Can I cancel offer to purchase?

[vintagevanity39]

I signed an offer to purchase a new car a couple of months ago. They took copies of my documents, but I haven't paid anything yet. I was very happy to buy the car, but the dealership keeps pushing the delivery date further. As per our last communication, I now have to wait an extra 3 months than what I was originally promised. I need the new car fairly urgently, and so I would like to cancel my offer to purchase and buy a car elsewhere. I've already found another dealership with available stock. I understand that it's a legally binding thing, but is there any way that the purchase offer can be cancelled? What penalties can I expect to pay, if any?

 

[Pho3nix]

For a car, I believe you can still rescind but smarter people might advise.

Was this a cash sale or finance?

 

[neoprema]

Checked the last OTP i signed. Nothing much about cancellation but it did say the Dealer will try to deliver the vehicle with a reasonable time.

One could argue its not reasonable anymore.

I would approach them and say you can't wait any longer. If they get dirty you could try the Ombudsman.

 

[Johnatan56]

Your contract would state if you can or not, but if they said car would be delivered within earlier time frame and they keep delaying, you can argue that conditions have changed enough that it's no longer valid as it's not reasonable to keep waiting so long if needed car for purpose then.

 

[Arthur]

All depends on the offer you made, ie the terms you freely and voluntarily offered and which were presumably accepted by the offeree. Check the contract document.

 

[Snyper564]

Checked the last OTP i signed. Nothing much about cancellation but it did say the Dealer will try to deliver the vehicle with a reasonable time.

One could argue its not reasonable anymore.

I would approach them and say you can't wait any longer. If they get dirty you could try the Ombudsman.

this is likely your only out - if you accepted the 3 month extension now you might have an issue as you would be breaching it.

 

[vintagevanity39]

For a car, I believe you can still rescind but smarter people might advise.

Was this a cash sale or finance?

It was a cash sale.

 

[vintagevanity39]

Checked the last OTP i signed. Nothing much about cancellation but it did say the Dealer will try to deliver the vehicle with a reasonable time.

One could argue its not reasonable anymore.

I would approach them and say you can't wait any longer. If they get dirty you could try the Ombudsman.

I will approach the salesperson and ask what my options are.

The conditions of sale has the following clause on stock availability: "The company shall only be obliged to perform in terms of this agreement as stock becomes available from the manufacturer. It is accordingly specifically agreed that the provision of such stock shall constitute a suspensive condition of the agreement. In respect of the company hereunder, time shall accordingly not be of the essence. Should any delay arise, then provided the delay is reasonable, the purchaser shall not be entitled to cancel this agreement solely on the grounds of such delay. Should delivery become impossible due to circumstances beyond the company's reasonable control, this agreement shall, at the election of the company, lapse and the purchaser shall not have any claim against the company arising therefrom."

They seem to have covered their asses quite nicely here, but I think "reasonable" is relative and as you say I can argue that the delay is not reasonable. I should also mention that the latest delay is due to the flooding of the Toyota plant in Durban. The 3 months was a guesstimate by the salesperson. I have my doubts about this time frame given the fact that Toyota is still assessing the damage to the vehicles and the factory is now closed. I think it could take even longer.

 

[vintagevanity39]

All depends on the offer you made, ie the terms you freely and voluntarily offered and which were presumably accepted by the offeree. Check the contract document.

You're right. I have included the relevant clause in one of my earlier replies. The conditions say nothing about cancellation, but there's something about "reasonable delay". A relative term of course, but that's what I intend to use to try to cancel the contract.

 

[The Darkness]

I will approach the salesperson and ask what my options are.

The conditions of sale has the following clause on stock availability: "The company shall only be obliged to perform in terms of this agreement as stock becomes available from the manufacturer. It is accordingly specifically agreed that the provision of such stock shall constitute a suspensive condition of the agreement. In respect of the company hereunder, time shall accordingly not be of the essence. Should any delay arise, then provided the delay is reasonable, the purchaser shall not be entitled to cancel this agreement solely on the grounds of such delay. Should delivery become impossible due to circumstances beyond the company's reasonable control, this agreement shall, at the election of the company, lapse and the purchaser shall not have any claim against the company arising therefrom."

They seem to have covered their asses quite nicely here, but I think "reasonable" is relative and as you say I can argue that the delay is not reasonable. I should also mention that the latest delay is due to the flooding of the Toyota plant in Durban. The 3 months was a guesstimate by the salesperson. I have my doubts about this time frame given the fact that Toyota is still assessing the damage to the vehicles and the factory is now closed. I think it could take even longer.

