Expert: Andreas Rossler - 12/7/2007

Question
I signed contract to purchase Pueblo Bonito Sunset timeshare in Cabo San Lucas, Mexico on Sunday 25 Nov. 2007.  I was not informed of 5 day right of cancellation.  The contract was 4 pages with the cancellation clause in 6 point font on the back of page 1.  I only found the clause 5 days later after reading and re-reading the contract and then realized there was print on back of page 1 (did I feel stupid-er).  During the sales presentation, I was required to initial understanding of 13 clauses in the contract; right to cancel was not one of them.  The clause reads, "the user shall have a term of 5 business days FROM the business day which FOLLOWS the signing of this contract in order to cancel this same contract".  I attempted to call the Sales Office on Friday, 30 Nov. but the # on business card given to me by salesperson was incorrect.  I subsequently emailed the salesperson with cc to Customer Service at 0200 on Saturday 1 Dec. 2007, and received first acknowledgement on Monday 3 Dec. 2007.  
Subsequently a volley of emails have ensued and of course they say that they won't reverse charges on BofA credit card because they did not receive within 5 days. I have reported problem to Dispute Dept. at BofA and am in process of sending them copy of everything.  
 My question is how to accurately determine 5 day right to cancel.  With literal interpretation, I am within the 5 days: 1st business day following date of contract is Monday 26 Nov., thus 5 business days FROM this date is Monday 3 Dec. 2007.  If the 1st business day (26 Nov.) is counted, then I missed deadline by 2 hours.  Is it determined by the date email sent, or when acknowledged?  Thank you!

Answer
I am not familiar with Mexico - however, to bolster your case with BofA, you can show that in the US, cancellation is effective when sent - not when received.  I think you should win this one.  As you explained it to me, you should have until midnight of December 3, 2007.  Make sure you are clear about this with BofA.  Here's what I would do...

I would write it like this:  "As written in the contract (see attached copy) I have "5 business days FROM the business day which FOLLOWS the signing of this contract in order to cancel this same contract".  I signed on November 25, 2007 (a Sunday).  The first business day FOLLOWING a Sunday, would be Monday.  In this case, Monday, November 26, 2007.  Five business days would land on Midnight of Monday , December 3, 2007. (December 1 & 2, 2007 are a Saturday and Sunday - not business days).  I sent notice of cancellation via email on Saturday, December 1, 2007 (see copy of email with header).  They sent acknowledgment that they received my cancellation email on Monday, December 3, 2007.

Therefore, I have canceled within the required 5 business day period.  However, the company is refusing to cancel the contract and refund my money.  I respectly ask that you immediately reverse the charges.  

Also, if you search cancellation laws in any state of the US, you will find that cancellation is always effective on the date SENT - not received (companies could play games and claim they were not in the office, did not get the letter, etc.).  Therefore, the law always recognizes that proof of sending is sufficient.

Good Luck.