Consumer Protection Law
Consumer Protection Law Questions? Ask a Lawyer Now.
Dear Customer, thank you for choosing Just Answer. I would like to assist you today.
Please give me a moment as I am reviewing your post to ensure that I understand your proposed course of action. If I understand correctly, the manufacturer has delayed over a year on this custom product.
Your proposed course of action is to demand a completion schedule with confirmation and a structured or "liquidated" damages schedule in the event they fail to comply. Is that correct?
There is nothing wrong with sending a demand letter like that. Now I cannot propose or advise on a specific course of action through this site, but I can give you an idea of what your legal rights and obligations are here, and hopefully that will assist you in deciding whether or not you wish to go forward with your letter, modify it, or take another course of action. (Again, I am not advocating one way or the other and your letter is perfectly fine to send).
Your contract for a custom good usually has an implied clause that delays may occur. However, you were given a specific timeframe within which the product would be completed, and it has taken substantially longer than that. This would be a breach of contract by the manufacturer and they would be liable to you for damages. Your remedies would be for a "benefit of the bargain" (the best option in court where you are awarded something equal to what you would have received in exchange for your money), or simply a rescision where your deposit is returned.
By sending a letter such as the one you propose, you are making a demand on them, but you are not creating any specific obligation on them. They have not agreed to the terms and you cannot force them to comply, the idea is that you are offering them an option to being sued. This is particularly important with regard to your liquidated damages - those would not necessarily be enforceable in court, although they may be something a court would look at in determining the value of your time in waiting for the product.
The final issue of course is the impact on their business practices. While not legally obligated to do certain things, they should do certain things to keep their customers satisfied and maintain their promises. You can get them to do this either through direct negotiations, or through the use of the Better Business Bureau, the BBB has low cost and free mediation services to help protect consumers from sharp practices by businesses and can help in situations such as this.
Interesting. Laws do differ throughout the states. I believe I understand. Just need to rethink my course of action now. The shop seems to have more clout under the law than I do???
Not necessarily, the problem is that the product you ordered is a specialty item. these products are given special consideration under the Uniform Commercial Code and contract law interpretation due to the significant impact delays such as a single plant shutdown can have on these smaller operations. This does not mean they can proceed with impunity, but it does give them more leeway than largescale production items.
OK, that helps. Thank you for your assistance!
You are welcome. I do hope that this matter resolves itself quickly and that the fabricator makes this matter right for you quickly.
Likewise. Much appreciated!
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).