Verbal Agreement

[summerfresh]

Hi everyone as I'm new to the forums I hope I'm posting in the right place.

 

My problem relates to a verbal agreement made when I bought a house in July this year. My offer was accepted in June and there were 2 other parties above me in the chain. I was renting privately and had to give a month's notice to vacate. The sales negotiator who was dealing with the house I was buying was aware of this but regardless called me on July 12 to say the other parties would like to exchange contracts on July 19th. I explained that as I had to give a month's notice, I could only exchange contracts towards the end of August as I was not prepared to pay rent and a mortgage in August. He phoned back shortly thereafter and suggested that if the 3 parties were to split my August rent (£750 so £250 each) would I exchange on July 19th. I agreed to that but unfortunately did not get my solicitor to put it in the sale agreement. What has happened since then is that the other parties have moved to their new homes and the sales negotiator I was dealing with has left the company. Fortunately I had emailed him on July 16 after I agreed to his proposal asking him to confirm with the other 2 parties how and when they would pay the £250. He emailed me back to say that he would arrange to collect cheques made out to me from the other 2 parties and then contact me to collect them from the agencies offices, so there is an email from the company email account confirming this arrangement.

I have written to the company explaining this, and enclosed a copy of the emails between the sales negotiator and I, but the director who replied to me by email confirms he was aware of the arrangement but insists it was a private arrangement between me and the other parties and nothing to do with the agency.

The party I was buying from I had only met once when viewing the house I bought and the 3rd party I have never met let alone spoken to.

Do I have a case to take this company to small claims court for £500 (being the £250 from each of the other 2 parties in the chain)?

 

Apologies for the long post but I felt it important to explain the whole situation so as to hopefully get some accurate replies.

Any advice would be most appreciated.

Thanks

summer

[SuperVillain]

Have you tried writing to the other parties and offering them a chance to pay you directly? If not, I suggest sending a letter to each to that effect, setting out the agreement and enclosing copies of the email correspondence.

 

Do you know if the agent even discussed this with the other parties?

 

My initial thought would be that the agreement was with the other two parties and not the agent...

[The Mould]

Hi everyone as I'm new to the forums I hope I'm posting in the right place.

 

My problem relates to a verbal agreement made when I bought a house in July this year. My offer was accepted in June and there were 2 other parties above me in the chain. I was renting privately and had to give a month's notice to vacate. The sales negotiator who was dealing with the house I was buying was aware of this but regardless called me on July 12 to say the other parties would like to exchange contracts on July 19th. I explained that as I had to give a month's notice, I could only exchange contracts towards the end of August as I was not prepared to pay rent and a mortgage in August. He phoned back shortly thereafter and suggested that if the 3 parties were to split my August rent (£750 so £250 each) would I exchange on July 19th. I agreed to that but unfortunately did not get my solicitor to put it in the sale agreement. What has happened since then is that the other parties have moved to their new homes and the sales negotiator I was dealing with has left the company. Fortunately I had emailed him on July 16 after I agreed to his proposal asking him to confirm with the other 2 parties how and when they would pay the £250. He emailed me back to say that he would arrange to collect cheques made out to me from the other 2 parties and then contact me to collect them from the agencies offices, so there is an email from the company email account confirming this arrangement.

I have written to the company explaining this, and enclosed a copy of the emails between the sales negotiator and I, but the director who replied to me by email confirms he was aware of the arrangement but insists it was a private arrangement between me and the other parties and nothing to do with the agency.

The party I was buying from I had only met once when viewing the house I bought and the 3rd party I have never met let alone spoken to.

Do I have a case to take this company to small claims court for £500 (being the £250 from each of the other 2 parties in the chain)?

 

Apologies for the long post but I felt it important to explain the whole situation so as to hopefully get some accurate replies.

Any advice would be most appreciated.

Thanks

summer

 

Start your letterof like this:

Their Address here (left hand side ofA4)

Date: (put date)

Your Address details on top right hand side of A4

Page numbers to be at bottom right hand footer.

Dear Sirs

RE: Purchaseof (stateproperty details here) and subsequent contract agreed thereon with (state name of their employee here) onthe (statedate of the said contract here)

I refer to the above and all previous correspondence sent to youon the same

The fact is you have an email from the sales negotiator whoacted as an agent in this matter and agreed to collect the payments from theother two parties.

