I think I may have picked the wrong instructor - advise please

[Pizz]

In order for a contract to be breached there needs to be... wait for it... a contract.

There wasn't a contract between the OP and the instructor, therefor there can be no "breach of contract" on the part of the instructor. The term "contract" has a very specific legal meaning. Accordingly, theere are certain, specific legal requirements for a contract to exist. Those criteria may vary slightly from state to state, but signing up for a scuba class doesn't meet those criteria in any state that know of. Pretty simple.

When I formally fire this guy, I'll be lucky to get a store credit for 10 bucks. Best I've got is a verbal contract with two separate opinions (and they will be completely different) as to what transpired. I don't know about anyone else, but when was the last time you tried to get any bank to do anything for an individual customer??? They are protecting their merchant accounts like a mother grizzly and her cubs. Last time we were defrauded by a on line company, my ex-bank, basically told me to go pound sand. . .nicely of course. I'm still going to try my credit union - but I'm not going to go against the most important rule of scuba diving (I have learned a couple things. . . .so not a total loss!)

 

[flots am]

And tell them what exactly? He hasn't been defrauded and the service provider hasn't refused service.

Just to clear things up, the OP paid for a "PADI Open Water SCUBA Diver" class. (I assume it's PADI, but it could be any agency).

PADI has specific teaching and performance requirements for the class. They're documented.

If someone cares to post the PADI standards (I'm SSI and SDI and don't have the PADI standards), the OP can compare what should have been taught and practised and verified with what actually was.

If what is documented in the standards is not what the OP got, then the instructor did not provide what the OP paid for, the CC company will refund the OPs money and take it back from the instructor's account.

flots

---------- Post added December 21st, 2013 at 12:49 PM ----------

I don't know about anyone else, but when was the last time you tried to get any bank to do anything for an individual customer??? They are protecting their merchant accounts like a mother grizzly and her cubs

If you used a credit card, and tell the bank that the instructor didn't provide what you paid for, your bank will shoot first and ask questions later.

They are required by law to refund your money during the investigation and there is no way your instructor can prove that he provided what you paid for, since it's not possible to do within the time he allowed. This means you get your money back and get to keep it.

flots.

 

[Pizz]

And tell them what exactly? He hasn't been defrauded and the service provider hasn't refused service.

Sent from my Nexus 7 using Tapatalk

I agree, this guy is slick and ALWAYS ends our meetings with "I'll do as many pool sessions as needed an no additional cost" but then cancels pool sessions on short notice (three to date) - knows we both work and have to take time off for him. . .gets mad when we aren't learning fast enough. . .belittles wife, etc.. . . basically trying to "grind" us out before open water. . . .ever had work done on a car or boat that was done poorly like appolstery, an accessory install, etc. and you finally just gave up taking it back cause you just knew you were wasting your time. . .that''s the treatment I feel we're getting.

 

[The Chairman]

If you used a credit card, and tell the bank that the instructor didn't provide what you paid for, your bank will shoot first and ask questions later.

They are required by law to refund your money during the investigation and there is no way your instructor can prove that he provided what you paid for, since it's not possible to do within the time he allowed. This means you get your money back and get to keep it.

This is true but it's very, very important that you choose your words wisely. Don't couch it as a disagreement or anything less than a breach of contract. If you give them wiggle room, they also have to take that. You agreed to a Scuba class and he has not not met his contractural obligations. He has displayed a pattern of deception during the entire episode including making appointments he never intended to keep.

 

[muteki]

Holy crap, that sounds like a horrible class and bad instructor. Hope it all works out no matter what you wind up doing, but I'd cut and run too, and try to get some money back. I just dove Cozumel, and would DEFINITELY recommend some additional training, whether it's referral dives or, if you wind up certified before you get there, a refresher class or something. Current can be strong and not easy to get used to, especially after the terrible training you've been through so far.

 

[RJP]

RJP, you won't be surprised that I... Wait for it... disagree with you! To be sure, so does Wikipedia: Contract - Wikipedia, the free encyclopedia




If I pay you for a Scuba class, we have entered into a legal contract. It's just that simple. The agreement might be oral, and much of it is probably assumed, but it is a contract nevertheless. A failure to live up to reasonable expectations in such a contract is a breach of that contract.

If you want to get your money back, you have to talk their language. Quite simply that means you have to put it into terms they can use to justify their actions. Not every complaint is actionable, but not living up to the contract, or agreement is. When you put it as such, the CC company would be compelled to act in your favor.

Pete, the law doesn't care whether you agree with me or not. There is no contractual relationship between the instructor and the OP, unless they actually wrote a contract. (If you're interested, you can google "Statute of Frauds" and hopefully come up with a better legal source than Wikipedia for all of the circumstances in which an oral agreement is not considered a contract.)

Now, to be sure, I do believe that the OP does have a clear shot at getting his money back through credit card company, simply because he didn't get what he paid for which was a scuba course that met the standards/requirements of the certifying agency. I'm simply saying, however, that the failure of the instructor to deliver that service does not constitute breach of contract. To wit, if I order a ScubaBoard tee shirt and you instead send me a picture of a ScubaBoard tee shirt, I would tell my cc company that you didn't give me what I paid for... I would not claim that you breached a contract to send me a tee shirt.

