Question on SOGA applied to private sale **WON*

[ajlennon]

Hi,

 

I recently bought a caravan from an individual in a private sale.

The caravan turned out to be stolen and has been taken from

me and returned to its legal owner. The person I bought the

caravan from denies any knowledge that was stolen and refuses

to return my money.

 

My reading of section 12 of the Sale of Goods Act 1979 is that

an implied condition of the contract is that the seller must have

title to the item being sold. This applies to private sales as well

as business to consumer sales as far as I can see.

 

Given this I should be able to terminate the contract and recoup

the money owed to me, including damages, from the seller.

 

However I am being given mixed advice on this from the CAB and

Consumer Advice line (all attempts to speak with Trading Standards

have failed miserably).

 

There seems to be a possibility that in a private sale the seller

can exclude conditions of the contract (i.e. "I didn't know it

was stolen") but I cannot find anything in the SOGA 1979 which

seems to support this.

 

Can anybody help me with this?

 

Thanks!

 

Alex

[Bookworm]

No, he can't impose conditions that would give him the right to sell stolen goods just because he (supposedly) didn't know! That itself would be an unfair term and non-enforceable.

 

Trading Standards Central - Trading Standards and Consumer Protection information for the UK

 

You are also entitled to expect the seller to have ‘good title’ to the car. In other words, to be the owner or authorised by the owner to sell it. If you buy a car later found to be stolen, you have no legal right to keep it. You will have to try and get your money back from the seller.

If it works for the car, I would expect same would apply to a caravan.

 

Demand your money back immediately, give him 14 days, then 2nd letter - 14 days, then sue him.

[ajlennon]

Hi Bookworm,

 

Thanks for the quick response. I'm needing to

be sure of my ground here as I'm concerned

neither the Police nor the Government Consumer

Advice line seemed to think I had much chance.

 

The quote you provide "you have no legal right to

keep it. You will have to try and get your money back"

certainly would indicate as I have found that I have no right

to the car/caravan but it doesn't necessarily follow

legally I can require the seller to return my money

does it?

 

Rgds,

 

Alex

[Bookworm]

Well, yes. :-? What reason would he have to keep it? The caravan wasn't his to sell in the first place, so he has no right to the money.

[zootscoot]

Did the seller actually exclude liability for sale if it was stolen?

 

Did you sign a written contract?

 

UCTA 1977 provides that implied terms as to title can never be excluded however, UCTA only applies to businesses.

[ajlennon]

Hi ZootScoot,

 

In answer to your question,

 

- No we did not sign a written contract (I have the receipt for the money I paid for the caravan but that is all).

 

- I did buy the caravan through eBay but I'm not sure whether that is relevant to the contract I have with the seller?

 

- The seller did not explicitly exclude anything. It was more or less a standard sale where we looked at the caravan, decided to bid on it on eBay and then went to pay and collect.

 

The seller is very bullish about this 'not being [his] problem' and I've had some feedback from Consumer Direct that there might be some kind of get-out for him. They've suggested that because he can make a case that he didn't know the caravan was stolen he is not liable to return my money. I have to say if that is true I am astonished as the extrapolation is that anybody could sell anything and as long as they can say "didn't believe it was stolen" the buyer has no come-back! (I'm waiting for trading standards to contact me to clarify this - within 3 days apparently).

 

Although IANAL, from my Googling, SOGA does seem to apply when the seller doesn't have title to the item they are attempting to sell, even though this is a private sale.

 

The major difference between trader-consumer sale and private sale seems to be that buyer rights as per the description of the goods are much reduced. I'm not arguing that of course, simply that the seller had no legal right to sell goods he didn't own.

 

Rgds,

 

Alex/

[zootscoot]

If they have not specifically excluded liability then there is nothing they can do now to escape liability. They will also be able to claim back from the person they bought it from if they can locate them.

 

I'm not familiar with the terms and conditions of ebay but it might be worth checking with those. I would be most surprised if they allowed people to exclude liability for stolen goods. They may also have a facility for reporting users selling stolen goods and I believe they have some facility for resolving disputes.

 

Also if you paid by credit card you may be able to get some redress through them. This may be a safer option than going after the seller as at least you know they have the money to pay whereas you could end up spending money on a court action and still have no money in your hands if they have no money.

 

All the best

 

Zoot

[zootscoot]

Sorry I've just checked and liability of the credit card applies only to commercial transactions.

[ajlennon]

Hi Zoot,

 

Thanks for the feedback. They required us to pay cash on collection so credit card wasn't an option unfortunately :-s

 

I will check again on eBay to see if there are any specifics relating to exclusion of liability but I too would be surprised if that's the case.

 

As soon as the caravan went to the dealer to be serviced it became apparent it was stolen, but assuming that they didn't know of the situation then they are as much victims of the original thief as we are.

