08 plate car - major fault - rejection

[dhb128]

Hi All,I'm looking for a little help and advice.I bought a 2008 car from a dealer on 12th October 2011, after viewing over the internet (dealer is 176miles away). I travelled to the dealership to buy the car after I gave it a test drive.

 

I drove the car home and it seemed fine. The following morning I drove the car down to town and the ESP warning light came on on the dash. I got the car in to the local dealership at my earliest convenience which was the 21st October only to be told by the dealership that the pump had failed, as a result the esp system and the traction control system no longer worked as intended and there was the potential for the abs to fail to function properly as well.

 

I got a report stating all of this from the dealership and immediately contacted the dealer that sold me the car. They offered to fix the car under their 3 month in-house warranty, however I refused to drive the car 176 miles to have it repaired after finding out that some of the safety systems weren't functioning properly, if at all. As such I asked them if they were willing to pay the local dealership to repair the car (I could get it recovered there at no cost to myself and minimal inconvenience). They refused so I informed them that as a result of the car being faulty I was well within my rights to reject the car as I had only owned it for 9 days. They told me to go ahead. I contacted Which? legal and they advised me of my rights and what to do.I sent them a letter stating my official rejection of the car and requested a full refund within 14 days.

 

I received a reply letter from them stating that I had to give them the opportunity to repair the car and that I refused to take the extended warranty which would have meant they would have paid the local dealership to repair the car, and that they were still happy to repair the car.I am curently at the point of writing my reply which will inform them that I am not obligated to afford them the opportunity to repair the car and that I they have 7 days to collect the car and provide me with a full refund. I will be including extracts from the SOGA to back up my points. The sections I will be refering them to will be:- Section 14, Subsection 2- Section 36- Part 5A; Section 48I have spent considerable time trying to research my rights in this matter and believe I am well within them, however I have that horrible niggling feeling that I might be wrong. This I feel is borne from my lack of experience in situations such as this.

 

Please could some knowledgable members affirm my beliefs or show me the error of my ways, I'd really appreciate it.Kind regardsDan

Edited November 9, 2011 by Sidewinder
Edited into paragraphs....

[dhb128]

Apologies for it being in one long paragraph, it was broken down in to smaller bite size paragraphs

[Sidewinder]

Broken into paragraphs for ease of reading

[heliosuk]

Have they refused to repair at their garage/dealer/workshop?

 

You need to be a bit careful with your proposed claim as the systems affected are ancillary safety systems to the main braking system which is not, and will not be affected. You will still have a good braking system so the car will be deemed safe to drive.

 

If they offer to repair at their premesis there is not a lot you can do as it was your choice to buy from them even though 176 miles away. It could be deemed as unreasonable though.

 

Others might have a different take on this so see what they say.

[dhb128]

I have been led to believe by 5 separate lawyers/solicitors (4 from Which? Legal service and 1 independent) that the exact nature of the fault is irrelevant to a certain extent (its a significant enough fault that it will cost £1600 to repair) and so is their offer to repair it. We've had the car 9 days and as such have the right to reject it as unfit for purpose/ of unsatisfactory quality. I've been informed that had we had the car longer we would then have to allow them the option to fix it. Thats how I understand my position from the advice I've been given anyway.

[dhb128]

Thanks Sidewinder

[BrazilianCCK]

Yes, you are still within the window to reject the car, though you must ensure that it is kept securely and not used any further - as you have been advised, the offer to repair is irrelevant as you have not been deemed to have "accepted" the car which is the point where the issue about repairs comes in

[sailor sam]

I get fed up of hearing traders saying 'claim off the warranty' or 'you should of taken the warranty out so tough!' when a fault occurs within a couple of weeks of ownership. The contract of sale is between the seller and the buyer in all cases, not the warranty co. If the trader wants to use the warranty to pay for any repairs in such circumstances, then it should be he who arranges it, not the buyer. It can be against the SOGA for traders to attempt to reduce their responsibilities in this way. A warranty does not reduce or replace a consumer's statatory rights! Some traders seem to have forgotten that!

