Pre-Order Ethics

I think your LHS or whatever company you ordered the product from initially should advise you that mfr X isn't going to produce the product and that they offer to order the similar product for you from mfr Y. I think it would be appropriate for you to bring up the subject with the company from which you ordered. If mfr X didn't make the product, how can you be obligated further?

Phil

Just go to the first dealer your ordered from; describe the situation as you described it here; and see what he advises.  Chances are, since you have an established relationship with him, he'll let you out of that previous pre-order.

Good advice.   But, what happens to my dealer who I have a good relationship with.  Does the dealer still have to eat the pre-order or if the MFG fails to perform can the dealer in turn ethically or contracturally cancel the pre-order?  Anybody know what the accepted business practice is?  Seems to me an ethical MFG who is not performing for whatever reason should let the dealer out of the pre-order. 

Yeah I know I can call my dealer and ask these questions.  But, answers will likely vary from dealer.  And I'm looking for generally accepable business practices and ethics across the business segment that supports our hobby.

I have not preordered any thing in a while. When I did preorder, I took the merchandise whether I still wanted it or not.

Bill,

The only good answer will come from the place where you placed the pre-order.

But if it was me, I'd cancel the 1st order.  Being it was not delivered when promised, that makes any good faith deal null and void as far as I'm concerned.

Question, are you talking about cancelling the 1st pre-order from maker X and ordering the 2nd one from maker Y FROM THE SAME DEALER?  In that case I'd DEFINITELY take it up with the dealer you order from.

Cancel it.

Unless MFG X has actually taken any steps to produce the model, and is able to give a definite time frame for its production, I cannot see that there is any ethical or commercial problem in changing your order, and I imagine a local dealer who you have bought from over a period of years will take the same view. The fact that MFG Y is coming out with a more up to date version probably means that MFG X is a lot less likely to bring its product to market, so in a sense you are off the hook.

I have not had a situation quite like this. I did place an internet order about three years ago for a HO version of one of my favorite engines (SP AC-12) and although it's still advertised with a production date "TBA" I can't imagine it will ever be produced. If you place a pre-order with someone like Sunset 3rd Rail the terms of it are very clearly spelled out on their website and you know that within a reasonble time scale the model will either be made or Scott will notify people that it won't.

Does a pre-order involve a down payment? That should involve a contract with a specified delivery date. If the delivery date is not met, deal cancelled, money refunded ... I would think. Unless you are willing to hang in there for something that you really want and can't get otherwise.

It appears some of the manufacturers wait for pre-orders to accumulate sufficiently before actually going forward on production.

A pre-order is a contract.  Like CW Burfle, I have never backed out of a pre-order because I changed my mind.  You have to uphold your end of the contract.

But so does the other party.  The contract was for that item to be delivered at that price by that date.  If the mfg does not meet those metrics, it has failed on its side of the contract and the contract is null and void.

It is noble of you to be concerned about your LHS being left holding the bag, but ultimately that is between him and his supplier.   If it is possible to order the new MFG Y's product through the same LHS, that might ease the sting.

IMO

I'm a truck driver, not a lawyer, but I would say that at more than a year past promised delivery date, and no further info about a new delivery date available, you should not feel any obligation to be bound to the preorder, other than discussing it with the dealer. The dealer can then cancel the order, rather than possibly(not Likely) having the item produced and delivered, without a buyer.

Doug

I would guess that the company that you are calling a manufacture is really just an importer.  The real manufacture is some where on the other side of the world.  There may also be a distributor between the dealer and the importer.  Probably no one in this chain is happy about the way things are going.  The importer should be providing timely accurate information about items that are late.  Maybe this information is  getting to the dealer and not on to you.  I think I would contact the importer directly and see what the real story is and then make your decision.  I doubt being late will result in the item being obsolete.  If this item had been made, it would have been delivered.  On these imported trains, it seems as you never know what you are going to get for sure until you open the box.

I would agree with others, see about cancelling the existing order and placing a new one with the same dealer. They should not be on the hook for goods which failed to deliver within a committed time frame -- at least that is my experience on the importer side, trust me fail to have goods landed by a specific date and all bets are off in terms on existing orders. But then again I'm not a toy train importer, which may have different contractual agreements with their dealer networks.

