Threatened with small claims court

[sailor sam]

But the buyer 'accepted the goods' (not refused) with a reciept with 'sold as seen' written upon it at the point of sale. So how can you say that the buyer 'is deemed to have refused to accepted the goods to start with?

 

The fact of the matter is; 1) Yes a fault developed just after the sale which seems to have been a radiator and hose failure. There could have been any number of reasons for this including some kind of collision causing damaege to the said parts. 2) The buyer then chose to have the repairs done without any consultation with the seller, thus removing any opportunity for the seller arrange the repairs himself. 3) No warranty was offered (or is legally in place) on the car what so ever. 4) The buyer has so far not provided adequate proof that the 'fault' was not a result of her own negligence as suggested in fact #1. 5) It was a private sale and as such SOGA will generally only apply if the vehicle was miss-represented in any way which in this case (according to the OP) it wasn't.

 

Now taking the above into account, would you persue this in court?

 

__________________

Please Note

 

The advice I offer will be based on the information given by the person needing it. All my advice is based on my experiences and knowledge gained in working in the motor and passenger transport industries in various capacities. Although my advice will always be sincere, it should be used as guidence only.

 

I would always urge to seek professional advice for clarification prior to taking any action.

 

Please click my scales at the bottom of my profile window on the left if you found my advice usefull.

[Bookworm]

Just for additional, but important info: a receipt that says "sold as seen" a) has no legal value whatsoever, b) may be even illegal if used as an attempt to restrict statutory rights.

[Bookworm]

Perplexity have a read of this

 

Sale of Goods Act | Consumer Information

 

Follow all of the links and NOT ONE of them confirms your understanding that a private sale (ie where the seller is not a business) is covered by the SOGA.

Sorry Mossy, but you are mistaken on this one. The clue is here:

Firstly, remember that the statutory entitlement of quality and fitness for purpose only applies when buying from someone who is ‘acting in the course of a business’ i.e a second-hand car dealer. You do not have any legal recourse as regards quality where you are buying through an individual who is selling an item as a one-off private sale (although they must have legal title and it must be as described in the advert).

;-)

[Mossycat]

Sorry Mossy, but you are mistaken on this one. The clue is here:

;-)

 

Hey up Bookworm

 

Yes I spotted the clue, but I read that the OP described the car accurately, saying a car had been very reliable (if it had been is in my opinion stating a fact), is NOT the same as guaranteeing it to be reliable.

 

I rarely venture out of insurance related threads but I'm fairly certain on this one that the OP is in the clear.

 

Mossy

[Bookworm]

Well, that's what I have been trying to say, that it's not as clear-cut as that... Semantics are a tricky thing at the best of times, as an insurance person, you'll know that better than most, lol.

 

If OP had said: "I have always found the car reliable" for examlpe, that would be accurate. Saying "very reliable" for a car that breaks down the next day patently shows that the car was NOT very reliable, it's a QED thing really.

 

What it then boils down to is whether the OP's opinion then becomes a contributing factor on how it influenced the buyer's decision. Would she have bought the car if it hadn't had the "very reliable" opinion? Would she maybe have negotiated a different price? etc, etc... the fact seller didn't intend to deceive in his description is really irrelevant if the seller then lost out significantly (as she obviously did).

 

OTOH, we all can agree I think, that her behaviour was less than reasonable. OP's behaviour was consistent with wanting to set the wrong right and goes a long way to convince of his genuine standing. Buyer's behaviour is the exact opposite.

 

In a court where a decision will be based on balance of probabilities, I am firmly convinced that this could be the decisive factor... if it goes that far of course. ;-)

[Mr lex]

What it then boils down to is whether the OP's opinion then becomes a contributing factor on how it influenced the buyer's decision. Would she have bought the car if it hadn't had the "very reliable" opinion? Would she maybe have negotiated a different price? etc, etc... the fact seller didn't intend to deceive in his description is really irrelevant if the seller then lost out significantly (as she obviously did).

 

OTOH, we all can agree I think, that her behaviour was less than reasonable. OP's behaviour was consistent with wanting to set the wrong right and goes a long way to convince of his genuine standing. Buyer's behaviour is the exact opposite.

 

The common sense approach

 

I think we can all agree this is going to be a 'see what happens next' jobby.

 

Any further contact from your buyer Privateseller ??

