When Can You Get Out of a Purchase Agreement or Get a Refund

[samson21]

My question involves a consumer law issue in the State of: California

Hope this is in the right section. To anyone who reads this, many thanks. Here is my current dillema. I'm a guitarist and last November (2011) I put in an order for a custom built guitar from a luthier (guitar maker). We spoke frequently, we exchanged numbers, email, etc. He got down all the specs I wanted for the guitar and told me to call/text him whenever I wanted. He also promised no more than a 5 month build time, that he would have it done at or before May, that he would be sending me pics throughout the process, and that half way through the build, I could drive down, see what he's completed and that we would together design a few last pieces. I paid a $500 deposit and all was well for the first few months. I'd call or text him whenever I wanted to tell him something regarding the guitar and he would reply quickly. After three months, all communication died. He stopped answering my calls and texts and all that he promised never came to be. Fast forward to now, its been 8 months, I have no guitar, and I have heard nothing from him, and he still won't answer my calls and texts. Some people have said I should sue him and while I want my $500 back, I have a lot going on in my life and I don't want the guitar at all anymore, I want this whole thing behind me, this has been a horrible experience and I've never had such bad service before. His website is up and running so he's alive.

I have no written contract or anything. All I have is a reciept for the deposit which states underneath Item: $500 depsosit for (my name), underneath Description: $500 deposit for (my name) for a 6-string guitar, total sum of guitar is $3100. Reciept has my name, address, phone number, and email as well. All I want to know, am i obligated to pay for the whole guitar should he call me up in the coming months telling me its done, just based off the info on the receipt? Thanks everybody!

[jk]

based on the info on the receipt? sure. It supports the contract you did agree to. The specifics of the contract would be arguable but none the less, it clearly supports the creation of a contract.

You may have an out though. The promise date has obviously come and gone. That may make your contract terminable. The fact you have not done anything about that lack of delivery of the guitar in May simply allows the contract to continue on.

The way I see it, you have a couple choices:

wait forever and plan on paying him when it's done
contact him and attempt to cancel the contract due to the delivery date being missed.

then see what he says to the issue.

[STATcom]

It definitely sounds like you have a contract. To create a binding contract, you don't actually need to have a specific form that you both sign (like on TV). Contracts can be oral or in writing and the writing itself can be more than one. In your case, since the item was worth more than $500, you definitely need a writing to prove the existence of a contract. If you have any text/emails/etc that lay out the item, quantity, and payment proof, and delivery date, that should be enough to establish a contract existed. It sounds like you have all of this.

I'd echo jk's advice on getting out of the contract. Delivery date seems to be your best bet hear to get out of it since his failure to perform by that date would equate to a breach. At that point, you'd no longer be obligated to perform your end of the deal (i.e. pay him) and you'd be entitled to get your deposit back. However, I'd add that even though you haven't enforced your right to end the contract, you still can now. Contact him and tell him he hasn't produced in time and that you want to cancel and get your money back. If he doesn't respond, you can sue him in small claims court.

[samson21]

Wow, this is all new to me. So just because the receipt for the $500 deposit states that the total sum for the guitar is $3100, it holds me accountable for paying? Interesting. STAT, you say I should contact him telling him I want to cancel. At that point, can he not reply demanding that I pay the rest of the money?

[jk]

Wow, this is all new to me. So just because the receipt for the $500 deposit states that the total sum for the guitar is $3100, it holds me accountable for paying?

why does that sound odd to you? A contract is what it is. You promised to pay $3100 for the guitar so yes, he could get a judgment against you for the balance if he fulfills his end of the bargain.

you expected you could just walk away?

can he not reply demanding that I pay the rest of the money?

A verbal contract is very difficult to enforce. You will say he promised by May. He will say he said he would try for May, not promises. You can't prove it one way or the other so, a court will look to the issue and the parties and attempt to make an equitable decision. Given he has likely put much labor and material in the guitar, I would suspect a court would allow him some reasonable time to complete the guitar after which you would be required to pay the balance.

[samson21]

If you don't spend time in the guitar world its difficult to explain this. Part of getting a custom guitar is the perks that come with it, the guitar manufacturer and the customer work intimately hand in hand throughout the whole process, with most guitar makers sending you pics of every step and keeping you updated every step of the way. This guy is a very reputable guitar maker, and he promised me all that, yet didn't do anything. I've been left in the blue for 8 months, him ignoring my calls and texts, having no idea what has happened to my dream guitar with all that he promised being completely bullshit. So this is a frustrating situation for me and I hope you can see why I want to get out of it so bad. I'm no law person, so yes the lack of a written contract surprises me that I still have to pay at the end, despite him not delivering everything he promised. And basing all that off a $500 deposit receipt does seem odd to me, thanks for clearing it up.

[jk]

And basing all that off a $500 deposit receipt does seem odd to me, thanks for clearing it up.

the $500 was simply to have you prove you were serious about the purchase. Personally, if I was making something like this, you would have to put down at least 50% as a minimum and if the design was very unique (as in unable to sell to anybody else if you backed out) or used expensive materials, something closer to 100% would be likely.

Regardless, whether it was $1 or $3100, it ratifies the contract.

[samson21]

I see, thanks jk, I appreciate your help. I'll send him a few more calls/texts/emails and if nothing works, I'll send for a cancellation and see what he says.