Good luck!

there is a large dealer in malden ma that I have cancelled an item on order and changed it to another.  they said "thanks for your business that will be no problem".

I agree with what's been said above BUT if the dealer says he cannot cancel the order with mfg X I would place another order with another dealer for mfg Y.  When mfg X does come thru (I would wait 1 more year) with that product just raise the price by a couple hundred $ and sell it on eBay.  By the time they do come out retail price is usually higher anyway.  I have preordered items and have waited more than 1 year for them and was glad I waited.  Ex. G scale auto racks.  From first announced at York to delivery was well over a year.  But was with Charlie Ro and I trust him.

Rick

If it were me I would cancel it, 1 year late over an expected date is ridiculous and quite frankly, that contract is null and void, even if they have disclaimers saying that the date is only an estimate. A pre-order like that is a contract under the UBC, I can guarantee you that one, and one of the things that governs a contracts validity is the ability of one party to the contract to produce in a reasonable time. Even a tentative date stands as a milestone to be measured against, and in what is known as a reasonable man argument, being a year late with no sign of production, no estimate date, would make the contract null and void in my opinion (I am not a lawyer, but had to study the nature of contracts in business law classes in grad school). The LHS if they had half a brain would have told you to cancel it and told the manufacturer to stick it, and if there were any repercussions expect a phone call from their lawyer, because it is ridiculous. 

I would cancel it with your local LHS, and if they gave you a hard time because you wanted to do that, tell them to stick it where the sun doesn't shine, and order from someone else the product for company why. Your LHS is caught in this charade as you are, so they should understand, and if you get it is your duty to stick by the order, laugh at them. You showed good faith, you waited well beyond the expected date, there is no sign of it being made, etc, so why should you be stuck waiting? 

I am sure the lHS, the distributor and everyone but the factory supposedly making it gives a crap (one of the joys of outsourcing to places like China is they know they have you over the barrelhead, SLA's, quality, don't mean anything to them, and they know you are a captive audience, so they basically laugh about things like honoring contracts to the letter), but if they cannot understand why a customer would cancel an order, they don't deserve the business. I have pre ordered other things, and when they were delayed, they always got in contact with me regularly, and asked if I still wanted it. The distributor should have been on the line with the LHS letting him know the status, and give the LHS/You the option to either stay in the queue, or give up.

BTW here is a classic example where an LHS can show its worth. If a customer had a product on pre order, the blew by its date, I would be calling the distributor or manufacturer to find out the status, and if I felt like they were jerking me around, I would let my customer know what was going on, and basically tell them if they wished to cancel it, that would be okay, and I would fight the battle with the distributor over whether they could force me to take it for you (I doubt it, especially if my lawyer wrote them a  nasty letter). 

I don't pre order stuff, but I read all the time threads on here about people's experience with it, how stuff is way late, doesn't show up, and no one seems to give a darn , and I see the people apologizing for it, basically telling customers it is the only game in town, it is the only way that these units will get produced and we should support it, and that is ludicrous, that is an excuse for bad service and even worse supply chain management. I am not going to feel sorry for Lionel or MTH if some supplier in China fouls them up or otherwise jerks them around, they signed a contract with the supplier and if they can't make it work, tough tooties. Even if they are producing something I would love to have, I don't need it to exist, and if what they think of me ordering something costing 1500 bucks is a patsy dumb enough to sit and excuse their lack of honor, I have two bridges and a tunnel to sell them. 

As someone who teaches contract law, I am not sure a "pre-order" is a contract.  

Contracts typically require an offer and acceptance. A manufacturer's advertisements do not create an offer. The customer's placement of the pre-order is likely an offer to buy, but for a contact to be formed there would have to be an acceptance of the offer - an express or implied promise to deliver the goods - on the other side.  If the offer was not accepted, no contract has been formed.

In any event, assuming a contract without a specified delivery date was formed, at some "reasonable" time the failure to deliver the goods would operate as a failure of conditions of exchange.  The result is that non-performance by the buyer would be excused.

It's going to depend upon the dealer and your relationship. If you didn't give the dealer a deposit, you're not going to have a problem.

