Legal Question in Consumer Law in California

Neither product nor refund received

I ordered a spa with a contract that stated delivery in 4-6 weeks. At week 8 or 9 I called the company and they said they hadn't ordered it yet and I would have to wait another month for it. At this time I cancelled the order and negotiated a discount on the 25% cancellation fee. A month later I have no refund whatsoever and the principals of the company continue to obfuscate. Since they breached their terms of delivery if I took them to small claims could I ask for the full monies being held?


Asked on 5/17/06, 11:57 pm

2 Answers from Attorneys
Robert F. Cohen Law Office of Robert F. Cohen

Re: Neither product nor refund received

You shouldn't even have to pay a cancellation fee since they breached the contract by not providing the product within the agreed time. Yes, there's no reason that you shouldn't seek all of your money back in small claims court. Make sure to notify them in writing that you consider the contract breached and want all of your money back. Send it certified, return receipt, and keep a copy. Let me know if you need further assistance.

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Answered on 5/18/06, 12:29 am
Norman Gregory Fernandez, Esq. The Law Offices of Norman Gregory Fernandez & Associates

Re: Neither product nor refund received

This is governed under what is called the UCC. When you were notified that the company could not deliver in the time frame mentioned in the contract "an anticipatory repudiation occured." In other words they told you that they could not perform on the contract.

You should sue for the entire amount because they breached the contract. However, if you signed a settlement and release for the cancellation fee, you might be bound to the terms of the settlement. How much money are we talking about here?

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Answered on 5/18/06, 4:25 am


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