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Prolix

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Everything posted by Prolix

  1. Deposits are, in the main, non-refundable. However, the deposit is to cover the sellers should the purchaser pull out. The amount is to cover any expenses outlaid or the costs involved in finding another buyer. As you pulled out the next day, it would be unlikely that the seller has incurred many expenses, if at all and the chances of finding another buyer would be high. If you paid by credit card I would complain to them as well as the seller. In each case write to the recorded delivery and say that under the provisions of the Unfair Terms in Consumer Contracts Regulations you are requesting a partial refund of your deposit because, although they are entitled to keep some of it, they cannot in all cases be entitled to all of it. This would be an unfair term. Tell them that by keeping all of it it amounts to punitive damages and that you are prepared to go to court to reclaim your portion. Tell them that they can keep £50 to cover the costs of the salesman's time, but you expect a cheque for the rest within 14 days. Otherwise you will have no choice but to raise an action in the small claims court. That should get them thinking!
  2. There is no burden of proof on the seller. If the buyer wishes to show that there is a fault with the goods he should prove that on the balance of probabilities. This argument is therefore rebuttable by the retailer and he doesn't have to "show" anything. I'n noy saying that the sofa had been abused, but the retailer can say anything they like and the consumer has to then go and prove the contrary. The new remedies inserted into SOGA did certainly strengthen consumer's rights and provide for more remedies, but they are not without their problems.
  3. I wasn't saying that there was no contract, just that until time was made of the essence there was no breach of contract.
  4. I would invoke their complaints process and then go to the Financial Ombudsman. All sounds a bit weird to me. And I'm not sure whether they can take possession of your car off your drive without a court order.
  5. Durability doesn't equate with wear and tear. What they are saying is that you have abused the sofa so they aint doing anything. Although there is a 6 month burden of proof and that you did report it within the 6 months, basically they have said "OK we accept that it is up to us to prove that the sofa conformed to the implied terms of the sale of goods act when supplied. We have looked at it and we think it did. It was you who damaged it and if you don't agree, get your own report to refute this" So you are left in the position that you have to prove that there was a breach of S14 SOGA. They haven't admitted anything by saying wear and tear. What about complaining to the insurance company?
  6. In a any consumer contract, time is has to be made a contractual term. So in order for Homebase to have been in breach of contract you would have had to have made time the essence of the contract. This would have to be in writing. If you didn't do this then you would have a hard time showing that they were in breach of contract and therefore you would have no entitlement to damages (the standard remedy for B of C). If you did this then you can claim for any mitigated losses.
  7. Section 75 does not apply in the case of HP agreements because the sipplier (land of Leather) is acting as the agent of the seller (finance co) and there fore ther isn't the required debtor/creditor/supplier relationship needed for S75 claims. Best of complaining to finance co under the Supply of Goods (Implied Terms) Act 1973 in the the goods are not of satisfactory quality.
  8. As you have made a claim of faulty goods, the retailer is entitled to inspect the goods in order to satisfy themselves that there is a fault. TIt stands to reason then that the best person to examine the goods would be the manufacturer. At the moment you should let the M come and insepct the goods, but as Bigsteve said, your contract is with the retailer, not the M, and it will be for the retailer to offer a remedy. I wouldn't bother writing just yet. Wait and see what the M says after the inspection.
  9. When I worked for PC World (as a manager) it was nigh on impossible to sack someone for poor performance because the process was so complicated that there was bound to have been a step missed and therefore a tribunal would overturn it. No, the best option was to intimidate or bully the poor unfortunate into leaving. Incidentally, I didn't last very long as a sales manager...
  10. Even if you can argue that the CCA is incorrectly signed and therefore improperly executed, it is likely that a court would enforce it anyway. The court would look at all circumstances and it was certainly your intention to be bound by the agreement so there can be no consumer detriment.