 

Lex

[perplexity]

Sections 34 & 35 of the SOGA were designed for goods delivered, not collected, but they serve to point up the principle, that it makes a difference that the buyer went ahead to have the repair work done, on the one hand, while a buyer may also think it reasonable to expect to have the chance to see if a car works.

 

It could all have been so much clearer if the buyer backed out straight away but this would have to be judged with regard to the circumstance. If there was no practical alternative other than to make the most of it, a seller could be sued for incidental damages, let alone the cost of repair, but it is no good to opine, not with only one side of the story heard. That is not going to help.

 

[privateseller]

The common sense approach

 

I think we can all agree this is going to be a 'see what happens next' jobby.

 

Any further contact from your buyer Privateseller ??

 

Lex

 

No further contact as yet. I received the letter at the beginning of last week so the deadline will be midweek this week. My father has spoken with his solicitor to sound them out, and they have advised to let her go ahead with her claim - much like most the replies on here.

 

One other thing I forgot to mention in the original post - I did email the woman while the car was in the garage and explained that I would never have sold it if I had known there was a problem. To this she replied saying "I know you would not have sold it if you had known". It was only when the bill shot up from an estimated £450 to over £500 that she started getting nasty and abusive via text.

[perplexity]

Re. "repairs were now £520", is that an estimate, or work already done, and are the said charges reasonable with regard to the sort of work?

 

One option would be to rescind, to refund the price plus the cost of repairs; get the car back and call it day, all done and settled.

 

[Mossycat]

Re. "repairs were now £520", is that an estimate, or work already done, and are the said charges reasonable with regard to the sort of work?

 

One option would be to rescind, to refund the price plus the cost of repairs; get the car back and call it day, all done and settled.

 

 

What????

 

Are you seriously suggesting that the OP refunds the selling price of the car plus the repairs ??????

 

I cannot believe you are thinking that let alone suggesting it.

 

Mossy

[buzby]

I cannot believe you are thinking that let alone suggesting it.

 

Mossy

 

The next compromise suggestion will be a free holiday in Iceland, as well as the car gratis and the repairs paid for. 8)

[perplexity]

In the position of the buyer I would ask the seller if he is willing to stand the cost of the repairs, or would he rather agree to rescind, because the question arises of the wisdom of paying more to repair a vehicle that it cost to buy it, let alone the cost of legal action.

 

If what we have here is two gluttons for punishment, conspiring to be the authors of their own misfortune, so be it.

 

If the seller is rather of the opinion that the vehicle should be written off, the shame is then that it was sold instead.

 

[privateseller]

......plus petrol used to date no doubt!

[privateseller]

In the position of the buyer I would ask the seller if he is willing to stand the cost of the repairs, or would he rather agree to rescind, because the question arises of the wisdom of paying more to repair a vehicle that it cost to buy it, let alone the cost of legal action.

 

If what we have here is two gluttons for punishment, conspiring to be the authors of their own misfortune, so be it.

 

If the seller is rather of the opinion that the vehicle should be written off, the shame is then that it was sold instead.

 

 

I am of the opinion that the vehicle was in great condition, having been reliable for 7 years. It was a P reg vehicle with nearly 180,000 miles on it. It had 4 months tax and mot still on the vehicle, 2 brand new exhaust sections, and I sold it for £400 - too cheap in my opinion.

 

The reason for sale was that my father had just 'bought' a newer smaller car for my wife and I - so it was surplus to requirements.

 

Coincidentally we found out that our 'new' car needed nearly £500 spending on it straight away - things that weren't picked up at the time my father bought it. Wouldn't dream of going back to the private seller for some recompense.

 

The buyers were fully aware of the condition of the car and were more than happy when driving it away - in fact I got the distinct impression that they thought they had 'bagged a bargain' too.

 

The woman asking for the money never actually turned up to look at the car - it was her partner and step son. So in theory it wasn't sold to her anyway!

[Mossycat]

In the position of the buyer I would ask the seller if he is willing to stand the cost of the repairs, or would he rather agree to rescind, because the question arises of the wisdom of paying more to repair a vehicle that it cost to buy it, let alone the cost of legal action.

 

 

The seller may not wish to do either, they advertised a car for sale, they described it accurately. The buyer looked at it, test drove it twice and inspected it twice and decided to buy it. The buyer knew it was an old car (P reg) and paid £400 for it. No warranty was implied or given, and no statement was made to the cars future reliability.