The cc company is not going to want to get into legal wrangling involving "breach of contract" proceedings, whereas they are more than happy to err on the side of the consumer when "they didn't get what they paid for." As mentioned above, invoking "breach of contract" or similar language when it doesn't apply simply makes the person doing so look like a reactionary person who doesn't know what they're talking about. It's right up there with "I'll take this all the way to the Supreme court!!!!"

 

[The Chairman]

Pete, the law doesn't care whether you agree with me or not. There is no contractual relationship between the instructor and the OP, unless they actually wrote a contract. (If you're interested, you can google "Statute of Frauds" and hopefully come up with a better legal source than Wikipedia for all of the circumstances in which an oral agreement is not considered a contract.)

Read this: What Contracts are Required to Be in Writing? - FindLaw
Don't claim fraud. The contract almost certainly has to be written to claim fraud. However, most contracts simply do not have to be written. If you take money or other quid pro quo in exchange for your services, you have entered into a contract. An oral contract is just as valid as a written one. Oral Contract legal definition of Oral Contract. Oral Contract synonyms by the Free Online Law Dictionary.

 

[RJP]

Read this: What Contracts are Required to Be in Writing? - FindLaw
Don't claim fraud. The contract almost certainly has to be written to claim fraud. However, most contracts simply do not have to be written. If you take money or other quid pro quo in exchange for your services, you have entered into a contract. An oral contract is just as valid as a written one. Oral Contract legal definition of Oral Contract. Oral Contract synonyms by the Free Online Law Dictionary.

That's just not true, in all cases. In particular, in most states transactions over $500 require a written contract to be enforceable. (The Uniform Commercial Code changed raised that amount a few years back for interstate commerce, but I don't believe any state has raised their amount.).

Pete - note that the "Statute of Frauds" is not about "fraud" but merely the oddly named part of contract law that desks with oral contracts. Point of fact it was named "Statute of Frauds" because the original intent of that are of law was to prevent people from getting into fraudulent situations. It covers things ranging from verbal promises of marriage to the sale of real estate to delivery of goods or services that take more than 1year.

I believe the OP said the cost of the course for him and his wife was >$700... so would likely require a written memorialization to be considered a contract. Contracts over $500 are required to be in writing in most jurisdictions, though some states have specifics down to whether this applies to goods only, or to mixed goods/services. The fact that materials were involved (books) might well keep it in the realm of $500 of goods/services vs a "service only" agreement.

Long story short, no lawyer will take up a breach of contract claim for $700 one way or the other, so no cc company is gonna hold/refund money while awaiting the outcome of a legal proceeding that will not ever take place. The good news is, whomever is on the other end of the phone at the cc company will know less about contract law than either you or I...

 

[boulderjohn]

A lot of what you describe is the stuff that has to happen logistically in addition to the standards that have to be met. I will comment on the parts that related directly to the standards:

Clear mask (twice each)
Clear snorkle (took wife 3 times, me once)
Clear Reg and learn about purge valve
100 yard swim test and no flotation test

Did you set up and break down your gear?

Here is what is missing from CW #1:
Two different ways to recover a lost regulator and purge the regulator after recovering it.
Alternate air exercise
The swim should be 200 yards
You should have had a 10 minute float.

2nd Session (had one other student with us for 1st session)

Watched him weight the BCD's (he had to ask us how much weight he had used the first time, I knew mine cause I had asked him (16 lbs) but he had to estimate wife's again.

Told us we were going to learn to buddy breath - me and wife, him and other student, but then took us under and started us freeflow breathing again

What do you mean by buddy breathe? If you mean using the alternate regulator for an OOA diver, then that is OK, but if you mean sharing the same regulator, that is not supposed to be taught. It seems to me that you didn't do it anyway. Breathing from a free flowing regulator is a standard.

So I will list the things you missed in case you did them and forgot about them:

200 yard swim
Float
5 equipment setups and breakdowns
Two regulator recoveries
Alternate air exchange in shallow water
Deep water entry (should be more than one)
5 point descent
No mask breathing
Mask replacement underwater
Disconnect low pressure inflator hose
BCD oral inflation
Weight check
Air depletion exercise
Weight removal at the surface
Deep water exit
Neutral buoyancy under water--both with inflator and orally
cramp removal
Tired diver tows
Air depletion followed by alternate air exchange followed by one minute swim with buddy--both as donor and receiver
Controlled Emergency Swimming Ascent (CESA)
Skin Diving exercises
No mask swim/mask replacement
Hover for 30 seconds without moving hands or feet
Remove and replace the scuba unit on the surface
Remove and replace the scuba unit under water
Remove and replace weight belt on the surface
Remove and replace weight belt under water​

So, with the only exception of those 26 items, your instruction was quite complete.

By all means give this information to PADI.

 

[The Chairman]

RJP, I see no evidence of that in Nevada. Here's a great discussion of the topic on FindLaw: "Breach of Contract" and Lawsuits - FindLaw

FWIW, many attorneys use FindLaw's paid for services to conduct their research. Now you think the good news is that he's at the mercy of the CC company? Yeah, that's not comforting to me at all. Know what you want when you call and be smart in how you present your case.