# Deposit refund in a private sale?



## patp (Apr 30, 2007)

Hi
Due to the withdrawal of our house buyer (aaarrgghh!) we were unable to follow up with our purchase of a second hand fifth wheeler. We had put a substantial deposit down ( I know!) and now cannot complete the purchase. The seller is saying he will only refund the deposit if he gets his full asking price for the fiver.
Is he within his rights to do this or can we get our deposit back?

Pat


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## HarleyDave (Jul 1, 2007)

Did you get a receipt for your deposit (I hope so!)

What did the receipt say - if it did not say "non refundable" then I would expect to get it back in the event of non completion (due to either party)

I suppose you SHOULD (hindsight is a wonderful thing - I have 20/20 hindsight) have specified "dependant on the sale of your property"

The sellers terms (now) are unreasonable - he could reduce the asking price to get a quick sale and deduct the difference from your deposit - not fair in anyone's eyes (except his of course)

Unless you agreed to that up front AND it was specified in the agreement/receipt I don't think he can introduce that condition now.

Trouble is, he has your money AND his fiver...

Cheers

Dave


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## erneboy (Feb 8, 2007)

Take legal advice. Which Legal, perhaps Citizens Advice.

I imagine he is within his rights though if you didn't specify any caveats when you paid the deposit. Otherwise what's the deposit for?

I am not sure though and would be interested in finding out.

Be careful what you say to the dealer till you know the legal position. It seems to me that you contracted to buy the goods and have now decided that you can't. Having a good reason might get a sympathetic hearing from some people but I feel that's up to the individual or company concerned, Alan.


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## patp (Apr 30, 2007)

I did get a receipt and it does not say anything about it being non refundable. Just states that what it was for and that they could use the vehicle while awaiting the balance of the money. They knew it was dependent on our house sale but it did not state that on the receipt.

It was a private transaction.


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## Mrplodd (Mar 4, 2008)

There is only one answer to this issue.

You need professional (as in a solicitor or similar rather than CAB) advice.


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## Stanner (Aug 17, 2006)

You could well be stuffed as the receipt doesn't say the deposit WOULD be refundable if you couldn't proceed. 

If you think about what is the point of a "refundable" deposit? 

You pay over the money to secure an item and then just get it back if you change your mind (for whatever reason)? 

Pointless -What has that done for the seller other than possibly screw up other potential sales?

Sorry, but you contracted to buy at a certain price and paid a deposit to have the item taken off the market and so preclude anyone else from buying it. 

You now cannot fulfill your side of the deal and so the seller may no longer be able to get the full agreed price elsewhere, surely they can expect you to underwrite any loss occasioned by that breach of contract?

I think your best bet would be to beg, borrow or steal the balance from somewhere (almost anywhere) to temporarily bridge the gap and thus avoid losing the deposit.


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## drcotts (Feb 23, 2006)

This type of issue was on the radio some while back what they said was.

You do need to see a solicitor but generally the seller of the 5th wheeler must try to mitigate any loss which means he must try and recover it if he can. Obvisuly he is going to sell it to someone else in the future and so he will mitatge his loss. he can take out reasonable costs and losses as the deposit was to take the vehicle off sale. So what he says is partly correct.

Stanners point about the seller suffering is noteable but this happens all the time now that people can order things on line as the distance selling regs say you can just send it back within 7 days and get your money back - including the P+P - this would put sellers at a disadvantage but its something that they have to live with to an extent and build this into their business.

I hope they agree to refunding your deposit. let us know how you get on.

Phill


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## wug (May 19, 2011)

CAB have experts who can advise on this for free. Go to a solicitor if that fails. Reading elsewhere it may be that in the absence of any clause to the contrary the deposit is not non-refundable. So you may be entitled to a return of deposit, but possibly less expenses. If you made it clear that the purchase was consequent on your selling the house and you have a witness, then you are probably in a stronger position. 

But get proper advice.


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## duds (Sep 23, 2007)

I am a lawyer and run a low cost legal help service. You are in breach of contract (without knowing the actual terms). A material breach can be of a condition or warranty. The seller must now forfeit the deposit and try and resell. His losses against you recoverable as damages are what he can sell for now plus the inconvenience element and all extra costs.