 

The buyer then takes ownership of the car which then develops faults, none of which are the responsibility of the seller, and indeed only developed after the sale was concluded.

 

The seller did nothing wrong, the buyer was just unlucky, but at £400 for a car of that age and that mileage they should resonably have expected that faults would occur sooner rather than later.

 

Mossy

[Mossycat]

The buyers were fully aware of the condition of the car and were more than happy when driving it away - in fact I got the distinct impression that they thought they had 'bagged a bargain' too.

 

 

Bingo!

 

If I had paid £400 for a car that had MOT and was in the condition you describe I'd be thinking I had bagged a bargain too, and at the time of purchase it was just that, a bargain.

 

However, from the minute they bought it the bargain was always subject to luck, they could have been lucky and had xx months trouble free motoring, or they could have been unlucky and had xx hours trouble free motoring, but that's the risk that they were happy to accept when they paid the money and bought the car.

 

You pays your money and you takes your chance sums it up quite nicely.

 

Stand your ground, I suspect that the woman is just pushing you to see if you will give in, I seriously doubt that she has taken any legal advice whatsoever.

 

Mossy

[Bookworm]

Actually, that may change things quite a lot. Did the relatives also give you the money themselves? In cash? If that's the case, then arguably, you sold the car to THEM, not to her, and any fight would be between them and you, and then for her to go after them, interestingly enough. Even if we argue that they were acting as her agents and the sale was between you and her, the agents having been entrusted to examine, test drive and take away the car, could then be made party to any claim, since we don't know what they did to the car whilst in possession. Incidentally, one also wonders whether they were in fact insured to drive said car, which although irrelevant to this case, can be mentioned when it comes to pointing out the gaps in her claim if one were to get her to back off, nicely but firmly. I mean, if someone is willing to drive a car uninsured, who knows what care they would have taken of a car not their own?

 

I would be tempted to argue that her having asked someone else to inspect and drive the car completely exonerates you, if anyone is responsible, it surely should be that middleman. And of course, the fact that she acknowledges that she accepts you acted without knowledge of the potential issue is a massive bonus, plus the fact she didn't give you a chance to redress. All in all, her case seems weaker by the minute the more info we gain.

 

Regardless of what follows, the lesson is there: NEVER EVER describe an opinion as a fact, it can come back and bite you in the backside, and it's especially true in the case of second hand goods. "I never had a problem with it while I had it" is a true description. "very reliable", as you can see, can turn out to be a misdscription even non intentionally. :-|

[perplexity]

Those who fancy themselves as a judge should apply for the job.

 

In the mean time I would prefer to resolve the issue rather than fail, which is what you've done if a judge is obliged to intervene. While it is not so unusal for an online commentator to have nothing better to do, the courts are not so keen to thank for the extra work, rather the opposite.

 

Seriously, your time might be better spent on discussing this with the buyer.

 

[Bookworm]

I couldn't be a judge in snall claims, I would find it too difficult to be impartial towards the big companies against the little people. But at least, I admit to my prejudice!!!

 

If a judge hs to intervene, it isn't a sign of failure at all, it means that you are prepared to stand up for what you believe in, and quite right too.

[privateseller]

Those who fancy themselves as a judge should apply for the job.

 

In the mean time I would prefer to resolve the issue rather than fail, which is what you've done if a judge is obliged to intervene. While it is not so unusal for an online commentator to have nothing better to do, the courts are not so keen to thank for the extra work, rather the opposite.

 

Seriously, your time might be better spent on discussing this with the buyer.

 

 

She doesn't want to discuss it. Strangely, in the last line of her letter, she said "Please do not attempt to contact me regarding this matter" which also begs the question of how I would pay her if I wanted to.

 

Having read all the posts here, and the advise offered by a solicitor, I think we will ride this one out and see if she proceeds with her threat of court action. I completely sympathise with her situation but still firmly believe I have done nothing wrong - and the fact she got abusive just hardened by beliefs.

 

This is the first car I have ever sold, and probably the last - I will stick to trading in next time.

 

Needless to say, should it go as far as court then I will update the forum with the outcome.

 

Thanks to everyone for the posts.

[Mossycat]

She doesn't want to discuss it. Strangely, in the last line of her letter, she said "Please do not attempt to contact me regarding this matter" which also begs the question of how I would pay her if I wanted to.