The Director is wrong in law, becausehis employee acted as agent for all three parties through the company, there was never any private contract enteredinto between you three parties and the sales negotiator, thecompany would be required to produce evidence that its employee arranged thiscontract outside of his employment contract conditions and therefore makingthis contract a private contract that the company was not a party to .

The company is liable forthe sums claimed by you pursuant to the principles of Lumley v Gye [1853] EWHC QB J73, which you will rely upon in any potentiallegal action that will be dependeant upomn your full response hereto, because, its employee or sub-contractor acted as agent for the company in respect of this contractbetween you three parties and it was he who suggested and arranged the contractwhilst employed or employed as a sub-contractor when the deal was concluded (youhave an email confirming this). And the director thereof has acknowledgedthat he knew of said contract being arranged by his employee

You need to put the above facts to the Director and the case lawand state that if no satisfactory response is received from the company that issuitable to you, you will commence withlegal action to recover the sums lawfully due and owing to you without furtherreference to him or the company and should such legal action become necessary,you shall seek your costs of such.

The agent arranged this contract, therefore he and his employees can be held legally responsible.

You allow them 14 days to respond with their proposals to resolvethis matter upon receipt hereof (send by special delivery) to yoursatisfaction, failing which, the above stated legal action will be commencedwithout further notice.

You sincerely hope that legal action to recover the sums due andowing will not become necessary and youlook forward to their swift response to resolve this matter without the needfor such.

Yours faithfully (sincerely if you know addresses name)

Mrs/Mr xzy

CC. CEO & theChairman of the company

Amend the above to suit.

Kind Regards

The Mould

[summerfresh]

Hi Supervillain, Thanks for your reply.

 

I would have written to the other parties but I do not know their new addresses. In my last email to the director at the agency I asked him to provide their new contact addresses but he just ignored that email.

 

I only had the agents word (and the emails) that he had discussed this with the other parties and had their agreement.

 

If I had discussed this arrangement directly with the other two parties then I definitely would not have brought the agent into this. In fact had he supplied their addresses I would have contacted them directly but unfortunately he has been most unhelpful.

 

I appreciate your advice and that you took the time to reply. I think I will follow the suggestion by Mould and hopefully get a result. All the best.

 

Summer

[summerfresh]

Hi Mould,

Thanks for the detailed template letter. It seems like you're very familiar with this type of scenario or you've dug up some very helpful information.

I will certainly be amending your letter to my situation and will send it to the estate agency by special delivery.

Thanks very much for your time and effort in helping with this issue. I will post back when there is some relevant news on this

Regards

Summer

[The Mould]

Hi Mould,

Thanks for the detailed template letter. It seems like you're very familiar with this type of scenario or you've dug up some very helpful information.

I will certainly be amending your letter to my situation and will send it to the estate agency by special delivery.

Thanks very much for your time and effort in helping with this issue. I will post back when there is some relevant news on this

Regards

Summer

 

You are most welcome.

 

 

I am fully versed and understand contract law. The company is legally responsible for the actions of its employee, whether or not he acted as an employee or if he acted as agent for the company.

 

Have a good read of the case law I posted for you. You can rely upon this based upon the matters you have posted here.

 

Kind regards

 

The Mould

[steampowered]

I don't think you have a solid claim against the company. The company did not promise to pay anything. Any claim would have to be made against the two parties who allegedly promised to pay the rent, and you would need to call the Director as a witness.

 

You also need to check your sale contract for an Entire Agreement clause. It is common to include a clause which expressly excludes any verbal agreement and states that the only things which have been agreed are in the contract.

 

The case of Lumley v Gye posted above is not relevant. This is a case about wrongful interference in the performance of a contract by another. In this case the company has not done anything to interfere in the contract; he hasn't actively stopped the other parties from complying.

 

Probably the best you can do is keep trying to get the addresses of the other two parties and then write to them.