  11. First thing to do is to have the car inspected by an independent. If this report suggests that the car did not conform to contract when it was bought then you should write to the trader, including a copy of this report and tell them that you wish another of the remedies available to you under Part 5A of the Sale of Goods Act 1979. This would almost certainly be a replacement, but any use had of this current car would be taken into account. Assuming that the car has suffered from the same fault since bought and that this manifested itself very quickly, you may still have the automatic right to reject, but it would be a long shot. I am assuming that it is a used car, and the Sale of Goods Act primarily concerns itself with new goods. Lord Denning said that buyers of used cars cannot expect the same quality as new and that, in the absence of an express warranty, must accept that faults will occurr sooner or later. So if the fault occurred some time after purchase then you may not have any remedy... There was a case in Scotland (Thain v Anniesland) and the buyer couldn't reject her car after 3 weeks when it suffered a catastrophic breakdown. (there were other factors, but that was essentially the ruling) You might have a problem with the independent report as you need it to show essentially, the condition of the car a year ago when it was purchased, and I'm unsure whether any mechanic would be able to infer a car's condition so far in the past (although, if the fault is so serious that you haven't had any use of it, it may be possible) Good luck.
  12. Your card issuer is jointly liable for any breaches of contract so if you have no luck with the supplier, complain to them.
  13. Your car dealer may well argue that it has been something done by the investigating garage and that it would now be impossible to say what was the original fault with the car and therefore they could not possibly be held responsible now. If I were you I would still take it back to them for repair, but be prepared for this argument. I'm no mechanic, but it seems that the work done would be fairly routine and you may be able to argue that you have saved them a job by getting this work done, and crucially, by paying for it, saving them money. As for SOGA rights, you have certainly not forfeited them, but you almost certianly do not have a right to rejection. This is on two grounds; one in that there has been a lapse of a reasonable time (3-4) weeks; and two in that you have done an act inconsistent with the sellers ownership (had it worked on elsewhere). So in summary, If they start to say you have lost the right to a remedy because someone has worked on it, point out that this was minor routine work in order to diagnose the fault. Then demand your rights under Part 5A of SOGA ie repair, replace, partial refund, refund. It is up to them what they offer in the first instance so be prepared to accept a repair. If the car is faulty you have a right to claim damages arising from the breach of contract so float the idea past them of paying for a hire car whilst yours is being repaired otherwise they can give you a courtesy car!
  14. Rights are similar to those found in SOGA, but it is actually the Supply of Goods (Implied Terms) Act 1973 that covers product quality in HP agreements. In the first instance you should write to the HP Co and reject the car. Detail all the faults. See what response you get. Remember you can always go to the FOS and complain. I have seen a lot about how the FOS isn't worth the bother, but it is free and means that court can be avoided. Any complaint that goes to the FOS costs the trader about £400 regardless of fault!
  15. One of the aspects of a contract is consensus in idem, essentially a meeting of minds. Since your contract is with the company, and not the salesman, the company did not in fact have the car to sell you and therefore there could have been no meeting of minds. You paid a deposit that entitled you to change your mind before the actual purchase. If you had done this you may well have lost most, if not all, of it. In this instance the other party to the contract has had a change of circumstance and they then are obliged to return this deposit to you in full. As long as they do this then that would be the extent of their obligations to you. I doubt you have a legal argument to force any other remedy. However, their goodwill might mean that they offer you redress.
  16. In the absence of a manufacturers warranty then you may have no recourse as the supplier is no longer trading. If you paid by credit card you may be able to complain to the CC Co. If it is on HP you can complain to the HP Co under the Supply of Goods (Implied Terms) Act.
  17. I posted a reply in Halifax visa debit card chargeback - How long? that discussed the obligations concerning Paypal and Section 75 CCA. It may help.