 

Having read all the posts here, and the advise offered by a solicitor, I think we will ride this one out and see if she proceeds with her threat of court action. I completely sympathise with her situation but still firmly believe I have done nothing wrong - and the fact she got abusive just hardened by beliefs.

 

This is the first car I have ever sold, and probably the last - I will stick to trading in next time.

 

Needless to say, should it go as far as court then I will update the forum with the outcome.

 

Thanks to everyone for the posts.

 

I think you have made a wise decision.

 

Good luck (to my mind you have done nothing wrong so hopefully you don't need luck)

 

Mossy

[perplexity]

Don't know for sure, but I am left with the feeling that there is more to all this than has met the eye so far.

 

When an oath is sworn in a court it's to tell the truth; the judge is not a priest, and the buyer has the head start because there's a demonstrable damage, a loss.

 

If the terms as originally advertised were "sold as seen" there would be no case to argue, so the timing of that is what worries me. A court could be quite astute over such a ploy because it has all been seen before.

 

[buzby]

'Sold As Seen' is certainly not a requirement to be disclosed as part of the purchasing process. Indeed, it may be useful to underline the obvious, but no more than that. What's next? Legitimate businesses using 'sold as seen' as a waiver from SOGA?

 

Add to the mix that the purchaser may have never actually laid eyes on the goods prior to delivery, how can they be forced to accept a condition that cannot apply to them? The purchaser of the car had the ultimate sanction, not to proceed with the bargain - and even to have a professional evaluate the purchase before formal commitment.

 

I cannot be alone in having the expectation that if I purchase from an eBay seller that I do so at my risk, especially if the seller is not a genuine 'trader'. Since purchasing 'privately' is invariably at a cost below that of a trader, the difference in cost can be attributed to the cost (or risk) of rectification of any faults thrown up after the point of sale. Even then, I'm aware of one case where a dealer got a car back 7 days after purchase with purchase claimimng it wasn;t fit for purpose as the head gasket had cracked after 400 miles.

 

The dealer downloaded the GPS data from in in-car telematics system, to discover that the car had been driven badly (very badly) at excessive speeds and high braking during a 4-day period. Rectification of the head gasket would be charged at standard rates, and the court agreed with the retailer.

[perplexity]

"sold as seen" is what happens at a public auction, for instance, whereby the broker accepts an offer made by the buyer. There was a significant legal precedent where an auctioneer was acquitted of the offence of selling a motor vehicle that was not fit to drive because, basically, "sold as seen" is supposed to warn a buyer that it's the buyer's responsibility to examine the goods, to satisfy himself before he bids or buys. This is why it is so especially ludicrous as a caveat, when the buyer had already bought.

 

On eBay, however, the buyer accepts the seller's offer; the sale is public (not private) conducted at a distance, with no opportunity to examine the goods in advance. eBay's rules thus apply to the effect that an item must be described correctly.

 

It is therefore, to say the least, unusual for a buyer to fail to notice that eBay especially pretends to protect, to reduce a buyer's risk if not to eliminate the risk, nor would it be so wise to sell a motor vehicle on eBay that is dangerous to drive, and expect to get away with it.

 

Whichever the circumstance the seller's problem is the burden of proof, because the satisfaction of the customer should rather be the proof that the goods were good.

 

Edited April 19, 2010 by perplexity

[Kraken1]

strangely, I agree that some of perpy's points are right - the SoGA applies where it says it does. Most of it applies to every sale, but some bits only apply to business sellers. The relevant sections say when they only apply to business sellers. So with ref to s13, as bookie said, it does apply. Most of the rest of Perpy's comments, the old rubbish about the enterprise act, sold as seen etc is the usual tosh though.

 

The auctioneer, for example, I'd love to see the precedent for that.

 

the arguments raised about the representation made - 'very reliable' are all valid. It was a representation. Was it a 'mere puff'? Was it a description of the goods? Was it past or future tense? These are questions for a judge...

 

As to whether she'll pursue, consumers who think they are in the right don't take legal advice and drag you to court, even if there is no merit in their case. Some, like some posters here, are certain they are right and act accordingly which can also result in some folk being dragged to court. You kinda hope that she'll take legal advice. The risk is she doesn't. rarely are some buyers rational.