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I'd like to know if contract laws (right of rescission, consumers right to cancel order without penalty....) applies to the purchase of furniture, specifically in Vermont. We put down a VISA deposit on some furniture, however we have since learned that some consumers have had problems with the major piece of furniture (a bed) we were buying. Although we ordered a standard bed, the merchant had to order it from the factory and has it in stock now. The merchant refuses to give any of our $800 deposit back which is 22% of the total purchase price. -- Larry Bohen www.audiobooksonline.com
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"Larry Bohen" <lbohen@audiobooksonline.com> wrote:
I'd like to know if contract laws (right of rescission, consumers right to cancel order without penalty....) applies to the purchase of furniture, specifically in Vermont.
Well, as far as I'm aware Vermont has adopted the UCC, though I'm not familiar with their version of it.
We put down a VISA deposit on some furniture, however we have since learned that some consumers have had problems with the major piece of furniture (a bed) we were buying. Although we ordered a standard bed, the merchant had to order it from the factory and has it in stock now. The merchant refuses to give any of our $800 deposit back which is 22% of the total purchase price.
You are entitled to assurances that the bed you purchased will work properly. If they don't give you the assurances, I think you'd be justified cancelling. [And getting your deposit back.] If you take delivery of the bed and it is defective, you have the right to have them make it right. But you don't have the right to cancel the contract just because you have heard something about "some" other purchasers. Under the circumstances (whether it is or is not reasonable) they're probably not required to return your deposit. Stu
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I'd like to know if contract laws (right of rescission, consumers right to cancel order without penalty....) applies to the purchase of furniture, specifically in Vermont.
I don't know anything WRT Vermont Contract Law, but...
We put down a VISA deposit on some furniture,
[Snip]
The merchant refuses to give any of our $800 deposit back which is 22% of the total purchase price.
If it's been Less Than 60 Days since this $800 Deposit *First Appeared on your Monthly VISA Statement*, simply make a WRITTEN Demand to the Card Issuing Bank for a CHARGEBACK of the $800 Deposit...
-- Larry Bohen
Naughtius "The Power Of Plastic" Maximus
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It seems "Larry Bohen" wrote in misc.legal.moderated:
I'd like to know if contract laws (right of rescission, consumers right to cancel order without penalty....) applies to the purchase of furniture, specifically in Vermont.
Contract law _does_ apply in Vermont. Rights to cancel are _not_ part of contract law but in fact are statutory limitations on contracts. Federal law says you have a three-business-day right to cancel under certain circumstances, if the sale was not at the regular place of business of the seller. (There are certain exceptions, of course.) Last I heard, Federal law applies even in Vermont. :-) Look up "cooling-off period" at the FTC Web site. However, there is no general "right to cancel order without penalty"; that's a myth like the idea that a store must accept returns of non-defective merchandise. Many businesses do allow either or both of those, but it's their choice for goodwill and is not a legal requirement.
We put down a VISA deposit on some furniture, however we have since learned that some consumers have had problems with the major piece of furniture (a bed) we were buying.
It's not strictly a legal matter, but may make you feel better: Every product, no matter how good, has someone who is dissatisfied. The fact that some people doesn't like their beds does not mean you won't be happy with yours.
Although we ordered a standard bed, the merchant had to order it from the factory and has it in stock now. The merchant refuses to give any of our $800 deposit back which is 22% of the total purchase price.