[The Mould]

Lumley v Gye clearly establishes that an agentinstructed or employed can be held jointly liable for damages in respect of thewrong complained of. The Principles of the case are not solely concerned with interferencewith contractual relations, recent casesclearly demonstrate this fact. (I am not going to spend my time going backover three years of work to publish the same here, weare all capable of research and study, if we can be bothered that is)

The company nor its employee or agent will notdisclose the addresses of the two other parties as this will no doubt breachData Protection Laws of England and Wales. The agent is liable and thecompany who instructed him or who employed him or who sub-contracted the workout to him, is jointly liable for thedamages claimed by the op. This isirrefutable.

Iam correct in law as regards my first post here.

Kind regards

The Mould

[summerfresh]

hi everyone I have had some news on this,

 

@ Mould, I have sent the letter as per your template and am pleased to report that the Director at the Agency replied by email with the following:

 

Dear Mr Summerfresh

 

Thank you for your letter dated 2nd Dec 2013.

 

I stand by my decision in that we are not liable for the said amount and that if you wish to proceed with legal action we will defend ourselves.

 

I too have passed this to my legal team who have confirmed we are not liable and that there is no case against us.

 

From what you have told me the agreement was set up between you, Party 1 and Party 2 and at no time was this set up or a agreed to by ourselves therefore all action should be aim toward them.

 

I have responded to all letters you have sent us.

Kind regards

Director

 

That was this morning, he then telephoned this afternoon and proposed to act as a go between to help me collect the sums due from the other 2 parties. His position is that I should claim from the 2 parties rather than the estate agency but he cannot give me the other party's addresses due to Data Protection therefore his proposal to mediate. We have agreed to have a meeting at his office this Thursday to discuss this proposal further. He has confirmed this with the following email:

 

Hi Summerfresh

 

Thank you taking my call and nice talking to you.

I can confirm I will help you all I can with you claim against Party 1 & Party 2.

 

I have booked in a meeting for me and you on 5th Dec @ 2pm in my office.

 

I look forward to seeing you then.

Kind regards

Director

 

I have drafted the following letter in response to the above:

 

Dear Mr Director,

RE: Purchase of ____________ and subsequent contract agreed thereon with _____________, 2013

I write in response to your emails and telephone call of today in which you expressed a desire to resolve this matter amicably and hopefully without the need for costly and time consuming litigation.

 

I am pleased to confirm that I too would prefer to avoid the costly and time consuming procedures involved in bring about a court case.

 

In this light I am pleased to confirm that I will attend your office at 14:00 hours on Thursday December 5, 2013 to meet and discuss a way forward with this issue.

 

Finally I point out that this meeting in and of itself does not mean I am ruling out the possibility of legal action, but simply that I am complying with the legal obligation to attempt to resolve a dispute in accordance with the Practice Direction on Pre-Action Conduct and therefore am open to discussions which would lead to the recovery of the sums due to me.

Yours sincerely

Summerfresh

 

Am I doing the right thing? Any thoughts, ideas or suggestions on all of this would be most appreciated.

Regards

Summerfresh

[mjt2013]

That sounds promising, you have nothing to lose by going to the meeting and seeing if you can't agree something.

[summerfresh]

Thanks for your advice mjt2013 I have agreed to meet with the company director on Thursday so hopefully there will be a positive outcome.

[mjt2013]

Good luck!

[The Mould]

I stand firm as regards the principles established in Lumley V Gye. That is the agent acting on behalf of the company is jointly liable for any damage caused to you by his actions.

 

Remain respectful at the meeting and hold firm on the fact that their employee, whether directly employed or who acted as an agent on their behalf, remains jointly liable with the company for the damages claimed.

 

I shall post a link to the relevant case law handed down by the House of Lords (now the Supreme Court) on this issue and the recognised and established and well settled principle's and rule of law in this area later on today.

 

Kind regards

 

The Mould

[The Mould]

http://www.bailii.org/uk/cases/UKHL/2007/21.html

http://www.bailii.org/ew/cases/EWHC/QB/1853/J73.html

The above links will take you to the relevant law as regardsyour case.

The first link is an extremely long judgement that you willneed to read carefully.

Both hold in your favour, based upon the matters of your case posted here.

Kind regards

The Mould

[steampowered]

I stand firm as regards the principles established in Lumley V Gye. That is the agent acting on behalf of the company is jointly liable for any damage caused to you by his actions.