In the 90's a lot of the pre-orders required deposits. And sometimes you didn't like what you got. I NEVER had any problem with Western Depot, JusTrains (Kirke was spectacular to do business with) or the Train Station. I was a regular customer with all of them and they treated me well.

I did order an I-5 from Weaver, gave them the required deposit, and when it took WAY LONGER than promised and MTH put one in the catalog, I canceled it and they kept the deposit. I wasn't pleased but I understood.

Contracts law is nice, but possession (of your money) is 99% of the law since it is costly to sue.

Gerry

That is a good point written by an expert. On the other hand, if a pre-order is not considered a contract, then the person on the buying side can cancel it, since there is no duty for him/her to buy it. As I learned (one of the more fascinating parts of business law) that it is all in the wording of any agreement and who is making it. An advertisement is not a contract, for example, but if some written communication comes from someone in authority in the company,it can be considered binding (if, for example, the CTO of a software house sends you an e-mail stating their new accounting system will be 30% faster then your existing one), that could be considered binding (not really a contract, more affirmation of fact, been about 18 years since I took the class).

I don't know what the terms of these pre orders are, for example, is there are written form where the buyer agrees they want the unit and the LHS is the agent...I don't know enough about them.

For me, I think the major point is whether there was a contract or not, the pre order agreement is unenforcible, and even if there was boilerplate language saying delivery dates were an estimate, I suspect that a year after the estimate delivery date, with no message from the deliverer about when it would be available, it would be considered unenforcible...I seem to recall (and you would know much better, obviously) I seem to recall that in anything that can be considered a contract, that you cannot have an indefinite date to deliver, that that would be giving too much power to the seller and abuse the idea of a contract..but it has been a long time, and I am not a lawyer.I also realized I had a major typo, it is UCC (uniform commercial code), not UBC

I would just ask the first dealer I would think he would understand will you place the second order with him?

If it is a year late, well, your a patient man.  I would cancel in a heartbeat, and get any payment I made returned to me, a year late is inexcusable.  Would you wait for someone to fix your washer, or car, or sell you a computer for a year. I could not. Fred

All of my currently active preorders--none of which have been delivered as originally announced by the manufacturer--are with my not-so-local local dealer.

I'm in no great rush to receive any of the items, so don't really care how long it takes.  When one of them finally gets into my dealer's hands, I'll make the drive over with checkbook in pocket and pick it up.  As it turn out, one of these long-awaited items is arriving this coming week, so that means a trip out into the crummy winter weather next weekend.

Although I only preorder something if I know it's an item I definitely want, at some times in the past I've waited for two years or more for an item to arrive.  No big deal...I just look at it as an early or late Christmas present when it finally gets here.

On one occasion, and working with a different dealer, I had an item on preorder that was taking forever (seemingly) to be released.  A competitor came up with a nearly identical product which was immediately available, but only through another dealer.  I contacted the first dealer (I was not a regular customer) and asked if he would be willing to cancel my original order if I purchased something else from him of similar value.  This particular dealer was willing to work with me in that transaction.

If you have an established and decent relationship with your local or even long-distance dealer, I can't imagine he wouldn't be willing to work with you if some circumstance changed and/or the product was very late.  Personally, I consider six months or so to be "very late."

Trust me, I'm not a fan of preordering.  In fact, I really despise it.  But given the current state of the hobby and the economy, and in light of the fact that many of these products are made in VERY short production runs that are often pretty much based on consumer interest (read that as "preorders"), people do need to understand that if they aren't willing to commit to an item in advance of its manufacture, it may not be made at all.  If you're willing to accept that possibility, then just don't preorder.

Thanks to all for the excellent inputs.

I contacted my dealer and cancelled my pre-order today.   Dealer stated a new policy to get a 10% cancellation fee for new pre-orders placed after a recent date.  No other conditions stated.

So, I guess my new policy will be to only place pre-orders with dealers who will stand behind a delivery date or will be willing to cancel when that date passes with no questions asked and no fees.

I intend to be reasonably flexible about this date. The amount of time I'll be willing to wait after the intially projected production date will vary depending on conditions.   Stuff happens and the pre-order mechanism does allow manufacturers to do low quantity projects that otherwise couldn't be done.