This agreement should never have been signed in the first place whatsoever. Any ‘contract’ that uses the term “time is of the essence” would be torn up if it crossed my path. What a joke! Technically, because there is no actual timeframe stipulated, they can easily argue the ‘reasonable’ timeframe since it’s now subjective, and they have you at their mercy, and a judge would look at their reasoning as valid, especially if there’s no act of God or force majeur clause embedded in this agreement.

Here’s the thing though: it’s really expensive and time consuming to sue someone. You could just send them a letter demanding the vehicle, with a timeframe you’d be willing to accept, and let them sue you, which they likely wouldn’t. In any case, if I were you I’d seek legal advice and let a lawyer do all of the communication from here on. This is school, never sign an OTP that is not in your favour and that has clear timeframes and ejection clauses. Good luck

 

[rodga]

I wouldnt even call the salesman. Get a lawyer friend to send them a cancellation letter outlining the unreasonable delay.

 

[The Darkness]

I wouldnt even call the salesman. Get a lawyer friend to send them a cancellation letter outlining the unreasonable delay.

Yes. This is the approach to take. Get a good lawyer to read the contract, find the flaws, send a letter of demand and assign a watching brief to the attorney, denying all direct contact with yourself. This will be expensive though, probably in the region of R10 to R20k

 

[A3@MBB]

Did you specify any optional extra's that's a must have or a unusual colour?
It could be tricky to get out if you wanted your Bentley with a diamond dashboard.

But if its a white Toyota Corolla Cross I would not even bother about OTP anymore and just move on to the next dealer.

 

[MidnightZA]

Should delivery become impossible due to circumstances beyond the company's reasonable control, this agreement shall, at the election of the company, lapse and the purchaser shall not have any claim against the company arising therefrom.

Maybe you can pressure them into cancelling or giving you the option to cancel on this point. But don't bring it up. They will have to find it and think they got a way out.

Demand a courtesy car because you urgently need transport and they (the dealer) are causing you unnecessary expenses with delaying the delivery.

If you put enough pressure on them (go all way to the dealer principal) they may try to weasel out of the contract on that clause I quoted above since the delay was out of their control

 

[The Darkness]

Maybe you can pressure them into cancelling or giving you the option to cancel on this point. But don't bring it up. They will have to find it and think they got a way out.

Demand a courtesy car because you urgently need transport and they (the dealer) are causing you unnecessary expenses with delaying the delivery.

If you put enough pressure on them (go all way to the dealer principal) they may try to weasel out of the contract on that clause I quoted above since the delay was out of their control

Except that the word 'impossible' is legally flawed in this contract too. The delivery is possible, just in a few months time, and since the OTP doesn't specify a timeframe suspensive clause, it is nothing for Toyota to keep the buyer on the line until they get the car into stock, and likely there's a clause in there that the price quoted is subject to adjustment too.
Why would one ever need to sign an OTP on a standard vehicle is beyond me.

 

[Vis1/0N]

Just take the other vehicle and when the first one comes trade it at a profit.

 

[vintagevanity39]

A happy update - I was able to cancel the OTP without any penalties. I didn't go the lawyer route; instead I spoke with the salesperson who sympathised and let me off the hook. As someone in this thread guessed, I had ordered a Corolla Cross and I'm sure they'll have no trouble whatsoever finding another buyer whenever the car becomes available.

 

[Brawler]

Probably a good thing in the end. I think there are going to be a lot of water-damaged vehicles sold as new soon.

 

[Mystic Twilight]

You're right. I have included the relevant clause in one of my earlier replies. The conditions say nothing about cancellation, but there's something about "reasonable delay". A relative term of course, but that's what I intend to use to try to cancel the contract.

For future reference, be aware the "reasonable" part in your posted clause isn't a reference to time, but a reference to the excuse for the time taken the way the wording is provided, such as 8 month delay due to durban flooding vs 8 month delay due to "because I can". So a 2 year delay due to durban flooding, if true, is a valid reason.

 

[Fittwitt]

I signed an offer to purchase a new car a couple of months ago. They took copies of my documents, but I haven't paid anything yet. I was very happy to buy the car, but the dealership keeps pushing the delivery date further. As per our last communication, I now have to wait an extra 3 months than what I was originally promised. I need the new car fairly urgently, and so I would like to cancel my offer to purchase and buy a car elsewhere. I've already found another dealership with available stock. I understand that it's a legally binding thing, but is there any way that the purchase offer can be cancelled? What penalties can I expect to pay, if any?

Curious - did you ever sort this out? And what car was this for?