[heliosuk]

Have you suggested they come and collect it fix it and return? If it went to court under a rejection and they defended

1. You will probably have a useable car sat on your drive for potentially over a year

2. The garage/dealer is bound to argue, as they point out, that they made the offer to repair and if they have any sense will keep doing so

3. The judge will take a pretty dim view if it appeared you made no attempt to mitigate

 

The next thing is the diagnosis you have been given which from your description is questionable. If your pump had failed then ABS light would be on as well as this is the primary slip control system from which ESP and TCS usually feed.

 

What car is it?

 

I would expect the dealer suggesting that had a warranty been purchased was more of a way of trying helping you in the current circumstances rather than trying to renage on their obligations which they clearly show they are aware of.

[dhb128]

Thanks for the replies.

 

I have tried pretty much everything to mitigate the situation even to the point of suggesting they cover the costs of fuel to get it to them, all they kept saying was "we're not willing to do that".

 

I can't see anywhere in the SOGA where it states I have to give them the opportunity to repair it, and as has been mentioned above, legally am I deemed to have 'accepted' the car when I only had it 9 days before rejecting it, and the fault developed the very next morning after purchase, which I'm led to believe by SOGA that as such it is deemed to have been present at the time of purchase.

 

Yes it was my decision to purchase the car even though it was so far away but this shouldn't affect my legal rights.

 

The car is a Suzuki Swift Sport and the diagnosis came from a reputable Suzuki dealership, who even tried to get Suzuki to pay towards the repair as the car was just (1month) out of the manufacturers warranty.

 

As for your final comment about the extended warranty, you should have read the letter they sent, definitely not intended the way you've suggested it might have been.

[heliosuk]

Obviously none of us have seen the correspondance and I really do sympathise with you. On the one hand you are within your rights on the other if you go for rejection you have a dead car sat around for what I reckon could be a considerable amount of time which is not good for you.

 

As Sailor has mentioned the contract is between you and the seller and any action taken, if defended will be directed to be heard in the defendants locality, in your case 176 miles away. Someone might be able to advise on this as I try not to get involved in the legal stuff as it's too wishy washy with SOGA.

 

Perhaps then you should look at a couple of alternative routes i.e. fixing the car and pursuing the costs from the dealer which is easier and you have the use of the car and also pursuing Suzuki with the costs of the repair i.e. if the car had been bought from new would they pay. This would be a mitigation and add to your case.

 

In a nutshell, it's easier to suit for the costs of repair than it is to reject the car. And you still have the use of the car.

 

I'm still miffed with the diagnosis though. Can you ask the question of the diagnosing dealer and also let us know the make of the ABS system which is on the pump assy. This is a large aluminium block with a big black cylinder on top with brake pipes coming out of it if you don't know it already.

[sailor sam]

Couple of things I've picked up on here, firstly I suggest that the OP checks to see his position under the 'Distance Selling regs' which have been bought in to cover issues when buying through the internet. They specifically are designed to deal with issues arrising when the buyer has had no face to face dealings with a trader or viewd the product prior to purchase. I suggest the OP consults Consumer Direct/Trading Standards to see whether there is an avenue to persue there. Also, SOGA may not state that a trader MUST have an opportunity to inspect/rectify, BUT it would certianly provide him with a good argument in court about mitigating his costs by not having that opportunity.

[kurvaface]

Your rights: buying second hand cars Second hand cars: your rights

 

Whether you’re buying an old banger from a friend of a friend or a year-old luxury motor from a car dealer, there are lots of pitfalls to look out for when buying second hand cars. So it’s important to be aware of your rights and to think carefully before buying.

See our video guide to buying second hand cars for tips on what to look out for.

Your rights if you buy second hand cars from a dealer

 

When you buy a second hand car from a dealer, you have a right, under the Sale of Goods Act 1979, to expect the car to:

• be of satisfactory quality (taking into account its age and mileage)
  
• meet any description given to you when you were buying it, and
  
• be fit for the purpose (for example, to get you from A to B safely)
  

If the second hand car does not meet these requirements you have a right to claim against the dealer for breach of contract.

Your right to reject a second hand car

 

If there's a problem with a second hand car soon after you’ve bought it, for example, the car develops a problem you wouldn’t expect for the car’s age and mileage, or it turns out to be not what you’d been lead to expect, you may have the right to ‘reject’ the car and get your money back.

