I have a rather boring legal question I hope someone can please help me with.
As succinctly as possible: I sell fancy dress costumes, made to order, online.
I rcvd an order for 2 outfits, the delivery date estimated to the client was the 5th june.
On the 5th june, I contacted the client to tell them the outfits hadn't arrived from our fournisseur, and would be later than estimated. The client replied that that was fine, as long as they arrived for their party on the 14th, otherwise annuler the order. The outfits arrived chez nous and the client rcvd them the 13th june. All good.
On the 18th june, she contacted me to say they no longer needed the outfits and wanted a refund. I replied (nicely!) "as was explained to you (and legally), there are no returns on products sur mesure". This went on all week.
She's now decided to use the "Droit de résolution" which states that if the product arrived 7 days after estimated delivery, the order can be cancelled, and I have to refund the order & shipping, plus cost of return shipping.
My question: surely the fact that the client approved a new delivery date (in writing) comes into play here? I need to find that written somewhere before this goes any further, but I'm not understanding the code 100%...
So, posting in the hope that someone out there has some experience in this!
The relevant code is: http://www.legifrance.gouv.fr/affichCodeArticle.do?idArticle=LEGIARTI000018048016&cidTexte=LEGITEXT000006069565
Huge thanks in advance,
The origins and the path that mail followed to end in your inbox can be made visible by tapping into the raw format of the mail (see http://spamcop.net/fom-serve/cache/19.html for the instructions for your mail-programme). These raw codings are unique for every single mail and can be used as proof in case of litigation.
I'm doing business with French people for quit some time now LOL
On the very (precise) question of the proof that the client has accepted a retarded delivery date:
His/her written blabla mentioning he/she accept a later date of delivery… of course comes into play. It has the value of an “annexe” (add-on) to the “contract” (whatever it be written or oral). I.e. This consensual add-on has the same contractual value as the initial contract itself.
The later question: ‘Find that written somehere, in the code’: You won’t find it specifically concerning the “droit de rétention” since this is a general constitutional item, related to the notion of CONTRACT.
The more quizzy question comes eventually: I hope you have a real paper in hand, at least with a real manuscript hand-writed SIGNATURE. If so, except if the client denies the letter origin, or the signature, and given (let’s hope) the client’s phrasing is cristal clear @his/her autorisation given to you to postpone delivery… Then, you have much chances to see him/her retract his/her request in reimboursement or to win in concilliation or in court.
Otherwise, if, as probable you have an casual E-MAIL… He/she or his/her lawyer may contest the origin of the message. This will cause an expense to you (Ask for a counter-expertise, pay an expert.), and this process may succeed or not.
Thanks for that Anita. I didn't know the latter was call like that and I thought it was 30 days instead of 60.
Now that's properly thorough :)
The droit de rétraction is the standard right a customer has to change their mind and return an item (I allow 14 days for this, but I believe the law is 7 days). All postage fees at customers expense. Not applicable for products sur mesure.
The droit de résolution states that if an order arrives more than 7 days after estimated delivery, the client can cancel the order (within 60 days). ALL postage fees at seller's expense. Applicable (apparently) to products sur mesure.
Actually, don't know if it's been corrected yet but I believe we are talking about a
"droit de RÉTRACTION" here, not "résolution", right ? ;)
Any client doing business with an internet-based company has the right to return the goods within 7 working days after reception of these goods. (Art L120-21), even if they have been used during that period. Your only way out of it is the argument of "biens confectionnés sur mesure ou nettement personnalisés" (art 120-21-2)
If the suits have been really made to measure (in the sense of being of no use for a large part of the population) and the contracts you use mention this clause then I would send them a final letter (RRA) re-stating this and then leave further letters from this client unanswered because it's a waste of time. And if they're stubborn enough t's up to them to prove their case before a judge
I have dealt with a small handful of situations where people (French) have either called, E-mailed, or come knocking on the door, threatening to sue, for whatever reason (mostly because we often have bees hanging around our shed/car/home, we are beekeepers) In ALL cases, they just want to blow off steam, and when confronted with the "tell that to my solicitor", they seem to just buzz off.
even the over zealous are quiclky fobbed off as soon as they realise that the action will cost more than it's worth.
Thanks so much Zoe, they've called me everything under the sun (husband paled a few times when I asked for the english definition of a few of the choicer ones.)
I've not heard back since I wrote them this morn that I HAD delivered before the "more than 7 days" cut off and as far as I'm concerned it's OVER, so I'm going to leave it at that, and hopefully they will too. Fingers crossed!
Whatever way you look at it, harassing you and threatening through E-mails is all hot air, and they obviously are hoping you just give in. I would tell them that you are not returning it, point final, and that if they want to go further about it, to by all means, send you a solicitor's letter. I guarentee they will not go the whole hog with this, they are just chancing their arms.
you could also say that they are harassing you at this point in time, if they continue.
In any case, if you get mail, always keep proof of the date when sent, meaning DO keep the enveloppes of important documents. It shows a legal proof. When you can’t produce this, you are to be blamed.
My understanding of force majeure (from my days in insurance) is more an “act of god” or a civil war type proportions interruption… something a mere man - or woman in this case -has no control over.
I have NO knowledge of the French legal system at all, but surely if you have the money and she has the goods, you hold the upper hand. Go quiet and see what happens good luck
The Répression des Fraudes is part of the consumer body I quoted above. They should be helpful (the one in dept 50 certainly has been in my experience)
Time is money. How much was this order worth?
Ha! Great idea! Thoroughly fed up, it's been going on for WEEKS.
Hopefully the fact it didn't arrive "more than 7 days" late will be enough. Can't be putting up with these shenanigans!
In your original post, you stated "The client replied that that was fine, as long as they arrived for their party on the 14th, otherwise annuler the order. "
They agreed to the new date, provided it was on or before the 14th. They left it to you to decide to cancel the order, if that was not possible you were to cancel the order. The agreed date was therefore “on or before 14th”.
I don’t think you have any choice. You have to fight. Perhaps you can try to counterclaim compensation for them wasting your time!
Thanks for your advice Howard, another good point!
The law states:
Le consommateur peut dénoncer le contrat de vente d’un bien meuble ou de fourniture d’une prestation de services par lettre recommandée avec demande d’avis de réception en cas de dépassement de la date de livraison du bien ou d’exécution de la prestation excédant sept jours et non dû à un cas de force majeure.
I interpret “non dû à un cas de force majeure” as if the delivery delay is due to force majeure, the consumer doesn’t have the right to a cancel contract due to delay greater than 7 days.
The question is what is force majeure? I would say it is something that you have no control over ie delay by your supplier.