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Can a contract be legally enforced if one party refuses to sign?


Antonia
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I've done something stupid.

I paid for an extension to the

guarantee on my new French car without seeing the policy document. This

has

now arrived, along with the contract to sign, and I am not happy with

the limits and exclusions. The

garage is refusing to return my cheque until they get clearance from

the insurance company as they say that the policy has been issued and

is therefore in effect.The policy is not

due to not start until the end of next month but I can see me signing up

so that I'm able to cancel. I always thought that you needed to sign a

contract in order to be bound by it. How can this contract be "in

effect"? I can't see the insurers paying up on a claim if I have refused

to agree to their terms and conditions. Any thoughts?

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Does this extension have different limits and exclusions to the original guarantee - is it a new policy, or an extension of the old one?

Either way, if the new policy doesn't start until the end of next month then it isn't in effect, is it - you are presumably still covered under the original guarantee and the insurers have not been held at risk under the extension.

For another thing, if it is in effect a new policy it surely can't be correct for your garage to take your money before letting you see you a copy of the contract.

My advice would be NOT to sign because once you have signed and the policy has kicked in, I think it will prove a lot harder if not impossible to cancel.

Tell the garage to send the policy back and get your money refunded, and make sure they do it before the start date of the policy.
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These type of policies are normally very lucrative in commission terms for the garage or salesperson involved.

This is a try on to save loosing this commission.

Do as E T suggests but don't just tell them you're cancelling put it in writing and either take it in and get a written acknowledgement of receipt or send it AR.

I find it difficult to believe that someone you're entering into a large deal with, can be this stupid, but that's French service for you.

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Thank you for your reply. In answer to your questions I was under the impression that I was extending the original guarantee but, in fact, have been issued with a new policy with a third party provider. This policy has different limits and exclusions which is why I no longer want to take it up. Unfortunately neither the garage's owner, nor his sales rep. had ever bothered to read a copy of the contract prior to selling and had assumed, as I had, that the cover was the same. The garage's owner is worried that he will be charged for the insurance so is keeping my cheque in case.

I should say that this is a dealership of a major European brand and the car was new. The sales rep. has a copy of a letter, signed by me, cancelling the insurance which he will send A/R to the insurer on Monday if the news isn't good. The garage then intends to bank my cheque and I will hopefully be re-inbursed by the insurer (there is a clause allowing a get out within 15 days of signing) I just hope I don't end up in some twilight zone where the insurer won't refund as I never signed the insurance!

The last thing in the world I want to do right now is sign which was why I was just wondering what the legal position was on a contract not signed. Would I be able to declare it nul and void and demand my money back from the insurer regardless?

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I don't know about French law but under UK law a contract other than for land does not have to be in writing to be enforceable - you just need evidence that there was a binding agreement for value. I suspect they could argue that writing a cheque was evidence of such an agreement but if the insurer does not cough up you will need advice from someone versed in French contract law. It does sound though as either there is no contract (because you have cancelled before it was due to start) or you will be saved by the 15 day cooling off period.
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If you weren't so worried this would be hilarious.

You were promised a product that neither the garage owner nor the sales representative had bothered to check out. You then get the product details and don't want what you were told you were getting.

Why would the garage owner bank your cheque? There is no sense nor reason for them to do this. Tell them to hang onto your cheque until this matter is resolved.

If all else fails tell them that you are going to complain to the car manufacturer as all manufacturers sell extended warranties.

It strikes me that this garage is selling a third party contact in breach of their agreement with the car manufacturer.

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As Benjamin says. I totally agree that this is nothing more than a try-on from start to finish. They were out of order from the moment they took money off you without showing you the policy document - an insurance contract isn't legally regarded as concluded until you've been provided with all the relevant documentation, to take away and peruse at your leisure if you wish and sign if you decide to accept it. Maybe it was an innocent mistake or maybe the garage knows from experience that it is easier to coerce customers into taking out a rubbish policy if they take their money first.

Worst case scenario, if it was an innocent mistake and if as they say the insurer has already issued a policy and for some reason doesn't agree to refund, it's the garage's fault not yours and surely a main dealership can stand losing a few hundred euro when it messes up, maybe they will think twice next time. But since the policy hasn't kicked in yet, I bet they will manage to cancel it if it's in their own interests to do so; if they are touting for business for that provider, which clearly they are, they will be working hand in glove.

Tell them you want your cheque back and DON'T whatever they say sign the contract, because it is very very hard to cancel a French insurance contract once it is all signed and has come into force. Your gut feeling is right, and if the garage tries to tell you it will be easier to cancel it after you have signed the contract, don't fall for it.

I hate to say it but I do wonder if maybe they saw you as easy prey because you're female and not French (at least I assume from your username that that is the case). If you stand up to them and act confident you'll probably find they back down very quickly, bullies usually do, and if they don't, telling them that you're not happy about it and will be writing to the manufacturer, as Benjamin suggests, should do the trick.
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Thanks again for all your comments. I'm beginning to suspect the reason the garage is being difficult is more to do with the loss of commission than anything else. It was I who approached the garage and asked for an extended warranty after being emailed by the manufacturer. We confirmed the price by phone (1,899 euros for six years), drove to the dealership ( 2 hour round trip) signed the cheque and was told a new membership card would be sent in the post. That was Monday. On Wednesday two copies of the contract arrived by post to be initialed, signed and returned. We phoned the garage, told them we weren't happy and arranged to drive back to the dealership on Friday to reclaim the cheque,(Thursday being a bank holiday). We spent a VERY tense hour in the garage attempting to get the cheque back during which time I saw no other customers.

As I say I feel very stupid.

