legal definition of force majeure?----any legal experts here

[ashtead]

There are various cases on inability to perform a contract usually in a war time context and where it's render illegal . Compare scenario with where a country becomes a sanctioned one and supply is hence illegal . If performance is illegal contract becomes unenforceable so in simple terms any monies paid need returning as per supply of goods cases.

 

[Irish Rover]

It's a very good analogy; the provider is unable to honour the contract because of something outwith their control.

Yes, if the customer changes their mind. Do you really think that a business can take a deposit, decide not to fulfil the deal and then just keep the money? "Sorry, we've decided not to sell you that car, but we're keeping the thousand pounds you paid."
Can I claim back a non-refundable deposit?

Tough luck for them, but that is quite a different matter. Understanding customers may well accept a credit note, but they should not be obliged to.

I have a holiday cottage booked in Norfolk for Easter week. It was booked and paid in full, non-refundable, ages ago. I've had an email from cottages.com to say that I can have full credit to spend within a year. That's fine, because the accommodation is still available to be and I could in theory use it - I might, for all they know, live two miles away. However if they decided that it was simply not available I would expect a full refund.

Curious sidenote: they say I can request the deferral through my cottages.com account, but I don't have one, as I booked through booking.com. Booking.com say that I can cancel the booking "free of charge" and then immediately underneath that I will be "charged in full" if I cancel. This is going to be fun.

At this stage I think you're arguing with yourself so I'll leave you to it.

 

[dom]

At this stage I think you're arguing with yourself so I'll leave you to it.

So a business, relying on a contract with no 'force majeure' clause -- which takes a deposit and subsequently finds itself unable to deliver the contracted service -- can keep the deposit or portion thereof, on the basis that the customer may not have been able to accept the contracted service?

And you think that's a slam dunk? Under English/Scottish law where force majeure must be specified!

Personally, I'd reiterate my earlier advice to just settle this amicably, think of the future of the business, think of the potential storm of wounding social media denunciations that would inevitably follow, and just do the right thing.

 

[Irish Rover]

So a business, relying on a contract with no 'force majeure' clause -- which takes a deposit and subsequently finds itself unable to deliver the contracted service -- can keep the deposit or portion thereof, on the basis that the customer may not have been able to accept the contracted service?

And you think that's a slam dunk? Under English/Scottish law where force majeure must be specified!

Personally, I'd reiterate my earlier advice to just settle this amicably, think of the future of the business, think of the potential storm of wounding social media denunciations that would inevitably follow, and just do the right thing.

I think you may be confusing me with another poster. For the record I'm all for settling things amicably. This is an unprecedented situation and I think credit notes are a good compromise where the business is not in a position to provide cash refunds.

 

[JumbleDuck]

I think you may be confusing me with another poster. For the record I'm all for settling things amicably. This is an unprecedented situation and I think credit notes are a good compromise where the business is not in a position to provide cash refunds.

I agree, but I think it has to be done by consent rather than by the business owner baldly stating "I need the money. Get lost." which is just asking for trouble.

 

[Irish Rover]

I agree, but I think it has to be done by consent rather than by the business owner baldly stating "I need the money. Get lost." which is just asking for trouble.

I'm not sure what type of businesses you're accustomed to dealing with but I can't imagine any reputable business saying "I need the money. Get lost." You do seem to have a difficulty understanding that many businesses no longer have the deposit monies and are desparately struggling with negative cash flow. Consent doesn't come into the equation when a business simply does not have any money. A sensible business will decide they can afford to refund all customer deposits now or will refund none. Once one person posts and FB or whatsapp that they got their deposit back then the business is screwed for ever if they're not able to refund everyone. Most businesses will be apologising and saying they simply do not have the money to facilitate refunds. They will ask customers to accept credit notes and assure them of their best possible service and attention when things return to normal.

 

[dom]

I'm not sure what type of businesses you're accustomed to dealing with but I can't imagine any reputable business saying "I need the money. Get lost." You do seem to have a difficulty understanding that many businesses no longer have the deposit monies and are desparately struggling with negative cash flow. Consent doesn't come into the equation when a business simply does not have any money. A sensible business will decide they can afford to refund all customer deposits now or will refund none. Once one person posts and FB or whatsapp that they got their deposit back then the business is screwed for ever if they're not able to refund everyone. Most businesses will be apologising and saying they simply do not have the money to facilitate refunds. They will ask customers to accept credit notes and assure them of their best possible service and attention when things return to normal.

The cashflow of the business, while a priority for it , may not be top of the list for an equally cash-strapped customer. An offer of a credit note, perhaps for 50% off a later booking rather than the 30% face value, may be accepted by some, but not by others, which could then be repaid in full.

Returning to the OP's original question:

"....she is thinking of sharing the pain with her customers and returning 50% of their deposits-------would this be fair-----would this be legally aceptable"?​

​

With regards to the second question, I suspect it would indeed be legally dubious, and in answer to the first JD argues that, no, it would't be 'fair'. Personally, I agree.

 

[Irish Rover]

The cashflow of the business, while a priority for it , may not be top of the list for an equally cash-strapped customer. An offer of a credit note, perhaps for 50% off a later booking rather than the 30% face value, may be accepted by some, but not by others, which could then be repaid in full.

Returning to the OP's original question:

"....she is thinking of sharing the pain with her customers and returning 50% of their deposits-------would this be fair-----would this be legally aceptable"?​

​

With regards to the second question, I suspect it would indeed be legally dubious, and in answer to the first JD argues that, no, it would't be 'fair'. Personally, I agree.

I applaud those who can get blood from a stone.

 

[dom]

I applaud those who can get blood from a stone.