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## erneboy (Feb 8, 2007)

Here is what CAB have to say on the topic: http://www.adviceguide.org.uk/wales..._deposit_back_if_cancel_goods_or_services.htm


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## duds (Sep 23, 2007)

I assume the seller is a private seller not dealer. The measure of loss and damages to the seller will need to be quantified . Deposit is paid as part payment AND security for performance of the contract by buyer


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## thieawin (Jun 7, 2006)

The law is simple.

You and the vendor have entered into a binding contract for him to sell and you to buy at a set price.

You now want to breach the contract.

You paid a deposit

If you withdraw the vendor has two alternative remedies. He can apply for an order of specific performance, ie that the Court Orders you to pay the balance or he can accept your breach and claim damages for his losses (if any)

His losses are out of pocket expenses caused by your breach, including remarketing, and any loss arising from selling at a lower price. Its a vehicle, it depreciates. He has to sell reasonably quickly. He is entitled to hold on to your deposit and deduct his losses once quantified and return any balance to you. If his expenses exceed the amount of the deposit he could sue you for anything on top as well


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## patp (Apr 30, 2007)

It seems as if he may know his law then.

He states that he will give me the deposit back only if he gets his full asking price for the fiver (we offered the full asking price). As this is highly unlikely (not many people are like my husband who will not haggle a price down even though it has clearly been inflated to allow for haggling) then he is going to claim he is out of pocket from our offer of full asking price to the one he, eventually, accepts. He also has no incentive to hold out for the full asking price due to having our deposit in his bank account.
He is advertising on ebay so he will be about £70 out of pocket I suppose?


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## patp (Apr 30, 2007)

Don't suppose I can sue the house buyer for my losses?
We lost the deposit in question. We sold all our garden tools and lots of other stuff for next to nothing as we intend to full time for a while. Serviced the boiler for them, emptied the septic tank for them etc etc etc.
Hurrumph!


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## Stanner (Aug 17, 2006)

As I said by far the cheapest way out is to find the balance. 

The only way you would lose then, would be for the interest you pay on any borrowing to exceed what you have paid as a deposit.


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## Pudsey_Bear (Sep 25, 2008)

Not a legal opinion, but if you left a deposit and got a receipt, then you made a contract, do you know if the fiver was then removed from sale, and that any advertising was removed, if not then the contract was already broken by the seller.

The problem is proving it, if it was a private sale, and someone left me a deposit, substantial or otherwise, I would consider it sold, and simply await the balance to be paid.

I might negotiate if it went sour to cover my immediate losses of having to re advertise it and a little for inconvenience and refund the rest, which I would think is the best you can reasonable expect.

So speak nicely to the man and hopefully a refund with respect for his inconvenience etc might be forthcoming.

I hope you get most of it back, as it is a horrible position to be in.


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## lifestyle (Apr 27, 2008)

Stanner said:


> As I said by far the cheapest way out is to find the balance.
> 
> The only way you would lose then, would be for the interest you pay on any borrowing to exceed what you have
> paid as a deposit.


I fully agree with Stanner,Get a short term loan and get the fiver.
Trying to get your deposit back will only make you ill.

Les


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## patp (Apr 30, 2007)

Too scared to take out a loan to buy the fiver! What would happen if the house burnt down and the insurance refused to cough up or whatever other scenario you like to mention. Every penny we have is tied up in the house or is in the Fifth Wheel owner's bank account 

Think it is a case of hoping someone pays him the full asking price (£44,000 to include the tow vehicle) and he honours his word.


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## wug (May 19, 2011)

Don't waste time on a forum, go and see a solicitor. You've too much to lose.


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## nicholsong (May 26, 2009)

wug said:


> Don't waste time on a forum, go and see a solicitor. You've too much to lose.


They have just had a Solicitor's opinion above, for free, with which I (lawyer, but not Solicitor) concur - for free.

Geoff


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## thieawin (Jun 7, 2006)

if you PM me with your e-mail address I shall make contact from my office on my law firms e-mail stationery and if you then give me full details I'll give you up to 60 mins legal advice for free. I'm qualified in England, Isle of Man and Ireland North & South, plus I'm in process of becoming a Registered Lawyer in Spain (note not Scotland its too difficult to requalify/transfer).

I'm going to be in every day over the Holiday weekend

John


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## 100127 (Jul 20, 2006)

thieawin said:


> if you PM me with your e-mail address I shall make contact from my office on my law firms e-mail stationery and if you then give me full details I'll give you up to 60 mins legal advice for free. I'm qualified in England, Isle of Man and Ireland North & South, plus I'm in process of becoming a Registered Lawyer in Spain (note not Scotland its too difficult to requalify/transfer).
> 
> I'm going to be in every day over the Holiday weekend
> 
> John


Now you don't get that help every day. Hats off John.


