Under the new Consumer
Contracts Regulations that came into force across the European Union
on Friday 13th June 2014 the statutory cancellation rights for en primeur sales have been clarified.
En primeur sales are now exempt from the right of cancellation providing three specific conditions and one general condition are met:
‘the price has been agreed at the time of the conclusion of the sales contract’, ‘the delivery of which can only take place after 30 days’
‘and the actual value of which is dependent
on fluctuations in the market which cannot be controlled by the trader.’
“It is important that all three conditions are met for the exemption to apply,’ says Andrew Park of APP Law*.
“It is important that all three conditions are met for the exemption to apply,’ says Andrew Park of APP Law*.
This rules out exempting already bottled fine wine from the right to cancellation because delivery can normally take place within 30 days. My guess is that many scam wine investment companies will fail to inform their investors properly of their rights.
In addition the customer has to be properly informed that en primeur is exempt from the right of cancellation as well as various other pieces of information such as the identity of the trader, the geographical address, telephone and fax number, email address so as to ‘enable the consumer to contact the trader quickly and communicate with him efficiently’, the total price of the goods etc. (Article 6 of the Directive 2011/83/EU).
This information has to be provided in a ‘durable’ form – print or email. If this information (Article 6 of the directive) is not provided the customer is not ‘bound by a distance or off- premises contract’.
This could mean that a customer, who had not been properly informed, could still cancel an en primeur contract after delivery (eg two years later) as they were not bound by the contract.
The en primeur exemption represents a victory for the WSTA, who have campaigned for an exemption since the Distance Selling Regulations 2000 came into force. Before Friday 13th June 2014 the right to cancel an en primeur order once the customer (or a third party agent is a bonded warehouse) took delivery of the bottled wine had always been a grey area and had never been tested in the courts.
The Consumer Contracts Regulations 2014 implements the EU Consumer Rights Directive of October 2011. There are a number of significant other changes. The right to cancel has been extended from 7 days to 14 days following delivery, which should happen within 30 days of placing the order, unless it is agreed otherwise.
Consumers have to be reimbursed within 14 days. If a consumer is not properly informed of their right to cancel they can cancel up to a year from delivery plus the statutory 14 days. Excessive charges for using a credit card are banned, only the costs involved in using a card can be charged. Premium priced telephone lines cannot be used by customer service centres.
If a customer has not been properly informed or has been misinformed then the cancellation period from delivery is extended from 14 days to a year plus the statutory 14 days. Previously this had been extended to three months plus the then statutory 7 days.
The new regulations have implications for all companies involved in distance selling. A company’s terms and conditions need to be amended to meet the changes as the consumer is not contractually bound until they have been informed in a ‘durable medium’.
* Andrew Park APP (http://www.appwinelaw.com) article on changes here. http://www.appwinelaw.com/distance-selling-of-wine-cancellation-period-increased-en-primeur-now-exempted/
Companies wishing to reply on Park's advice need to contact him directly.
Jim,
ReplyDeleteI am in the trade. Forgive the anonymity, but i am concerned about tit-for-tat posts.
A company called SJB Trading has been approaching a number of my clients making impossibly over the top bids for their wine.
They somehow know which wines my clients hold, and the approach is made by a cold call followed up by a relentless hard sell.
To put this into context, the latest client was offered £50,000 for a portfolio which in reality has a replacement value of little more that £20,000, and for which I would likely offer about £16 or £17,000.
It seems pretty clear to me that anyone falling for this trap will never see their wine again let alone their money.
Rgds
Hi Jim,
ReplyDeleteI too work in the trade and am choosing to remain anonymous as I hardly want to be on the receiving end from a company who sound like complete crooks based on what I've been told.
Similarly to the other anonymous poster above, one of my clients has been approached by SJB Trading Wines Ltd. How they were aware of my client's portfolio holdings is unknown, they may have provided some details or SJB may have been aware from other sources. What my client has shown me is quite frankly alarming and outrageous. They have used a FAKE 'insurance underwriting' firm to 'value' the wines, sending the valuation as a forward under their own email address. The insurance firm is called 'Direct Investment Insurance' and claim to be "The World's Largest Investment Underwriters". The email sign off has contact information including an address - One Canada Square (of course) - and a phone number which is disconnected. Their website link does work and takes you straight through to a very poorly designed site with spelling and grammatical errors, as well as phony information on the company's ownership and credentials. Canary Wharf Group (who own One Canada Square) have denied any knowledge of either Direct Investment Insurance being present and even the receptionist for the Regus and Abbey virtual office floors claims to never heard of the company before!
There is zero trace of the company in the Companies House records or the FCA registration.
The email from the so-called insurance company states: "This appraisal is made on the bases that the condition of the above fine wine meets the purchase requirements of the Liv | Ex fine wine exchange."
This is rich, as The London International Vintners Exchange (Liv-ex) is completely unaware of Direct Investment Insurance and had only the day before been made aware of the name SJB Trading Wines, when a fellow member contacted them to make a complaint about making false valuations using the Liv-ex name!
The client in question has a portfolio of wines valued around £18-19k, with SJB offering a 'cash payment' of £32k following delivery of the wines to their LCB account. LCB you say? The Director of London City Bond claims there is no such company holding an account, at any of their sites, and that there never has been!!!!
This is blatantly another scam, similar to that of Mayfair Worldwide Trading earlier this year. My client was very close to taking them up on their "very attractive offer", fortunately his brain reminded him when something sounds to good to be true...........
Please publish something on these scam artists before they fleece anybody. If you'd like me to forward the offending emails to you, please reply with the best email for you below and I'll do so.
Jim,
ReplyDeleteAs per the previous poster. I to am in the trade. I have had calls in the last couple of days from Clients that have also been approached by SJB Trading Limited. They have somehow managed to get contact details of these Clients illegally,and are offering to buy Clients wines at at least 30% over the current market prices. They must transfer their wines to SJB's storage account.
It's very likely these Client's will not see their wine again, let alone receive the proceeds from their wines.
Investor's should avoid SJB Trading!!!