From this it sounds as though the three business days have long
passed. You ordered something and paid a deposit to seal the deal; the merchant special ordered it. There is a valid contract: the merchant must deliver the bed, and you must pay the balance. The merchant can't say "I've decided not to sell you the bed; here's your deposit back", and you can't say "I've decided I don't want it; gimme my deposit back." Either of those could be done only if both parties agree, and the merchant apparently does not agree. If _your_ bed (not someone else's) is defective, then and only then you can refuse it. Even so, the merchant has the choice to refund your money or get you a non-defective bed. Bottom line: you made an agreement. If the merchant delivers what was promised, you must live up to your end of the bargain. -- If you e-mail me from a fake address, your fingers will drop off. I am not a lawyer; this is not legal advice. When you read anything legal on the net, always verify it on your own, in light of your particular circumstances. You may also need to consult a lawyer. Stan Brown, Oak Road Systems, Cortland County, New York, USA http://OakRoadSystems.com
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In article <fiq350lrlr8b3pf0d39s0uor9vl1bf0pol@4ax.com>, the_stan_brown@fastmail.fm (Stan Brown) writes: [...] | You ordered something and paid a deposit to seal the deal; | the merchant special ordered it. There is a valid contract: the | merchant must deliver the bed, and you must pay the balance. Is that description (mutual promises) really characteristic of such a contract or is it more of a unilateral promise on the part of the customer to pay if the merchant delivers? | The | merchant can't say "I've decided not to sell you the bed; here's | your deposit back", and you can't say "I've decided I don't want it; | gimme my deposit back." Either of those could be done only if both | parties agree, and the merchant apparently does not agree. Yet as a practical matter, merchants can and do back out of such transactions (e.g., ``sorry, I can't get the item after all'') and seem to feel no obligation beyond return of the deposit, protests that the item is still available elsewhere notwithstanding. (Sometimes merchants even push the envelope by trying to convince the customer to accept a substitute product against the deposit, dragging out attempts to receive a cash refund.) | If _your_ bed (not someone else's) is defective, then and only then | you can refuse it. Even so, the merchant has the choice to refund | your money or get you a non-defective bed. Absent the consent of the customer, why does the merchant have the unilateral choice to refund the money in this case? Does delivery of one defective bed relieve him of the obligation to deliver a non-defective bed, or did he perhaps never have that obligation in the first place? Maybe the merchant's only obligation under the contract was to make a nominal effort to obtain the item. In cases where the extent of this effort is totally at the discretion of the merchant I would be tempted to ask whether there is consideration on the part of the merchant. | Bottom line: you made an agreement. If the merchant delivers what | was promised, you must live up to your end of the bargain. This would seem to be a better description of the typical consumer retail order. If the merchant delivers the customer is obligated to pay. If the merchant does not deliver the customer has little recourse beyond a refund. Dan Lanciani ddl@danlan.*com
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If it's been Less Than 60 Days since this $800 Deposit *First Appeared
on
your Monthly VISA Statement*, simply make a WRITTEN Demand to the Card Issuing Bank for a CHARGEBACK of the $800 Deposit...
You can demand it, but you won't win. You have no right to cancel the order (well, I haven't seen the contract, but presumably you have no right), so VISA will decide against you. Having said that, the 4 times I have asked for chargebacks the merchants didn't respond so I prevailed. I wound up with 2 free computers. So, maybe it is worth a try.
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It seems "Dan Lanciani" wrote in misc.legal.moderated:
In article <fiq350lrlr8b3pf0d39s0uor9vl1bf0pol@4ax.com>, the_stan_brown@fastmail.fm (Stan Brown) writes: | You ordered something and paid a deposit to seal the deal; | the merchant special ordered it. There is a valid contract: the | merchant must deliver the bed, and you must pay the balance. Is that description (mutual promises) really characteristic of such a contract or is it more of a unilateral promise on the part of the customer to pay if the merchant delivers?
M = merchant; C = customer The former, I believe. A "promise to pay if M delivers" might be a contract, or a solicitation of an offer to sell, or anything else; I don't know. But C paid a deposit (as folks buying furniture usually do). That is "consideration", and there is a contract. Reminder: I'm not a lawyer, and as always would appreciate any appropriate corrections from one.
| The | merchant can't say "I've decided not to sell you the bed; here's | your deposit back", and you can't say "I've decided I don't want it; | gimme my deposit back." Either of those could be done only if both | parties agree, and the merchant apparently does not agree. Yet as a practical matter, merchants can and do back out of such transactions (e.g., ``sorry, I can't get the item after all'') and seem to feel no obligation beyond return of the deposit, protests that the item is still available elsewhere notwithstanding. (Sometimes merchants even push the envelope by trying to convince the customer to accept a substitute product against the deposit, dragging out attempts to receive a cash refund.)