BUT, I WILL expect the dealer to make a committment to me.  Pre-order agreements should be a two way street with protection for both parties.  

I hope the rest of you will consider adopting this approach with your dealer(s).  Seems to me that if we ALL did this then maybe the dealers would stand up to the distributors and manufacturers in turn and we would get more consistent and realistic delivery dates.

I just want us to have a happy, healthy hobby with all concerned working together and following normally accepted business practices.   Normal business practice for agreements whether a handshake or a lengthy contract have good faith performance metrics for BOTH parties and remedies for failure to perform for both parties.

Good luck finding a dealer who will go for that.  You have to understand that delivery dates are entirely out of a dealer's hands (and even out of the manufacturer's hands in many cases).  Things just don't quite work that way anymore.

The dealer you preorder with is working for you in your best interest, but there's absolutely nothing he can do to assure delivery on a specified date.  This applies to EVERY dealer out there, so if the preorder route is not for you, then just simply sit back and wait for the actual product to show up and then take your chances in finding it on the primary or secondary market.  Sounds to me like your a very good candidate for avoiding the preorder process altogether.  It takes a lot of patience to sit tight waiting for this stuff to appear, and that's apparently not for you.

Welcome to the world of today's O gauge!

Agreed that it's out of the dealer's control.  In regards to the manufacturers however, they are ultimately responsible for the timely delivery of their advertised products to their dealers.  Doesn't matter if they make the products themselves or if they're importers only; they still have final responsibility when answering to the dealers and consumers.

One would like to think so, but that's simply not the case anymore.  It DOES matter that they are importers working with suppliers for a very small market (O gauge toy trains) and that those suppliers--today--are experiencing very significant problems of their own in a fast-changing society.  It's just not as simple and straightforward as some here tend to make it out to be.

If it's something one cannot live with, I guess the answer is to stay with secondary market purchases from this or earlier eras.  If you don't have either the patience or tolerance level to handle these delays, it's time to re-think your goals and direction in this hobby.  It's just time for some to undergo a healthy reality check.

Give them 6 months past the proposed due date. If they don't have something concrete and definite to say by then, screw 'em. Life's to short as it is t o wait on people who don't keep thier word.

Harsh but my experience in life is once the waffle starts, don't ecpect anything. At least that's how it is with my in-laws.

Some on this forum view a pre-order as a sacred obligation to purchase the item whenever the dealer might have it to sell to you.  I'm not one of those people.  For me a pre-order is nothing more than a promise to purchase the item at the stated price if it is delivered around the time promised and with the features and quality promised.  So what's in it for the dealer?  My promise helps him know how many units to order.  Also I will take the item at that price even if the item is available for less elsewhere.

I rarely pre-order because of the delays but back in 2009 I did order the MTH GE EVO and was delivered 3 years later. Glad I waited.

My dealer gave me the chance to cancel but I told him no.

If you have been buying trains for anytime you know there are going to be delays, some short and some long. You have to deal with it if you pre-order. Don't worry about the things you can't control.

Thanks again for all the responses to date.  As far as I can tell, though, we haven't heard from any "suppliers" (dealers, distributors, manufacturers or importers).  Hmmmmm. 

Anyway, from now on when I place a pre-order I will do my best to get the "supplier" to agree that if product delivery is "significantly" delayed then I can cancel out and move on.  "Significant" will vary.  But, 3 to 6 months feels right for starters.  There will always be exceptions.  A niche product; very low quantity item is an example.

If supplier A won't agree to this then I'll call another supplier until I get a fair, two way deal.  

I will continue to be an 'early pre-orderer" for products from "suppliers" with a good track record. I will no longer be an "early pre-orderer" for products from suppliers with a spotty record or those that ask for up front money or cancellation fees.  I'll wait to the very last minute to pre-order-- when I know the product and delivery is real.  If I miss out I'll look for the product from the usual sources on the open market..  With the exception of the very low quantity highly specialized items they usually show up.  And often stay on the market for a lengthy period.