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## wug (May 19, 2011)

nicholsong said:


> wug said:
> 
> 
> > Don't waste time on a forum, go and see a solicitor. You've too much to lose.
> ...


You can't give a proper opinion on a forum like this, only general advice, as each case will depend on the facts, plus, you don't know the credentials of most posters. Too many people rely on forums for advice on matters that should be taken to a professional face-to-face, or at least on the phone. Can be dangerous.

That said, the op has had a generous offer which I hope works out, but more by good luck than anything else.


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## tyreman1 (Apr 18, 2008)

I'm sorry but if you left me a deposit on a car,van,boat or whatever and didn't complete the purchase I wouldn't give you your deposit back,if I did manage to sell the item in a reasonable amount of time depending on how much was at stake you might get a bit back but at the end of the day look at it as if you were selling something and had been messed about.


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## coppo (May 27, 2009)

I,ll have to disagree there Tyreman.

I would give the deposit back if I felt the buyers were genuine in their story, obviously it depends a bit on the circumstances, how long before you told them you couldn't proceed, if I had lost a sale directly because of it etc

I would look at it fairly, not see it as an opportunity to make some money.

Paul.


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## HarleyDave (Jul 1, 2007)

If this is it,

http://www.ebay.co.uk/itm/Celtic-Ra...mpers_Caravans_Motorhomes&hash=item258be7e6a2

you might only be out a fiver (see what I did there?) plus his ebay costs

The good news is he appears to be asking the same price you agreed, not trying to get rid quick at your expense.

That said - there are loads of fifth wheelers on ebay so I don't know if it will go for the asking price

Is there any wriggle room in him continuing to use the pick-up I wonder?

Cheers

Dave


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## peribro (Sep 6, 2009)

> I would look at it fairly, not see it as an opportunity to make some money.


And that is what the "law" requires i.e. you are not allowed to make some money from it. What you are allowed to do though is to use some or all of the deposit to put yourself back into the position that you would have been in if the other party hadn't breached the contract.


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## aldra (Jul 2, 2009)

Me
I would go with Thieawin's more than generous offer

You don't say what the deposit was in cash terms

As Coppo, says I'd give it back

But I'm a hopeless case and always work on what goes around comes around

Actually it almost always does

Aldra


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## dragoon (Mar 3, 2014)

They knew it was dependant on your house sale.

They are cheating you.

I have been through the small claims court and got a private deposit back and I would suggest you could too.


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## patp (Apr 30, 2007)

Just to let everyone know that Thiewan has been most helpful and, because we mentioned a time scale for the sale of our house, we entered into a contract bounded by time. We defaulted and will lose the deposit unless he sells for the full price and stands by his word to refund under those circumstances.

We had a builder, with cash, look at our property yesterday so keep your fingers crossed. It is his second visit


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## cabby (May 14, 2005)

fingers crossed for you.

cabby


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## Pudsey_Bear (Sep 25, 2008)

+ 1 on the crossed digits, tootsies too


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## Penquin (Oct 15, 2007)

Maybe the fingers and toes crossed could be used as an excuse for the typing mistakes that appear in many of my posts, the same excuse of supporting the OP in this quest would be of benefit to others......

Dave :lol: :lol: :lol:


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## TheNomad (Aug 12, 2013)

erneboy said:


> Here is what CAB have to say on the topic: http://www.adviceguide.org.uk/wales..._deposit_back_if_cancel_goods_or_services.htm


The buyer is, based upon what we have been told of the circumstances, in breach of contract. He agreed to buy for "X" and put down "Y" as a part payment. Now he is refusing to pay the remainder in order for the sale to him to be completed.

But we need to be a tad cautious here, as the link above to the CAB stuff refers to commercial contracts, ie those made between an individual and a trader; someone selling in the course of a business.

The legal position is lightly different when examining English contract law between two private individuals.
My take on it is that the seller could hold onto the deposit whilst he tries to sell the article anew; and then returns that money MINUS any reduction in achieved sale price and any/all incurred expenses.
In other words the seller must try to mitigate his losses, but those losses are for the account of the buyer who breached their contractual agreement to buy.


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