Legally, M can always try to renegotiate the contract (offer to deliver substitute merchandise); C can agree to change terms or insist that the original contract be honored. It is common law, I believe, that an _impossible_ contract is void. If through circumstances beyond M's control M can't actually get the merchandise to sell it, then the contract is void and M refunds the deposit because there is no legal right to keep it. I don't understand what you mean by "protests that the item is still available elsewhere". If the manufacturer has no more, it has no more. If it's a _distributor_ issue (and I have no idea of the details of the wholesale furniture market), then yes: M is legally obliged to find an alternative source if possible and -- important caveat -- if the sales contract itself doesn't give an out if the item is unavailable through usual channels. If M refuses to honor the contract, C's only option is to sue.
| If _your_ bed (not someone else's) is defective, then and only then | you can refuse it. Even so, the merchant has the choice to refund | your money or get you a non-defective bed. Absent the consent of the customer, why does the merchant have the unilateral choice to refund the money in this case?
I think I was in error, or else left out an important qualification. If a non-defective bed is available, M may choose to fulfill the contract or offer to void the sale. M can't void the sale unilaterally unless a non-defective bed isn't available -- and in that case the sale is automatically void. So either way M doesn't have a unilateral choice.
| Bottom line: you made an agreement. If the merchant delivers what | was promised, you must live up to your end of the bargain. This would seem to be a better description of the typical consumer retail order. If the merchant delivers the customer is obligated to pay. If the merchant does not deliver the customer has little recourse beyond a refund.
Legally C can sue for specific performance, or can acquire the item elsewhere and sue M for the price difference. Practically it's likely to cost too much to pursue either claim, so as a practical matter I agree with you. -- If you e-mail me from a fake address, your fingers will drop off. I am not a lawyer; this is not legal advice. When you read anything legal on the net, always verify it on your own, in light of your particular circumstances. You may also need to consult a lawyer. Stan Brown, Oak Road Systems, Cortland County, New York, USA http://OakRoadSystems.com
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Stan Brown <the_stan_brown@fastmail.fm> wrote:
It seems "Dan Lanciani" wrote in misc.legal.moderated: The former, I believe. A "promise to pay if M delivers" might be a contract, or a solicitation of an offer to sell, or anything else; I don't know.
The deal could have been, "I'll pay for it if you deliver it." But that's very unlikely. More likely it's, "I promise to pay and you promise to deliver." The promises alone are sufficient consideration for each other, and the bilateral contract is formed on that basis. Yet as a practical matter, merchants can and do back out of such transactions (e.g., ``sorry, I can't get the item after all'') and seem to feel no obligation beyond return of the deposit, protests that the item is still available elsewhere notwithstanding. If the merchant really can't get the merchandise, he may be excused on the basis of impossibility.
It is common law, I believe, that an _impossible_ contract is void. If through circumstances beyond M's control M can't actually get the merchandise to sell it, then the contract is void and M refunds the deposit because there is no legal right to keep it.
The contract isn't void, but voidable. And impossibility means actually impossible rather than just much more difficult. So if the merchant's supplier in Indiana burns down, but he can still get the bed from another manufacturer in Taiwan but it will cost twice as much, that may not justify termination of the contract. This would seem to be a better description of the typical consumer retail order. If the merchant delivers the customer is obligated to pay. If the merchant does not deliver the customer has little recourse beyond a refund.
Legally C can sue for specific performance, or can acquire the item elsewhere and sue M for the price difference. Practically it's likely to cost too much to pursue either claim, so as a practical matter I agree with you.