Going bust as a tactical move would certainly be an option, by no means an easy one if she proposes to stay in this business, and a question the OP never raised.

I sense you're attacking a straw man

 

[Irish Rover]

Going bust as a tactical move would certainly be an option, by no means an easy one if she proposes to stay in this business, and a question the OP never raised.

I sense you're attacking a straw man

I sense some posters have straw between their ears if they cannot recognise that many businesses do not have the wherewithal to return deposits.

 

[JumbleDuck]

I'm not sure what type of businesses you're accustomed to dealing with but I can't imagine any reputable business saying "I need the money. Get lost." You do seem to have a difficulty understanding that many businesses no longer have the deposit monies and are desparately struggling with negative cash flow.

And the same goes for many customers. "We are short of money" or even "We would go bust" are not excuses for retaining money when you can't provide services.

I am currently sitting on around £15,000 in deposits for summer activities which looks as if they have a 50% chance of going ahead. If they don't we will offer a choice of full refunds or rather more than full credit for next year, because we will not take our financial woes out on our customers.

 

[JumbleDuck]

I applaud those who can get blood from a stone.

You'll enjoy "Can't Pay? We'll Take It Away", then. Hope your daughter doesn't end up starring.

 

[Irish Rover]

And the same goes for many customers. "We are short of money" or even "We would go bust" are not excuses for retaining money when you can't provide services.

I am currently sitting on around £15,000 in deposits for summer activities which looks as if they have a 50% chance of going ahead. If they don't we will offer a choice of full refunds or rather more than full credit for next year, because we will not take our financial woes out on our customers.

I'm happy for you that you still have the deposit money and you're in a position to return it and I applaud and respect your honesty and integrity. I'm sure there will be a few unscrupulous businesses who will try to hold on to funds they could easily refund. I'm equally sure there will be many more who genuinely do not have the cash.

 

[JumbleDuck]

I'm happy for you that you still have the deposit money and you're in a position to return it and I applaud and respect your honesty and integrity. I'm sure there will be a few unscrupulous businesses who will try to hold on to funds they could easily refund. I'm equally sure there will be many more who genuinely do not have the cash.

We don't have the money, or at least we only have about half of it, which is why we will offer inducements to defer until next year. If I have to I will make a personal loan or gift to the trust to enable it to fulfil its moral obligations.

 

[Irish Rover]

We don't have the money, or at least we only have about half of it, which is why we will offer inducements to defer until next year. If I have to I will make a personal loan or gift to the trust to enable it to fulfil its moral obligations.

Fair play. I admire and respect your approach. I'm involved in the tourism business here in Turkey so I need hardly tell you how bleak our outlook is going forward. The vast majority of the tourists here come from Western Europe and when leisure travel does eventually resume the expectation is that recovery in the western med and the Canary Islands will be well ahead of the eastern med. Realistically we may not see holiday flights again before 2021. We will see a huge number of bankruptcies before then and probably suicides.

 

[dom]

The vast majority of the tourists here come from Western Europe and when leisure travel does eventually resume the expectation is that recovery in the western med and the Canary Islands will be well ahead of the eastern med. Realistically we may not see holiday flights again before 2021. We will see a huge number of bankruptcies before then and probably suicides.

Hopefully this confounded virus blows through before it terminal damages so many important sectors. One can only imagine the strain this creates in Turkey in light of the still bubbling economic and refugee crises.

Hope it all works out in the end and stay safe

 

[JumbleDuck]

Fair play. I admire and respect your approach. I'm involved in the tourism business here in Turkey so I need hardly tell you how bleak our outlook is going forward.

Thanks, and good luck. I really hope things work out for you.

 

[duncan99210]

I’m a director of a holiday village with over a hundred individual cottages, each owned by someone. Somewhere round 60% of the cottages are let as self catering holiday lets ( the remainder are used by the owners and their families). Of those who let, most use a single national holiday cottage letting agency to market and administer their lets: great deal on the face of it with all the admin taken off the owners shoulders and provided by the agency.
Owners who used this agency were recently asked by the agency how they wanted to respond to bookings in the light of the pandemic. All our owners agreed to cancel and refund deposits and (for Easter breaks) the full rental: they returned the money received so far to the agency in the expectation it would be refunded to customers....... Not so. The agency is retaining all the money and offering new bookings with a “generous“ no admin fee.
I became aware of this when our office was bombarded with complaints from unhappy customers asking if the village management company would be making refunds. We’ve reluctantly had to decline, as we have no part in the letting system.
So what? I‘m sure that this will impact heavily on the overall business of the village but equally, I know that I’m going to be asked about how I market my cottage which is done via my own website and other on line advertising. The agency has, I think, shot itself in the foot by trying to retain people’s money probably in a mistaken attempt to survive in the current situation.
To go back to the OP, if she doesn’t get the grant under the government scheme, she should do her level best to return deposits and fees. Retain as small a proportion of the fees as is necessary to survive the next few months but offer credit notes to cover the value of double the retained portion to be redeemed against a future booking.

 

[AntarcticPilot]

I have been signatory to contracts with a "Force Majeure" clause. In my case, it was to do with providing field facilities in Antarctica to visiting scientists. The "Force Majeure" clause was there because it was entirely possible that we would be unable to provide the facilities promised if the weather or other unforeseeable conditions intervened. The "Force Majeure" clause was very simple and basically stated that the contract would be void under those circumstances.

The "Force Majeure" cloause was a standard part of contracts we signed, even if it was extremely unlikely to be invoked.

It may amuse the technophiles to learn that the research in question was about a type of Martian Rover intended to be blown about by the wind! See NASA - The Tumbleweed Rover is on a Roll