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Law Pro
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Category: Consumer Protection Law
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Experience:  20 years experience in consumer advocacy, debt collection violations, contracts, construction
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We ordered custom furniture from a furniture manufacturer.

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We ordered custom furniture from a furniture manufacturer. They told us it would take 6 weeks for delivery. When that timeframe grew near we tried to contact them and were unable to and got very nervous. We cancelled our deposit with our credit card company. At that point the company reached out and acknowledged the problem on their side. They then reached out to us to restore our confidence. They agreed to ship the furniture if we would pay COD. We indicated by email that we would accept the furniture COD. Then several weeks passed. We again attempted to get a shipment date and one was not provided. I sent a final email giving telling them if the furniture was not received by a specific date we would not be receiving the furniture. We heard nothing. Then nearly a week later Fedex called us notifying us that a COD shipment was ready to be delivered. We declined the shipment over the phone. So no one actually came to the house. Now the owner of the company is threatening legal action because he "has it in writing" that we would accept the COD. My question is - if he takes us to small claims court what is the likely outcome?
Submitted: 1 year ago.
Category: Consumer Protection Law
Expert:  Law Pro replied 1 year ago.
Hi! My name is XXXXX XXXXX I'll be the attorney assisting you.

How long has it been since you originally ordered the furniture?

When did you make that agreement to pay COD?

How long has it been since that agreement to pay COD?

Where is the company located?
Customer: replied 1 year ago.

Initial order + Deposit: July 23, 2013


Filed dispute w/ credit card company: Aug 26, 2013


We agreed to pay COD by email: Sept 6, 2013


 


It has been 2.5 months


 


Company is located in North Carolina

Customer: replied 1 year ago.

oh it has been 1.5 months

Expert:  Law Pro replied 1 year ago.
OK, you have a great argument and a judge would not hold you to being liable for taking and paying for the furniture.

My question is - on the invoice or contract or anywhere - does it say anything about "jurisdiction" and what law applies if a dispute occurs?
Customer: replied 1 year ago.

All we have is a purchase order and there is no information at all regarding any terms, jurisdiction or anything. The address of the company is on the purchase order.

Expert:  Law Pro replied 1 year ago.
OK, good.

Sometimes (many times) that in the company's terms of service or invoice or contract - they have a "jurisdictional" clause limiting any disputes are to be litigated in a specific place (usually their local court) and what law applies (usually their state's law applies).

Too, the company's terms of service can mandate arbitration or mediation too.

However, they didn't do that in your case and completely breached their agreement with you.


1st, they didn't comply with the original time frame of 6 weeks.

2nd, that although you came to subsequent agreement with them - they again breached that agreement by not delivering the product (furniture) within a reasonable time nor responded to your communcation.

3rd, they did not respond to your communcations and given their history - you reasonably believed that they wouldn't deliver the furniture in the near future. That you had already been waiting a long time - long after their original promise of delivery.
They didn't meet the 2nd promise of delivery.

As such, you were absolutely within your legal rights to cancel the contract with them.

I would send the company a responsive letter stating the aforesaid.

Moreover, they would have to file suit against you where you live - in CA.

They would have to retain legal representation if they are a corporation - because corporations are fictitious entities and can't represent themself.


I don't think you have anything to worry about whatsoever - you have clear defenses against any of their potential claims.

What you might to is - if you haven't already purchased other furniture - is offer them a substantial reduction to take the furniture (if you could still use it).

Otherwise, I would inform them that because of their lack of communcation, lack of due diligence, breach of contract - you canceled the contract per your email.

Customer: replied 1 year ago.

Last question, if there is no contract and a shipper decides to send merchandise to a buyer C.O.D. and the buyer refuses to accept the shipment...does the shipper have any legal basis to recoup shipping fees from the buyer?


 


Thanks again.

Expert:  Law Pro replied 1 year ago.
Yes they would.


However, the furniture company would not be entitled to re-coup the shipping fees in your situation because they breached the contract in numerous ways.


So not only do you NOT owe for the COD shipping but canceled the contract because of their numerous breaches and lack of due diligence.





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Experience: 20 years experience in consumer advocacy, debt collection violations, contracts, construction
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