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Consumer: Contractual obligations
ROW: Driving instructor Alan Whetstone.
As one man faces court action after refusing to pay a bill he claims he does not owe, Sophie Hazan learns about your contractual liabilities.
when driving instructor Alan Whetstone ended his contract with a driving school franchise he thought nothing more of it.
The 57-year-old, from Kirkstall, west Leeds, had given two weeks notice as outlined in his agreement, sent confirmation of his intentions by email, and paid his final fortnight’s rent before returning the car he had been loaned.
So when he was told he owed £772, the equivalent of four weeks rent, he thought there had been some mistake.
But bosses at the firm, have since pointed out that the notice period was four weeks, and they do not accept termination of a contract by email.
They are now pursuing payment, or intend to take him to court.
Mr Whetstone believes he has done nothing wrong and is prepared to fight his case at court.
Consumerwatch spoke to a commercial contract expert, to find out more about consumer rights when it comes to ending a contract.
Nick Bates, head of commercial dispute at the Leeds branch of Irwin Mitchell, said: “First of all a consumer contract cannot continue forever.
“Even if there isn’t a term in the contract that talks about how long it’s going to be for, or how you can terminate, it will be implicit that you can terminate with reasonable notice.
“What reasonable notice is depends on the case.
“A second point worth mentioning is that usually a contract states how you can terminate, and gives a notice period.
“If you sign a contract you are bound by that unless you are a consumer and can show that the term is unfair.
“How? There are two broad ways, one that you never knew about it, and it wasn’t clear, or secondly in relation to termination, there’s not equal rights.
“For example a big business might allow itself several days in which to terminate a contract, but ask the consumer to give a month’s notice.
“In this case a court might feel it isn’t on an equal footing.
“The other way you can terminate is if the other party has done something in breach of the contract and that act allows you to say that it’s been repudiated.
“Every breach doesn’t necessarily repudiate a contract. Some breaches give you a right to damages, but if it is a fundamental breach that might allow you to get out.”
Asked about Mr Whetstone’s case, Mr Bates said a court could view his as a commercial contract, so he would not be afforded the same protection.
That Mr Whetstone ended his contract by email, and the member of staff who received his message said it would be passed on, without any mention that he would have to put his intentions down on paper, was “unfair”, said Mr Bates.
He said: “There’s a principle if something’s unclear – such as the definition of ‘in writing’ – the court will construe it against those who drew up the contract.
“However, that is for consumers, and this might not apply to this case.
“Basically, in my opinion the driving firm is being unfair not accepting the email.”
He added that he thought the firm was also being “unfair” about the length of notice – in particular not accepting that he gave two weeks notice, and paid to the end of that period.
Mr Whetstone signed two contracts with the franchise, the first stating he should give two weeks notice to end his contract; the second that he must give four weeks notice.
It appears that he never returned the first, so the second was issued.
Mr Bates added: “It’s just wrong in my opinion. [Mr Whetstone] could look at whether he has been misled.
“He was given two different contracts, with two different termination periods.
“When he was given the second contract was he told it was identical to the original one he was given?
“He could argue that they should be prevented from saying he hasn’t given proper notice because they didn’t take the opportunity to point this out in response to his email. Of course he had a responsibility [to read his contract].”
The franchise claim they attempted to contact Mr Whetstone for several days to tell him there was a four week notice period.
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