Legal Question in Consumer Law in California
We purchased tile from a flooring store 2 months ago and have let to receive the product. We keep getting the run around from the sale's person of when or if we'll receive the tile. The contract states "Any cancellation or refusal of ordered products is subject to a 50% restocking fee. No exceptions!". If we do not receive the product wouldn't they have to refund the full amount. My husband believes they would only refund 50%.
1 Answer from Attorneys
Under the California Commercial Code, which is the CA version of the Uniform Commercial Code, you are entitled to demand reasonable assurance of performance. You are also entitled to performance within a "commercially" reasonable time, if no time is specified in your agreement. If they fail to give commercially reasonable assurance of performance, and/or fail to perform within a commercially reasonable time, you are entitled to cancel the contract and sue for both a refund, and any higher cost you have to pay to obtain replacement goods of equal kind and quality (called the "cost of cover" in UCC law). So you need to go through that drill of making written demand and putting them on notice that you will "cancel and cover" ("cover" meaning obtaining the flooring elsewhere) if they fail to give reasonable assurance that they will perform in a reasonable time - which after 2 months should be VERY short. If you do that and they fail to deliver, you are legally entitled to cancel and cover, and recover you full amount paid, plus interest and cost of cover.
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