 

Remain respectful at the meeting and hold firm on the fact that their employee, whether directly employed or who acted as an agent on their behalf, remains jointly liable with the company for the damages claimed.

 

I shall post a link to the relevant case law handed down by the House of Lords (now the Supreme Court) on this issue and the recognised and established and well settled principle's and rule of law in this area later on today.

 

Kind regards

 

The Mould

 

Agreed that the company is liable for its employees. But I think we are jumping ahead here.

 

Why is the employee liable in the first place? I'm not seeing why a contract or possible contract between the Op and purchasers makes the employee liable. The employee never made any promises, either personally or on behalf of his employee.

 

Surely the Op's claim is against the purchasers? The employee was not part of the contract and did not offer any form of guarantee for the purchasers' obligations (a guarantee would, in any event, would be unenforceable unless in writing under the Statute of Frauds 1677).

[The Mould]

Hi everyone as I'm new to the forums I hope I'm posting in the right place.

 

My problem relates to a verbal agreement made when I bought a house in July this year. My offer was accepted in June and there were 2 other parties above me in the chain. I was renting privately and had to give a month's notice to vacate. The sales negotiator who was dealing with the house I was buying was aware of this but regardless called me on July 12 to say the other parties would like to exchange contracts on July 19th. I explained that as I had to give a month's notice, I could only exchange contracts towards the end of August as I was not prepared to pay rent and a mortgage in August. He phoned back shortly thereafter and suggested that if the 3 parties were to split my August rent (£750 so £250 each) would I exchange on July 19th. I agreed to that but unfortunately did not get my solicitor to put it in the sale agreement. What has happened since then is that the other parties have moved to their new homes and the sales negotiator I was dealing with has left the company. Fortunately I had emailed him on July 16 after I agreed to his proposal asking him to confirm with the other 2 parties how and when they would pay the £250. He emailed me back to say that he would arrange to collect cheques made out to me from the other 2 parties and then contact me to collect them from the agencies offices, so there is an email from the company email account confirming this arrangement.

I have written to the company explaining this, and enclosed a copy of the emails between the sales negotiator and I, but the director who replied to me by email confirms he was aware of the arrangement but insists it was a private arrangement between me and the other parties and nothing to do with the agency.

The party I was buying from I had only met once when viewing the house I bought and the 3rd party I have never met let alone spoken to.

Do I have a case to take this company to small claims court for £500 (being the £250 from each of the other 2 parties in the chain)?

 

Apologies for the long post but I felt it important to explain the whole situation so as to hopefully get some accurate replies.

Any advice would be most appreciated.

Thanks

summer

 

The material posted by summerfresh above, clearly confirms that sales negotiator is liable.

 

Kind regards

 

The Mould

[The Mould]

Further, the email confirming the agreement has been sent via the company's email account, therefore, company and sales negotiator are jointly liable.

 

Kind regards

 

The Mould

[steampowered]

The material posted by summerfresh above, clearly confirms that sales negotiator is liable.

Why?

 

Further, the email confirming the agreement has been sent via the company's email account, therefore, company and sales negotiator are jointly liable.

 

I do not understand why you think the fact that an email came from the negotiator's email means the negotiator agreed to accept liability. It seems to me that the negotiator was only acting as a messenger. The negotiator simply told summerfresh what the potential purchasers agreed to do. The negotiator did not promise to do anything himself. There is no implication of an agreement between summerfresh and the negotiator, or that the negotiator would agree to make up the difference if the purchasers failed to cough up.

 

It seems to me you are arguing the negotiator agreed to guarantee the purchaser's promise. Even if this is correct, and I don't think it is, you have to grapple with the statute of frauds which provides that a guarantee for someone else's obligations must be in signed writing.

[Ganymede]

Further, the email confirming the agreement has been sent via the company's email account, therefore, company and sales negotiator are jointly liable.

 

Kind regards

 

The Mould

 

 

 

It's been a while since I studied employment law but are you sure that the employee can be personally liable?

 

If I worked in Currys and sold you a faulty TV I wouldn't be personally liable to repair it etc.

[summerfresh]

Hello again all and thanks for all your kind replies and advice.