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  • 3 months later...
Sorry to resurrect an old thread but I wondered if any of you had any ideas where I could go next. In the last four months I have sent two letters ( recorded delivery ) to the insurance company to cancel the policy but haven't received a reply. I have also complained to Fiat France who say that I should be reimbursed eventually. The garage have yet to cash my cheque ( they claim they have been charged for the insurance ) but, as it is coming up to the end of the year, are beginning to hassle me to get this sorted. Last week I emailed a director in the insurance company's head office in London but again no reply.

I'd like to try the ombudsman but as I haven't actually been charged for the insurance ( which I still maintain doesn't exist as I didn't sign the agreement ) I don't think he'll want to know.

Any thoughts?

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I wonder what would happen if you simply cancelled the cheque with your bank?

Whilst it is true that, by paying upfront, you may have tacitly agreed to the contract, the policy hasn't actually started so there is no contract as such at present?

I think I'd just cancel my cheque, print out and keep all the emails, write down details (date, time, what was said) of the visit to the garage and sit tight and call their bluff.  My guess is they themselves would not do anything.

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Thanks for that. The problem is that I would have to claim that the cheque was obtained by deception and make an official complaint to the police prior to the bank stopping it. Much as I'd like to I don't think I can make a case for fraud. Another problem is that if the policy does exist, it started 2 months ago so there is a chance that I might only get back pro-rata.

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Can't you just tell the bank that you 'lost' the cheque and that you would like to cancel it in case it fell into the wrong hands?

I certainly wouldn't be above such a deception and if the garage ever presented the cheques all you have to say is 'silly me, I must have left it at the garage all along, please refuse the cheque anyway'

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'The problem is that I would have to claim that the cheque was obtained by deception'

Well it was - the deception was by the garage in that it is not the manufacturers extended warranty which you believed it was nor to the same terms and conditions which you expected.
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Of course the garage can always try to say that they explained the terms of the contract to les anglais but that they misunderstood.

How you or they prove that you had copies of the document to study seems problematical.

What about the cooling off period, was it observed? If you did not have the documents during that time, then the garage may not have a leg to stand on. But they could lie.

Proving anything either way seems impossible.

By the way, how long can a cheque be held in France without being cashed before it becomes invalid? It used to be six months in UK many years ago.
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Thank you all for your replies. I don't know what the cooling off period is in these circumstances but in effect there was none. How I think it is supposed to work is this -

Punter goes into garage for extended warranty.

Punter is given pre- contract document to sign to say that he understands this is NOT a manufacturers guarantee, has different terms and conditions, and he has read and understood said t&c's.

Punter then signs cheque and receives new policy.

What happened to me was -

Went into garage for extended warranty.

Asked for 1899 euros.

Told new coupon would arrive in post to replace the one in the service manual.

Left garage.

Garage then printed off pre-contract, and policy document and posted them off to me that same afternoon.

The rest you know.

As I've said I've sent two letters to the insurance company, the first one asking for a cancellation of the policy, the second stating that I had just received the pre-contract and didn't want to take up the policy. Neither have been replied to. I think the garage is at fault for creating the policy at the same time as the pre-contract and they know it, but they are 1899 euros down on the deal and are hoping I'll either get a result from the insurance company or give up.

As far as the validity of a cheque is concerned it's one year and eight days so I'm getting there!

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I'm afraid to say that your contract is valid and if you 'stop' the cheque (by claiming deception, just about the only way you can do it), then you will be committing a rather serious criminal offence yourself.

Just like the UK, contracts do not need to be signed manually, you just need an offer, an acceptance, and a consideration (your cheque). You can't claim to have not accepted the contract if you paid!

You did have a period when you could cancel (7 days, I think), but you can only cancel by doing it properly; right form of words, sent LRAR to the other party in the contract.

Also, you say that the insurer is in London? That would have an impact, too, although if the contract was established in France, French law would apply.

Remember that the garage has (I believe) 1 year and 1 day to cash your cheque, so watch out for the anniversary. If they don't cash your cheque, it doesn't remove your obligation to pay.

Sorry about the formatting, but this forum doesn't seem to like Chrome.
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Just thought I'd share the good news.

My cheque is winging its way back to me in tonights post.

After getting nowhere with one

director of the Warranty Group I decided to blanket email every

executive I could find. I hit pay dirt with someone in Ireland who passed it on to the Managing Director of European operations. He

checked the policy and informed me that it had been canceled “in a

timely manner” and the garage had been reimbursed the beginning of

September! From the tone of the email I don't think he was that

impressed with the conduct of the dealership as he said he was going

to copy in the CEO of Fiat Group Automobiles Capital so that he was

also appraised of the situation.

Armed with that I called the garage who

still insisted that they were the ones out of pocket until I

shamelessly name dropped who I'd been in contact with and surprise,

surprise, they checked again and found the missing credit on their

books.

Best Christmas present ever!!

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Well done you [:D]

I have done something similar recently, I have had a problem with ERDF regarding the raccordement en collectif for my apartments, without going into detail they have mucked me around for over 9 months now when they are contractually obliged to do their bit within 10 weeks, theres lots of murky stuff going on behind the scenes which I have long suspected and my "interlocuteur" has conveniently moved to another division.

I took up the matter with the deputé of the region (like an MP) and he simply picked up his mobile phone, called his friend the regional director and asked him to intervene, you would not believe how fast they jump now [:D]

I phoned the new guy this morning to tell him that I had done the works required following our last meeting, he said it was tricky to visit at the moment, could I wait till 11.30 this morning it was 10.00 when I called and he is nearly an hour away by road.

Looks like I will be up and running at last by early February and I think they are going to agree to my proposition for financial compensation for loss of income. 

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