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Old 20.09.2011, 00:42
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Canceling orders not delivered on time

I figure many fellows here have more experience with such things than me, so my question for today here is about the lovely subject of "consumer rights in Switzerland".

Suppose you ordered some merchandise online to be picked up from a shop which, at the time of order claimed is expected to be available for pickup within a week.

Now over a week later, the shop still does not report to have the merchandise available, and cannot say how long it will take them to fulfill your order.

In the meanwhile, you find that there is now a second online shop which sells the same merchandise at a lower price and has it on stock. All other things being equal, the sensible action would be to buy it from the second shop, and cancel your order from the first shop.

What should you do however, if the first shop will not let you cancel it right away, claiming that your order is binding and that they would have to confirm with their supplier first, as they had it back-ordered just for you?


I am in this situation now. I expect it will resolve itself as after being refused by a respresentative over the phone I wrote to the shop's service manager, who would know they little to gain from giving me trouble here.

I am curious however what the expected ways to handle such a situation are in Switzerland. I know some things involve more process here than one would naively expect, and can imagine situations in which I would want to know the legal standing ahead of time.

It is worth noting that this being an in-store pickup order, I have not paid for it yet, and would pay at time of collection of the merchandise. In such a case and circumstances elsewhere, I would feel quite safe within my rights to just buy from the other shop straight away and never coming to collect my order or pay the first one. However I know that Switzerland deals with these things less ad hoc, and one can find oneself in legal obligations if not careful.

I tried a quick search through the text of the law without going too deep into deciphering German legalese, and found SR 220 Art. 190, in the civil code of obligations, speaking of cases where a commercial transaction specifies a time limit for delivery, entitling damages to the buyer and withdrawal from the transaction. Being only an "expected delivery time" in this case the seller can reasonably claim is not a contractual time limit, and surely I would not expect damages -- however even so, I suppose the seller cannot just hold on to an order keeping it unfulfilled but holding the buyer liable for it indefinitely.

Any pointers to definitive or trustworthy sources that a customer can referred to make such cancellations less of a trouble?
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  #2  
Old 08.03.2012, 11:39
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Re: Canceling orders not delivered on time

I was going to ask exactly the same question.
Similar situation for me - ordered something, delivery is now one week late. Payment at time of collection.
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Old 08.03.2012, 12:41
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Re: Canceling orders not delivered on time

Here the answer would lie in the Schweizerischen Zivilgesetztbuch. OR.

As far as I know your next step is to settle a new delivery date with the seller - because, according to the OR you have to give him a chance. Should he not hold to the arranged delivery date then you can cancel.
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Old 08.03.2012, 12:43
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Re: Canceling orders not delivered on time

So can I ask to deliver before end of (current) week, which means by tomorrow?
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Old 08.03.2012, 13:18
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Re: Canceling orders not delivered on time

You should check the shop's Allegemeine Geschäftsbedingungen (AGB) - which should be referenced on the website. Often you are required to click a 'Yes I accept the AGBs' button when ordering.

Watch out for phrases like "Eine Überschreitung der Lieferfristen begründet keinen Vertragsbruch. " That is (more or less), delayed delivery does not constitute a breach of contract on their part.

If something similar is in the shop's AGBs, and you clicked that you accept them, then you might not have any recourse.
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Old 08.03.2012, 13:21
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Re: Canceling orders not delivered on time

AGB says something like that:
Eventuelle Terminüberschreitungen berechtigen weder zur Annullierung des Auftrages noch zur Geltendmachung von Ersatzansprüchen. Falls ein verbindliches Versand- oder Lieferdatum überschritten wird, steht es dem Besteller frei, eine Nachfrist zu setzten.

So as I understand I can ask for a different delivery date, but can it be tomorrow?

BTW: If there is a law which allows cancel order when not delivered on time twice, how any AGB can say something different?
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Old 08.03.2012, 13:49
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Re: Canceling orders not delivered on time

Switzerland is very liberal in respect to sales contracts (See Art. 19E OR). Both parties can agree on more or less what they want. Thats why it is very important to read and understand the contract and its general terms & condition (AGB)

By the way. The Code of Obligations / Obligationenrecht / Droit des obligations / Diritto delle obbligazioni / Dretg d’obligaziuns
and the Swiss Civil Code/ Schweizerisches Zivilgesetzbuch/ Code civil suisse/Codice civile svizzero/Cudesch civil svizzer
are both available in English, German, French, Italian, and Rumantsch respectively.
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Old 08.03.2012, 20:13
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Re: Canceling orders not delivered on time

Quote:
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AGB says something like that:
Eventuelle Terminüberschreitungen berechtigen weder zur Annullierung des Auftrages noch zur Geltendmachung von Ersatzansprüchen. Falls ein verbindliches Versand- oder Lieferdatum überschritten wird, steht es dem Besteller frei, eine Nachfrist zu setzten.