If it's a consumer transaction in California, the Consumer Legal Remedies Act provides for attorneys fees even if there is not a contract that allows them. So the consumer is more likely to get what he paid for. Stu
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In article <vqsd50pqd856dg7sfvdc1jgnm65nq6kbbu@4ax.com>, the_stan_brown@fastmail.fm (Stan Brown) writes: |It seems "Dan Lanciani" wrote in misc.legal.moderated: |> |>In article <fiq350lrlr8b3pf0d39s0uor9vl1bf0pol@4ax.com>, |>the_stan_brown@fastmail.fm (Stan Brown) writes: |>| You ordered something and paid a deposit to seal the deal; |>| the merchant special ordered it. There is a valid contract: the |>| merchant must deliver the bed, and you must pay the balance. |> |>Is that description (mutual promises) really characteristic of such a contract |>or is it more of a unilateral promise on the part of the customer to pay if |>the merchant delivers? ||M = merchant; C = customer ||The former, I believe. I would say that the orders I've personally signed are more like the latter. They generally say that the merchant will try to obtain the item but guarantees nothing. I promise to pay if/when he delivers--often with no specified limit on the time-to-deliver. |A "promise to pay if M delivers" might be a |contract, or a solicitation of an offer to sell, or anything else; I |don't know. Actually, that is where I was going, so I'll skip ahead for a moment. Abstractly, is an agreement of the form: "I may perform x. If I perform x, you agree to perform y" a valid contract even though there is no consideration on my part? Does it matter if you throw in some monetary consideration on your part? Does it matter if I do indeed perform some acts (with a potential cost to me) in furtherance of x--acts which could have been consideration if in fact they were required by the agreement? |But C paid a deposit (as folks buying furniture usually do). That is |"consideration", and there is a contract. I was under the impression that a contract requires consideration on both sides. Moreover (and this is the part I'd like to clarify) I thought that the consideration has to be a part of the agreement such that one party has a right to enforce performance by the other. Now I realize that consideration does not have to flow _to_ the other party. The incidental costs, lost opportunity, etc. of obtaining a special-order piece of furniture look like possible consideration to me; however, if those items are not actually required of the merchant by the agreement, are they consideration? |Reminder: I'm not a lawyer, and as always would appreciate any |appropriate corrections from one. Ditto to both. [...] |If through circumstances beyond M's control M can't actually get the |merchandise to sell it, then the contract is void and M refunds the |deposit because there is no legal right to keep it. What bothers me here is that the notion of "can't actually get" is ill-defined: there is more of a continuum of (un)availability. Imagine at one extreme a unique work of art that is destroyed or lost and at the other end a standard production bed that didn't move from the warehouse because someone entered the wrong codes on the computer. In the middle we have cases like an AV component which, while still in production, has become both scarce and desirable enough that it commands greater than the list price specified in the order. If lack of availability voids the agreement and if the determination of availability lies with the merchant, I'm hard pressed to find anything that the merchant has given up as consideration. At worst the merchant comes out a little ahead since he (typically) keeps any interest earned on the deposit. |I don't understand what you mean by "protests that the item is still |available elsewhere". E.g., ``the store on the other side of the mall will get it for me, but for $100 more than the price at which you agreed to sell it.'' (Note that I'm considering experiences with various non-furniture products. It may not be common to find an identical bed--especially if it is a store brand--elsewhere. I don't think the nature of the merchandise significantly changes the analysis, but I could well be wrong.) Dan Lanciani ddl@danlan.*com
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In article <updh50ppe6pslmri0rknt4281fv8jk3o41@4ax.com>, spamtrap@lexregia.com (Stuart Bronstein) writes: | Stan Brown <the_stan_brown@fastmail.fm> wrote: | > It seems "Dan Lanciani" wrote in misc.legal.moderated: | >>the_stan_brown@fastmail.fm (Stan Brown) writes: | | >>| You ordered something and paid a deposit to seal the deal; | >>| the merchant special ordered it. There is a valid contract: | >>| the merchant must deliver the bed, and you must pay the | >>| balance. | >> | >>Is that description (mutual promises) really characteristic of | >>such a contract or is it more of a unilateral promise on the | >>part of the customer to pay if the merchant delivers? | > | > The former, I believe. A "promise to pay if M delivers" might be | > a contract, or a solicitation of an offer to sell, or anything | > else; I don't know. | | The deal could have been, "I'll pay for it if you deliver it." But | that's very unlikely. More likely it's, "I promise to pay and you | promise to deliver." Are you basing those