It seems I've opened a legal pandora's box here which wasn't my intention but anyway to update the thread my meeting with the company director was quite positive in that he says he understands my position and that he agrees that those who entered into an agreement should honour it and to that end he is prepared to assist me in collecting the outstanding monies from the other two parties by delivering a letter to them from me requesting payment of the money due or face legal action. I personally am in agreement with this as it is them who consented to the agreement in the first place and therefore should be the ones who pay up.

In the course of our discussion the director stated that he did not believe his former employee would have been misleading or dishonest in his representation of the facts (this was a position I intimated might have occurred). Furthermore the company director stated that if court action becomes necessary his former employee can be contacted and called as a witness if necessary.

I hope what I have done makes sense, or am I being gullible, again?

Once again any advice is greatly appreciated.

 

Regards

Summerfresh

Edited December 6, 2013 by summerfresh

[steampowered]

I agree with that approach. Try contacting the purchasers first, but if it becomes necessary to sue them you will need the support of the estate agency (ideally an email from the purchasers containing the undertaking or at least a witness statement from the former employee ... though if you have nothing in writing from the purchaser it would be a difficult claim)

[The Mould]

“Fortunately I had emailed himon July 16 after I agreed to his proposal asking him to confirm with the other2 parties how and when they would pay the £250. He emailed me back to say thathe would arrange to collect cheques made out to me from the other 2 parties andthen contact me to collect them from the agencies offices, so there is an emailfrom the company email account confirming this arrangement”.

The above confirms an agreement from the sales negotiator while he wasemployed by the company.

That agreement was that; he confirmed in his email from the companyemail account that he would arrange to collect the cheques from the otherparties made out to summerfresh.

The Statute of Frauds 1677 andagreements of guarantee do not apply to this matter as regards the material postedby the op, in this respect, I meanno disrespect to you Steampowered but you appear to be driving a coach into afield that has no relation to the case posted by the op and I have not suggested that any guaranteewas given by the sales agent, therefore, the horse power you intend to use on thismatter, isbeing wasted.

Gany, Curry’s and their pimple nosedstaff arranging the selling of any oftheir goods which turn out to be faulty, has absolutely nothing to do with thecircumstances of the case posted here by summerfresh, again, no disrespect intended towards you, but the material posted by you has nocomparators with the case posted by summerfesh and thesame would only apply to the Sales of Goods and Services Act.

Summerfresh, Iwish you the very best of good fortune as regards this matter and I repeat thatI stand firm on the matters of law that I have posted here on the case that youhave posted here.

The above 4.5 paragraphs (above) clearly distinguishes this matter andthe area of law and principles established, well recognised and settled therein that deals with such

Godzilla to all

Kind regards

The Mould

[steampowered]

That agreement was that; he confirmed in his email from the companyemail account that he would arrange to collect the cheques from the otherparties made out to summerfresh

Agreed. I acknowledge the sales negotiator promised to collect the cheques.

But I do not see any agreement to write the cheques. It was the purchasers who promised to write a cheque not the negotiator.

What happens if the cheques are never written? It doesn't sound like this was agreed. Nothing in the Op's posts suggests to me that the negotiator agreed to write the cheque himself, or offer any form of guarantee for the purchaser's obligations.

From my perspective, this looks a bit like trying to sue DHL in circumstances where you have arranged for DHL to collect a cheque or package, but the cheque/package is never provided at the collection point. You can't blame DHL for this.

[The Mould]

The sales negotiator agreed to collect the cheques from the other two parties, therefore, he is liable for damage claimed; the company is jointly liable, because the promise was given to the op via the company email.

 

The agreement promised is not to write the cheques for the amounts due and owing to the op (that's you summerfresh), the agreement was that he would collect these sums from the other parties and he agreed to undertake this while employed/acting as agent for company, which is why he used the company's email account.

 

Thank you for your swift response steam, it is much apprfeciated.

 

Godzilla.

 

Kind regards

 

The Mould

[summerfresh]

After several months of email ping pong with the agency Director I'm back to square 1. He delivered a letter to party 1 who replied denying agreeing to the negotiators proposal. He never managed to obtain the new address of party 2 or so he claims and I'm sure they too would deny entering into this agreement. It seems that I'm back to my original option of small claims court.