I hope you all will consider doing the same.  A pre-order, however informally or formally initiated is a contract between two parties.  In any business segment I can think of except model trains there are at the very least "good faith" performance parameters for BOTH parties with conditions associated for failure to perform for BOTH.  

Even the best of an intended transaction can sour. When I was in project management before retirement, we all agreed that a contract is only needed when "something goes wrong." I had to coordinate as many as twelve contractors and their subcontractors to boot. That situation is much more fraught with possibility something or several somethings could go wrong with a delivery schedule.

The key to making all this work was "reasonable efforts" on everyone's part and reasonable means good communication and taking nothing for granted in terms of updating one another before misunderstandings occur and escalate into conflict.  One thing that is apparent if the local hobby shop and their customer are not routinely updated by the supplier, it's not the fault of either one but they ( if you will)  are stuck "holding the bag." In this day and age of "instant communication, in my book, this lack of updating the users and sellers of a product is just bad management of this arrangement.

electroliner.  Bully!  Totally agree. 

By the way.  Me too.  IT Project Mgr for 20 years of my career.

Maybe we should encourage the mfgrs to read a book or take a course on project management.   Better yet, let's offer to teach them the fundamentals in return for free product  -- delivered on schedule!

I'm with Allan on this one.  Every item I've pre-ordered in at least the last decade has seen extreme slippage. Given the fact that, at best, I could probably hope to scratch build only one or two of these items the wait time is of no concern to me.  For the record, the longest wait was over 5 years but it was worth it.

Oh they're out there.  While it's understandably outside the bounds of reasonableness to expect the DEALER to guarantee a delivery date, the big guys like Charlie Ro have a very flexible cancelation policy for pre-orders.  No deposits required... and nothing is charged to your credit card until items ship... which is the way it should be.  And no cancelation fees are an added bonus!

Obviously for smaller shops, you need to be much more sensitive to how canceling a pre-order can impact them negatively.  But for places like Ro, it's just a blip on their radar screen.  And frankly, I'd bet most of us would very likely purchase something else (either immediately or very soon down the road from the dealer) if we needed to cancel a pre-order for reasons related to lack of delivery.

The complexities of the importer/manufacturer/supplier relationships related to overseas manufacturing should not be borne solely by the consumer.  In all fairness, it should be borne by the party who's standing to make the most profit in the supply chain.  Any other party along the way should be able to cancel (with no penalties) for reasons of lack of delivery... and that includes the consumer, his dealer, and even the importer when the manufacturers/suppliers fail to perform.

David

I'd like to thank everyone who took the time to reply.  I only hope those in the supply chain, the dealers, distributors, manufacturers and importers saw your inputs and will take them to heart and do the right thing.  Will only help our wonderful hobby.

As I plan my train budget and expenditures, it would be a big help to be able to base my decisions on "reasonable, credible" product ship schedules.

I just gotta believe this would be helpful to ALL concerned.  

In this day and age of "instant communication, in my book, this lack of updating the users and sellers of a product is just bad management of this arrangement.

I have to agree - and this really has become one of my pet peeves. With texting, email, cell phones - even a good old fashioned post card - there is NO excuse or reason for no communication (unless you're dead!).

I don't mind quietly waiting with a generous helping of patience. But, I am your customer. At a minimum, give me some reason to keep the faith.

There is a couple of things you can do,

1. pre-order and wait, it could be 3 months, 6 months or 3 years or it gets cancelled.

2. Don't pre-order- take your chances when it is delivered

3. Buy used

4. Most of all stop whining about product delays from our train mfgs. There will be delays, always have been delays especially in today's mfg. environment. 

5. If you want updates go to their web sites and check on the shipping times, it may not always be correct but it is the best they can do.

6. Don't ever put money down for a pre-order, if your LHS asks, go someplace else.

7. Again, stop whining!!!!!! Deal with it. More important things to worry about.

David,

In terms of everyone "whining", you might heed your own advice and run some trains as this thread has been free of unnecessary, personal and derogatory comments toward the participants views due to taking this way either way too seriously or way too personally. I would not characterize the recognition of issues and discussing them as "whining" that are not addressed to you personally as insulting to your intelligence. Take a deep breath. You said it yourself.."more important things to worry about."