 

However as you say I would think that they should seek redress in exactly the way we are, by contacting their seller. From the conversations I have had with them they bought from a local business and so should have a stronger case than me against them!

 

It is a shame that the actions of a few can have such a knock-on effect on others right down the chain, but if I cannot seek redress against my seller and he against his up the chain then I do not understand how this situation could be remedied in a just way.

 

You also mention the issue of enforcing the Small Claims Court judgement, should we have to go that far. I was concerned about this but having spoken to the CAB there seem to be a range of fairly strong options from garnishing wages to sending in Bailiffs to charges against the home. I'm not sure if the CAB were being over-optimistic? (And again, lets hope it doesn't go that far...)

 

Rgds,

 

Alex/

[gyzmo]

Your friend here is s. 12(1) of the Sale of Goods Act 1979. It provides an implied term in any contract of sale that the goods are the sellers to sell (i., not stolen / borrowed etc). There is no defence for breaching it - if it wasn't their to sell then you are entitled to your money back from the person who "sold" it to you. The original owner has a right against you if they discove that you have it, so would report this to the police pronto.

[Bookworm]

Owners already have it back, Gyzmo. This is about OP getting his money back. ;-)

[ajlennon]

Hi Gyzmo,

 

Thanks for your comment too. As Bookworm says I informed the police when it became apparent there might be a problem with the caravan. I didn't want any part of the problems that could arise from ownership and ongoing use of a stolen caravan.

 

...

 

I also heard from trading standards today. They were very helpful but told me that the SOGA doesn't apply as it was a private sale. They said they did believe I have a very strong case as the seller can't sell what isn't his to sell in the first place.

 

I responded that I disagree on that point (after my week of legal training on the SOGA) but I believe SOGA s.12 applies as a condition of the contract. At least I can't find anything that would negate this and all the comments so far seem to be supporting this.

 

Anyway, first round of letters have gone today. We'll see what happens.

 

Cheers,

 

Alex/

[zootscoot]

S.12 definately applies to private sales. It is only s.14 which applies to goods sold in the course of a business. Also s.12 is a condition as opposed to a warranty in all sales of goods not just consumer sales.

 

Best of luck and keep us updated

[gyzmo]

A. sorry for the blatantly obvious disregard I have shown in paying attention to your posts (thanks for pointing that out Bookie!)

 

B. as said, s.12 does apply to all sales for a very good reason: If it didn't, it would legitimise the sale of stolen goods! Are ou sure it was Trading Standards that phoned you and not someone from Consumer Direct? I find a comment like that from a professional to be rather disturbing - it is a basic tenet of consumer sales law and one that ought to be known off by heart by anyone involved in advice provision or enforcement.

[BADGER 69]

Do you know if the person selling to you had any proof of where and when he is supposed to have purchased the caravan? If he hasn't how does he proove that he did not steal it? He had posession of it.

[ajlennon]

Hi,

 

After a couple of unanswered letters during the past couple of months I initiated a claim through the small claims court.

 

The seller has filed a defence which I need to research before we go to court. Is there anybody who could help with some thoughts on this ?

 

My claim:

 

1. The claimant purchased a second hand ... caravan from the defendant for ... on ...

2. This caravan was subsequently discovered to have been stolen in ... and was seized by the police.

3. The claimant's claim is for ..., being the purchase price which was paid to the defendant for the caravan.

4. The claimant's claim is made under section 12 of the Sale of Goods Act 1979, and any other relevant legislation, as the defendant did not have the right to sell the caravan.

5. The claimant has written to the defendant by registered post on ... and

... but the defendant has not responded.

6. The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% a year from ... to ... of ... GBP and also interest

at the same rate up to the date of judgment or earlier payment at a daily rate of ...

 

The seller's defence:

 

1. I deny that I did not have title to the caravan. I put the claimant to strict proof in relation to his allegation that I am in breach of contract.

2. I bought the caravan in good faith, at arms length and for full value and contend that I was the owner when the caravan was sold my me to the claimant.

3. If the claimant proves that I did not have good title I claim an indemnity from the part 20 defendant who sold the caravan to me.

 

All comments / help much appreciated. My immediate thoughts are what I need to do to provide 'strict proof' and on what basis he's claiming an indemnity ???

 

Cheers,

 

Alex/

[Bookworm]

Sounds to me the defendant hasn't got a clue what he is on about.

 

1 - The police taking away the caravan as stolen is proof in itself. Why does he mention breach of contract in his defence? I don't see mention of it in your claim.

2 - Er, no. He might have bought it good faith, makes no difference. Ignorance is no defence, as we all know.

3 - Que? :-? If he wants to go and sue the guy who sold him the caravan in the first place, that's his choice, but that's got nothing to do with you.