  18. Point taken, but it was you who said you "doubt whether the CCA would have any relevance to a partnership". I was merely pointing out that it did:)
  19. The Act does not apply to "consumers", it applies to individuals Section 8 A consumer credit agreement is an agreement between an individual (“the debtor” ) and any other person ("the creditor") by which the creditor provides the debtor with credit of any amount and section 189 of the Act says, “individual”includes - (a) a partnership consisting of two or three persons not all of whom are bodies corporate (b) an unincorporated body of persons which does not consist entirely of bodies corporate and is not a partnership;
  20. The notion of a chargeback follows the same principles of those found in Section 75 of the Consumer Credit Act. Here the creditor (card issuer) is jointly liable for breaches of contract along with the supplier. There are therefore 3 parties to this contract Debtor/Creditor/Supplier. One view of a transaction involving Paypal is that they are the effective supplier of electronic money. So as long as Paypal does their bit and forwards the payment to another party then the contract is complete and the banks do not therefore entertain S75 compalints involving Paypal. The Financial Ombudsman Service supports this view. (The following is a wider issue discussed between the Financial Ombudsman and FSA at www) Another view is that there has to be goods involved for S75 and Paypal do not sell goods themselves so in effect they are acting more like merchant acquirers (see OFT v Lloyds). So, If a supplier accepted paypal and a debtor used a credit card then there would be pre-existing arrangements between creditor (the bank via paypal) and the supplier and therefore S75 does apply. (INTERNET PAYMENT SYSTEMS AND CON) These arguments haven't been tested in court, yet. Now we get on to chargebacks. Where chargeback rights exist ie for credit card holders under S75 (visa for example) then it is industry practice to apply chargebacks for debit card holders where there are arrangements is place. So because there is a sheme for Visa Credit Cards then it has been best practice to apply it to Visa Debit cards too. This is not a legal entitlement as S75 is. This from the FOS: chargeback Customers often misunderstand how credit cards work. If they use a credit card in a shop, they think the firm which issued the credit card (the card provider) then pays the shop. That is not how it works. Outlets where credit cards can be used are signed up by a separate firm (the merchant acquirer). This is how it works: The firm which provided the cardholder with the credit card is known as the card provider. It belongs to a credit card network such as Mastercard or Visa. The shop or the business is known as the merchant. It has signed up with a merchant acquirer which belongs to the same credit card network as the card provider. The merchant claims its money from the merchant acquirer. The merchant acquirer claims its money from the card provider. Effectively, each credit card network is an electronic form of clearing system – coupled with a delay before the cardholder has to settle up with the card provider. If the card provider (on behalf of the customer) claims the money back from the merchant acquirer (on behalf of the merchant), that is called chargeback. The rules of the credit card networks lay down when and how this can be done. There is no express contractual obligation imposed on a card issuer to exercise chargeback rights on behalf of an account-holder. However, industry acceptance of the custom of processing all disputed transactions as chargebacks, where a chargeback right exists, is so common that the ombudsman has determined that it is good practice to chargeback. Therefore, our view is that if an account-holder disputes a transaction and chargeback rights exist under the relevant card scheme operating rules, the card issuer is required to: Process all disputed transactions as chargebacks, where chargeback rights exist. Take care in exercising any chargeback right. This would include using the most appropriate reason code for the chargeback, so that the account- holder’s reasons are properly represented, and properly completing chargeback documentation under the relevant card scheme. Satisfy itself that the response to the chargeback, given by the merchant acquirer, is a proper response to the situation So, Mr Underwater, whilst your comments, like my own, tend towards prolixity they are not explaining the full legal position, but seem to be repeating internal rules and guidlines from financial institutions. And that is not the same as letting people know what the law says which is "truthful, solid advice"
  21. If you mean can the trader hold you for the balance? No. That's what a deposit is for. Can you claim the deposit back from the finance company? Possibly. Providing you were unaware that the offer expired
  22. If you paid on finance complain to the finance company. Under Section 56 of the consumer credit act they are liable for any representations made by their agent, in this case the salesman. Get your statements as advised and then invoke the complaints procedure of the finance co. If that doesn't work complain to the financial ombudsman.
  23. Section 94 of the consumer credit act deals with early settlement and gives debtors the right to discharge their indebtedness at any time. The amount that the debtor must pay is is the amount payable under the agreement minus any rebate allowable under Section 95. This rebate is based on an acturial formula and is highly complex. In HP agreements one can return the goods after 50% of the total amount payable under the contract has been paid, but watch out for any default charges and as said above, any PPI etc that is actually paid up front to the insurer by the finance company.
  24. Until you start paying again then your position is considerably weaker. I suggest you clear any backlog and then complain. They won't be interested whilst you are in arrears, and neither would a court be, I'm afraid.
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