likelyhoods on actual order agreements that you've read which explicitly include such a promise to deliver or on a theory that such a promise is implicit even if absent from the written agreement? | The promises alone are sufficient | consideration for each other, and the bilateral contract is formed | on that basis. I agree that those promises are sufficient consideration. My problem is that I've never seen an order agreement with anything like a promise of delivery. Even if we assume that agreements that remain silent on the matter contain an implicit obligation of delivery (and I find this something of a stretch since such agreements usually list the customer's obligations at great length) I'm still curious about the status of versions that explicitly disclaim any obligation to deliver. Dan Lanciani ddl@danlan.*com
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ddl@danlan.*com (Dan Lanciani) wrote:
spamtrap@lexregia.com (Stuart Bronstein) writes: | Stan Brown <the_stan_brown@fastmail.fm> wrote: | > "Dan Lanciani" wrote in misc.legal.moderated: | >>the_stan_brown@fastmail.fm (Stan Brown) writes: | | >>| You ordered something and paid a deposit to seal the deal; | >>| the merchant special ordered it. There is a valid contract: | >>| the merchant must deliver the bed, and you must pay the | >>| balance. | >> | >>Is that description (mutual promises) really characteristic | >>of such a contract or is it more of a unilateral promise on | >>the part of the customer to pay if the merchant delivers? | > | > The former, I believe. A "promise to pay if M delivers" might | > be a contract, or a solicitation of an offer to sell, or | > anything else; I don't know. | | The deal could have been, "I'll pay for it if you deliver it." | But that's very unlikely. More likely it's, "I promise to pay | and you promise to deliver." Are you basing those likelyhoods on actual order agreements that you've read which explicitly include such a promise to deliver or on a theory that such a promise is implicit even if absent from the written agreement?
I'm basing that on normal and common practices I have observed over the years. I have never heard of a situatuation in which someone ordered a product with the understanding that it may or may not be delivered on the whim of the supplier. Unless there was a promise to deliver, I'd certainly never order anything that I actually wanted, on the basis that it may or may not ever come and I couldn't get one elsehwere because I just may (or may not) end up with two of them. That makes no sense to me.
| The promises alone are sufficient | consideration for each other, and the bilateral contract is | formed on that basis. I agree that those promises are sufficient consideration. My problem is that I've never seen an order agreement with anything like a promise of delivery. Even if we assume that agreements that remain silent on the matter contain an implicit obligation of delivery (and I find this something of a stretch since such agreements usually list the customer's obligations at great length) I'm still curious about the status of versions that explicitly disclaim any obligation to deliver.
In my experience buyers are generally told that they can expect delivery in x weeks, which, to me, is a promise to exert all reasonable efforts to make delivery. Would you ever buy anything when there was an explicit term that said, "we will deliver only if we feel like it, when we feel like it"? Certainly there are situations in which a supplier isn't sure he can get the product within a certain time, and that can become part of the contract. But it's not a unilateral contract unless delivery is up to the seller's whim, not his practical ability to deliver. Stu
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In article <n33u505a6k032tbt221bkkssudplkj0jda@4ax.com>, "Stuart A. Bronstein" <spamtrap@lexregia.com> writes: |ddl@danlan.*com (Dan Lanciani) wrote: |> spamtrap@lexregia.com (Stuart Bronstein) writes: |>| Stan Brown <the_stan_brown@fastmail.fm> wrote: |>| > "Dan Lanciani" wrote in misc.legal.moderated: |>| >>the_stan_brown@fastmail.fm (Stan Brown) writes: |>| |>| >>| You ordered something and paid a deposit to seal the deal; |>| >>| the merchant special ordered it. There is a valid contract: |>| >>| the merchant must deliver the bed, and you must pay the |>| >>| balance. |>| >> |>| >>Is that description (mutual promises) really characteristic |>| >>of such a contract or is it more of a unilateral promise on |>| >>the part of the customer to pay if the merchant delivers? |>| > |>| > The former, I believe. A "promise to pay if M delivers" might |>| > be a contract, or a solicitation of an offer to sell, or |>| > anything else; I don't know. |>| |>| The deal could have been, "I'll pay for it if you deliver it." |>| But that's very unlikely. More likely it's, "I promise to pay |>| and you promise to deliver." |> |> Are you basing those likelyhoods on actual order agreements that |> you've read which explicitly include such a promise to deliver |> or on a theory that such a promise is implicit even if absent |> from the written agreement? ||I'm basing that on normal and common practices I have observed over |the years. The problem with this kind of observation is that in the normal and common cases the merchant