However, you have only a ‘reasonable’ time to reject a second hand car. There’s no clear definition of what a reasonable time is – you probably need to do it within three or four weeks of buying it. And if the fault is very obvious you may have less time.

If you reject a second hand car you must stop using it.

Your right to claim for the cost of repairs

 

If it’s too late to reject the second hand car (or you don’t want to) you can ask the dealer for a repair or replacement. If the dealer refuses, you could:

• claim from it the cost of getting the second hand car repaired elsewhere
  
• claim for a reduction in the purchase price, or
  
• return the car and get the money you paid back, less a deduction for the use you’ve had (called ‘recision’)
  

However, if your claim is worth more than the small claims limit where you live (£5,000 in England and Wales, £3,000 in Scotland or Northern Ireland) you may need to take advice before you act, because you may risk facing time-consuming and expensive court action.

If you get a warranty or guarantee with a second hand car, you may be able to claim on that to get any problems fixed. However, this doesn’t affect your legal rights, and you could still either reject the car, or claim against the dealer.

How a trade association can help with second hand car problems

 

Some motoring trade associations have complaints schemes that can sort out problems between car dealers and customers. Check whether the dealer you bought from is a member of a trade association and whether it has a complaints scheme.

One of the main trade associations, the Retail Motor Industry Federation (RMIF), has a conciliation and arbitration service to deal with disputes about second hand cars.

If you bought your second hand car on credit

 

If you bought your second hand car with a credit card or with credit provided by the dealer, the card company or credit provider is jointly liable with the dealer for any breach of contract, so you can also claim from them.

If the credit company refuses your claim, you could then take the matter to the Financial Ombudsman Service.

If you bought your second hand car on hire-purchase (HP)

 

If you bought your second hand car on HP, your rights are against the HP company, not the dealer, so you must take up any problems with it, not the dealer. However, you rights are different and if you have a serious problem, and the HP company won’t help, you will need to seek legal advice.

If you buy a second hand car privately

 

If you buy a second hand car from a private seller you have fewer rights than if you buy from a dealer. Key parts of the Sale of Goods Act don’t apply – there is no legal requirement that a car is of satisfactory quality or fit for its purpose.

However, legally, the seller must:

• accurately describe the second hand car (for example, an advert must not say ‘one owner’, when the car has had several)
  
• not misrepresent the second hand car (tell you something about the car which isn’t true – so, for example, if you ask whether the car has ever been in an accident, the owner must answer truthfully)
  

If the second hand car you buy was stolen

 

Anyone selling goods (including second hand cars) must be the legal owner or the sale doesn’t count. If a second hand car is stolen, the legal ownership of the car usually remains with the original owner. So, even if you buy it, in most cases it won’t legally belong to you.

If you discover the second hand car you’ve bought is stolen you should contact the police. It’s most likely that you will have to return the car to its rightful owner.

There are some exceptions to this and the situation is complex so you should seek legal advice. The only way to get your money back is to try and reclaim the cost of the car from the person that sold it to you.

If the seller has mislead you about the second hand car

 

If something you buy is not ‘as described’, or if the seller is guilty of misrepresentation, you are entitled to:

• give the second hand car back and get your money back, or
  
• if you want to keep the car, ask for compensation (usually the cost of any repairs it needs)
  

However, if you buy a second hand car that was not described as being in excellent condition or good working order, and it breaks soon after you buy it, you do not have any right to reject it, or to claim compensation.

Some unscrupulous second hand car dealers might pretend to be private sellers to get out of their legal obligations. If you think a dealer is trying to pretend they're a private seller, do not buy from them and report them to the local trading standards department.

Buying second hand cars at auction

 

When you buy a used car at auction you have very limited legal rights. Though the Sale of Goods Act generally applies to cars sold at auction, auction houses are allowed to exclude its main conditions (such as being of satisfactory quality, as described and fit for the purpose) if they put a notice on display in the catalogue.

So make sure you check the auction house conditions before you bid. When you buy at auction, your rights are against the seller, not the auction house.

 

 

Read more: http://www.which.co.uk/consumer-rights/sale-of-goods/your-rights-buying-second-hand-cars/second-hand-cars-your-rights/#ixzz1dOQgvVtT

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