To the OP, if they’ve clocked up the plans that badly I’d suck up the loss and go with another firm - however I’d definitely put some ‘fight’ in getting the deposit back due to the delay.
Is it worth calling their bluff and giving them 14 days to begin, or you want to cancel?
Paul Lazzaro said:
If you can demonstrate their proposals don't meet current legislation, then I'd think you're in a stronger position to cancel and push for a full refund of your deposit. Actually getting the refund might be more difficult though.
This is definitely a sound basis on which to cancel. However part 2 of this remains. Mojooo said:
GT03ROB said:
Your deposit is toast.
Even if you cancel They reserve the right to retain any monies paid. For a customer its a bonkers contract to sign.
We have unfair contract terms legislation to protect consumers - terms can be voided if they are weighed heavily against the consumer.Even if you cancel They reserve the right to retain any monies paid. For a customer its a bonkers contract to sign.
BrettMRC said:
CANCELLING THE CONTRACT: You cannot cancel this contract (unless we have broken the contract) except with our written
consent. If we accept your cancellation your deposit and any other payments already made at the time of cancellation may not be refunded. This is because the goods are made to special order.
Unless there’s other parts of the contract you’ve not copied I think this is the clause that will most effect your cancellation…. Yes you can cancel, but any money you’ve paid may not be refunded.consent. If we accept your cancellation your deposit and any other payments already made at the time of cancellation may not be refunded. This is because the goods are made to special order.
That’s “may not” not “will not”.
So it’s down to how much you can negotiate back from them.
(Time, specs etc etc are leverage point not contractual points… unless in the contract they say we will install by xyz or that their building will comply with abc regulations)
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