eventually delivers or else if he doesn't the customer is so tired of the process that he lets the merchant back out without a fight. To infer that the promise of delivery exists I think we would have to look at cases where the merchant failed to deliver and the customer was able to legally compel performance or at least force the merchant to pay the difference in costs for the customer to acquire the product elsewhere. I'd be interested in such cases (especially if they served as easy-to-copy templates :). Given that we agree that the promises of delivery and purchase are sufficient consideration without a deposit, it might be handy to be able to reference such cases in the (seemingly ever more common) event of merchants who back out of not-even-special orders. |I have never heard of a situatuation in which someone |ordered a product with the understanding that it may or may not be |delivered on the whim of the supplier. The term ``whim'' makes light of what is not comical but merely one-sided. It isn't a matter of whim but of profit. Certainly in the normal case (i.e., barring dementia or such :) the merchant wants to make the sale provided it is in his best interest to do so. That means that he makes the profit he expects (he certainly does not want to take a loss) and he is able to obtain the item in the normal course of his business without expending undue resources in the process. Most of the time everything works out fine (at least assuming the merchant knows his business), but even when the item in question is regularly available and there is little chance of a problem I have yet to see an order agreement that promises delivery. Merchants just aren't willing to take the risk. When the item is *not* so regularly available the merchant would be foolish to take the risk. We as consumers deal with merchants on their terms because our only alternative is to do without the products. |Unless there was a promise |to deliver, I'd certainly never order anything that I actually |wanted, The next time you order something, see if you can get an explicit promise of delivery. Seriously. I'm not being facetious. Be sure that the promise is meaningful. A contract with a promise of delivery and an explicit limitation of remedy that amounts to refund of any deposit doesn't count. :) Of course, I'm talking about a normal consumer/merchant order. Commercial or business-to-business orders often deal with this issue more comprehensively and may well provide for specific (non-trivial) damages if the supplier fails to deliver. |on the basis that it may or may not ever come and I couldn't |get one elsehwere because I just may (or may not) end up with two of |them. That makes no sense to me. Maybe you can cancel the first order on finding the item elsewhere exactly because there never was a contract, in spite of what the merchant would like you to believe. |>| The promises alone are sufficient |>| consideration for each other, and the bilateral contract is |>| formed on that basis. |> |> I agree that those promises are sufficient consideration. My |> problem is that I've never seen an order agreement with anything |> like a promise of delivery. Even if we assume that agreements |> that remain silent on the matter contain an implicit obligation |> of delivery (and I find this something of a stretch since such |> agreements usually list the customer's obligations at great |> length) I'm still curious about the status of versions that |> explicitly disclaim any obligation to deliver. ||In my experience buyers are generally told that they can expect |delivery in x weeks, I think it's really stretching things to infer any kind of promise from an oral delivery date, especially since the order agreement always (in my experience) incorporates the standard clause that its terms cannot be modified by other than a written document signed by an authorized agent. However... |which, to me, is a promise to exert all |reasonable efforts to make delivery. This is essentially what I said in my original posting. There is no promise to deliver. A promise to exert all reasonable efforts to deliver is worth less than a promise to deliver. When the definition of ``reasonable'' is up to the merchant, such a promise is virtually worthless. I don't know at what point such a promise ceases to be sufficient consideration. |Would you ever buy anything when there was an explicit term that |said, "we will deliver only if we feel like it, when we feel like |it"? With that specific text? No. But only because of the childish wording that suggests that someone is playing games. (I don't think that's what you meant, but just in case.) With text more like, ``we make no promise that we will deliver, and we cannot provide a time of delivery,'' then yes, I would and I have. Have you ever tried to order any limited-availability product? I don't know about current examples, but this used to happen with Sony electronics. They would limit the number of units manufactured and dole them out in little batches through ``deserving'' channels. If you wanted one you went to your friendly dealer (Tweeter in my case), gave them a deposit, and waited hopefully. Sometimes you got the product, sometimes you didn't. Tweeter's order agreeme
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