So as I understand I can ask for a different delivery date, but can it be tomorrow?
No. You have to give a reasonable amount of time for him to deliver. What is reasonable? There is not fixed amount of time - it depends on what is to be delivered. Generally, 7-10 days is considered reasonable. If you want to cancel the order, you first need to send him a letter with the deadline. It is best if this is sent by registered mail. Make clear that if there is no delivery by this time, you will cancel the order. If and when that deadline comes and nothing has been delivered, then you have to write again, noting the missed deadline and stating that you are withdrawing from the contract and want your money back. Give a deadline for the return of the money. Again, it must be a "reasonable" deadline.

Quote:
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BTW: If there is a law which allows cancel order when not delivered on time twice, how any AGB can say something different?
If you are following the letter of the law concerning default (Arts. 102-109 of the Code of Obligations), the AGB can say something different but it won't matter. If by "the AGB can say something different" you mean this part "weder zur Annullierung des Auftrages noch zur Geltendmachung von Ersatzansprüchen", this does not contradict the law at all. Rather it is restating it. This clause is simply saying that if we are late delivering, you can't call up and say "stuff it" without giving them a chance to deliver.
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Old 09.03.2012, 16:24
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Re: Canceling orders not delivered on time

Hi,

I had the following situation:
- I ordered an item online from one of the big stores in CH and requested for a pick up at the store closest to my location. At this time the item was available (though a few units in stock)
- I paid for the item by Credit Card. The payment was processed immediately.
- The order was accepted.
- Later on there was no info on delivery (in 2 weeks time). I contacted the store, however they passed the customer service number to me asking me to contact them.
- Customer service asked me to write an email reporting the issue which I did requesting for a definite time with in which they would deliver the item (I even told them that I am prepared to wait for a reasonable time e.g. 4 weeks or so)
- After these emails, they amended my order with a note saying that they are facing the difficulties with supplier and can not provide a date for delivery
- When I insisted on a confirmed delivery date, they said you can cancel your order and we will refund the money back as they can not provide a confirmed date for delivery of item.

PS: This item is not a scarce item and was available at two other vendor's outlets (as per toppreise.ch)

What are my rights as a customer in this case and how can I enforce them should I encounter the same situation next time? For now I was too busy to follow up and canceled the order (still awaiting refund) and bought the item from another shop.

Regards,
Piyush
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Old 09.03.2012, 16:27
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Re: Canceling orders not delivered on time

Thanks for answers. Regarding my case the seller said that they can not cancel now because they have confirmation of delivery and it should be there in a few days.
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Old 12.06.2012, 22:01
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Re: Canceling orders not delivered on time

I ordered furniture in a store nearby almost 3 weeks ago and was asked to pre-pay in cash. Delivery time was verbally agreed to 1-2 weeks.
We had received a discount of 15 % (after asking for the discount; we had seen the same furniture in a different store for 15% less) and free delivery, so we thought we had done a good deal.
It is important for me to know a date and approximate time since I'm working. I've called 4 times over the course of the last 10 days and every time I am told that it will be delivered one of the next days and that they will call me back in 5 minutes, the next day, .. with the date and time. Anyways, according to my last call, the furniture will be delivered tomorrow but they did not call me with an approximate time and they did not answer my calls today. Therefore, I decided to stop by at the store on my way home from work to ask for a time. There was nobody in the store, it was close to closing time. I asked for the time of delivery for the next day and the owner told me that there are no deliveries tomorrow but that they will deliver in 3 days. Since they keep delaying the delivery time, I asked to have this date in writing together with an approximate time. The owner became loud and angry and told me to leave his store because what was I thinking: if he says that it will be delivered, it will be delivered! I carefully stated that we had been given many delivery dates already and that I wanted it in writing this time and that if it was not delivered in 3 days, I want to cancel the order and have my money back. Then he became aggressive to a point that it scared me; he was yelling and spitting in my face, waving his arms around. I could not believe that a store owner would talk like that to a customer. I told him as calmly as possible that there is no need to become so aggressive towards a customer. But he kept cursing and yelling and telling me that I am wasting his time, that he will never give me my money back, that he will not write the delivery date on my order. It was not pretty. My spoken German is not good enough to reply and as I did not feel safe anymore, I left the store while he was still yelling and waving his arms. And why? Because I asked for a delivery date in writing?
Not sure what to do now. I can be home in 3 days and hoping that it will be delivered. (I will make sure my husband is home as well) Or should I send a registered letter tomorrow with the agreed delivery time and ask for a refund if not delivered. I feel like cancelling the order; every time I think about the furniture, I see his aggressive face again and feel the spit in my face.
I regret that I prepaid in cash; however this was expected with the 15% discount. I googled the store and this is what I found: "Aufgrund aktueller Informationen hat moneyhouse am 02.04.2012 die Bonität der Firma xx AG neu beurteilt, wobei eine positivere oder negativere Einschätzung möglich ist. Unter dem Navigationspunkt "Bonität" erfahren Sie, welche Informationen zur Neubeurteilung geführt haben und wie moneyhouse zur Zeit die Kreditwürdigkeit und das Risiko von Zahlungsausfällen bei der Firma xx AG einschätzt." Not sure whether this is positive or negative and whether this might explain the aggressiveness when I was asking for my money back.
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