non refundable deposits question

G

gert

Guest
Hi,

Does anyone know if this situation would entitle me to my deposit back?

The brief summary is, we paid a deposit in first week of November to be sure of a place for our child in a creche. The start date in the creche was going to be late February, so, that's well over 3 months in advance (3 months + 3 weeks to be precise).

However, last week our situation changed, and we definitely can't go ahead with the creche for financial and personal reasons. Last Monday we asked if it was possible for the deposit back. Owner said it is not refundable. And this is what the contract does say. My missus didn't sign the contract upon payment - the owner gave her the contract to sign, and she brought it home intending both of us to sign it and return it - we just never got around to do doing that but it was our plan. It wasn't made clear to her or me that the deposit it not refundable from the time of payment.

Did we enter a binding agreement by paying the cash deposit without being told that it was not refundable, even though it is written in the contract? Foolishly we didn't read it at the time... but then we never thought we'd need to pull out of the arrangement too...

Practically, I think the creche should at least meet us half way on this... we didn't know it was not refundable, we never asked, she never told us... we are giving them loads of notice... surely they can compromise with us? We're talking about almost a thousand euros here! Most creches will return a deposit if you give them two months cancellation notice... but again, what "most creches" do doesn't matter i suppose? Is it worth our while chancing the small claims court?

If legal advice isn't allowed here, then generally, what is the law on deposits? I've read the NCA and citizens information website, all well and good, but the specifics of being told that the deposit ain't refundable isn't mentioned.

All replies appreciated, thanks.
 
Thanks Petrolhead.

Speaking to a few people, they are all in one of two groups.

Group 1: the people who say I entered into a contract by handing over the cash and not making myself aware of the T&C. The fact that I haven't signed anything seems to be irrelevant.

Group 2: the people who say that not making us aware of the T&C in relation to the deposit is grounds for us to demand a refund, especially that we have given them bucketloads of notice. Additionally we haven't signed anything (but that just seems academic really...)

I think splitting it is a fair outcome. It's just that the creche owner is holding firm. I phoned...
1) citizens information. They were helpful, but they would generally fall into group 1. they suggested I try small claims court phone line
2) small claims court... who suggested that I may have a case but it would really be through the Civil Court as no goods were exchaned and it's not a typical Small Claims scenario (i see their point). Suggested I try Free Legal Aid line via local citizens info office.
3) free legal aid at my local citizens info office - they have free legal advice evenings... they will be able to tell me if it's worth even going to small claims. All booked up until Christmas though by which time it's probably too late to act.

My hunch is that the "Law is an Ass" in this scenario. Legally we entered a contract by handing over cash. A severe case of buyer beware. It might not be fair, but it's the law... and the law sucks in this particular case.

If this was one week's deposit, I'd completely understand and forfeit it - after all paperwork = time = money.
 
I would think that if you were unaware of the terms of the contract at the time of paying the deposit you cannot be bound by it.
 
Possibly you should post this on the Askaboutlaw thread. I rember doing a business course years ago where a solicitor said you can make a verbal contract and you do not need to sign.
 
Does the receipt for the €1000 say non refundable. When you paid the deposit without reading T&C the creche should have confirmed verbally and in writing that the deposit was non refundable. They also made a contract with you when they took your deposit. From what you say the deposit was paid and a copy of the T&C handed to your wife at the same time. They were aware you had not read them. I think they would have had a duty of care to you that you were furnished with all the facts of the contract.
 
gert said:
....... And this is what the contract does say. My missus didn't sign the contract upon payment - the owner gave her the contract to sign, and she brought it home intending both of us to sign it and return it - we just never got around to do doing that but it was our plan. It wasn't made clear to her or me that the deposit it not refundable from the time of payment.

..... even though it is written in the contract? Foolishly we didn't read it at the time... but then we never thought we'd need to pull out of the arrangement too...
Click to expand...

You got the contract .... the info was in it. You never read it so I can't see how you can blame the creche.

gert said:
... we didn't know it was not refundable, we never asked, she never told us...
Click to expand...

You did .... you said it was in the contract ... it's a pity you didn't read it.
 
Ann1 said:
....They were aware you had not read them. I think they would have had a duty of care to you that you were furnished with all the facts of the contract.
Click to expand...

How could they be aware that they hadn't read the T&Cs?

They provided a contract, it would be reasonable to assume that the recipients would read it.

The only thing the creche could be accused of it being negligent in getting a signed contract back to cover their own paperwork.

Presumably the deposit was paid by cheque .... so a contract on a kind was entered into.
 
Thanks for the comments. As I mentioned, this is very fifty-fifty when it comes to getting opinions from people - some agree with me, some don't.

However, I'm just back from visiting a solicitor - managed to get free legal advice this evening via the citizens information office.

After considering everything, and reading the contract, he is of the opinion that it is not technically a properly formed contract. I have a window to go through in that our signatures are not on the contract, and that there was nothing in any conversation regarding the non-refundable deposit. He suggested writing a letter requesting the deposit on this ground, and to state that they will be "unjustly enriched" by keeping the full deposit, as they are gaining by doing nothing. He said this should have weight to it mainly because I am giving ample notice to allow them to fill the place between now and end of February.

So there you have it - I will let you know how this turns out. As I said, if they even offer half, I'd take it. Something is better than nothing. Definitely worth a try.
 
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