 

Very odd. I'm sure the legal brains will be be along at some point to correct me if I'm wrong, but if this is the best he can come up with, he's in trouble.

[ajlennon]

Hi again Bookworm,

 

Thanks for taking the time to reply. (I just pressed the wrong button and my first response to you seems to have been lost in the ether!).

 

I'm fairly sure the vendor isn't a lawyer. However when we spoke on the phone at the start of all of this he told me that he 'had a couple of friends who were solicitors' and they had told him I 'didn't have a leg to stand on'.

 

I assume he's enlisted these guys to assist with his defence. The style and content does seem to support this. So I don't want to be too dismissive...

 

On point 1. I believe that he and I have an implicit contract due to his sale of the caravan to me. My understanding is that that a claim under SOGA would be to repudiate that contract due to a breach of contract as the seller did not have title to the goods at the time he sold them to me.

 

This point seems to be a tactic to ask for 'strict proof' i.e. the documentary evidence that he has breached the contract. I would think this would mean some form of statement from the police that it was stolen before he sold it to me. Perhaps I also need to provide proof that he sold it, but he doesn't seem to dispute that in his defence (in fact he admits it).

 

On 2, "at arms length" and so forth seems legalese to me. Perhaps there's some act or statute of which I am unaware which allows him to side-step SOGA Section 12. He was saying on the 'phone to me that because he 'didn't know it was stolen' there was no case to answer. Seems odd though.

 

On 3, he's then saying that even if I can prove his breach of contract then he should be indemnified because of an additional claim against a 3rd party (his seller). This would have to be his claim as I haven't made another claim (and don't think I have ground to against his seller?).

 

If he is making an additional claim then surely this should have been entered in his defence (but then wouldn't he be admitting liability?). If he doesn't enter his additional claim with his defence then my reading of CPR part 20 seems to indicate he must have the court's permission to do this during the case.

 

I'm left asking myself if the court would allow this and what the precedents are for adding parties to the claim, and for joining my claim to another claim he may or may not have against his seller...

 

Regards,

 

Alex/

[barracad]

The court must give permission for the defendant to add another party to the proceedings (rule 20.5(1)). To do this, he would have to make an application.

 

As there is no Part 20 defendant at present as the court has not given permission for this, then I don't see how he can use this as part of his defence.

[ajlennon]

Just to add to the above...

 

I'm amazed there isn't more on the Internet about this type of thing i.e. buyer buys goods which are then found to have been stolen prior to the purchase and then attempts to recover purchase price.

 

I'd have thought this happens a fair bit around the country and that there'd be some very clear legal answer to the view of the courts.

[Conniff]

Is there no police action or enquiry on this ie 'handling stolen goods'?

[ajlennon]

Hi Conniff,

 

The police have investigated and are satisfied that there's no criminal case to answer (or at least no likelihood of them winning a criminal case) as it appears to them that my seller did not know he was purchasing stolen goods.

[buzby]

I'm assuming you don;t live in Scotland? As the defence being used by the seller (bought in good faith) would apply to you and it could not be taken from you under those circumstances. A further avenue it to check with the central register of Caravans (a bit like the DVLA) which records chassis numbers. If yours was NOT shown at any time to have been reported stolen, then you have a full defence that you took all reasonable precautions. I realise you may not have done this at the time but it could assist you now. Do a Google search for the database....

[Bookworm]

I don't understand, I really don't. Good faith, arms' length, didn't know, it's frankly totally irrelevant: It wasn't his to sell, and whether he knew it was stolen or not is also irrelevant.

 

Take the example of HP cars: They belong to the finance company. If the guy who has the car on HP then sells it, the finance company can -and will- recover it from the new "owner", because the HP guy had no right to sell what wasn't his. In this case too, the new owner would have to go and get his money back from the HP guy.

 

As for the part 20, you are quite right, and Barra's comment is spot on. It seems to me he is trying to use pseudo-legalese to try and scare you off, tbh. As for his "solicitors friends", that is pure bluster, as a solicitor would have written a much lengthier and clearer defence (and one that held together better).

 

It's one of those where I am looking at it and wondering what I must be missing because it so obviously doesn't make any sense. :-?

[buzby]

I don't understand, I really don't. Good faith, arms' length, didn't know, it's frankly totally irrelevant: It wasn't his to sell, and whether he knew it was stolen or not is also irrelevant.

 

I can see you don't. As pointed out before - if a buyer makes a purchase in good faith, this takes precedence over any claims from the HP companies you mention. If this is a difference in Scottish and English law, then it is by far the sensible option as the underdog doesn't get screwed.

 

That said - if I was buying a caravan, I'd still want to see the original bill of sale or subsequent documentation to prove the likleyhood of this situation is diminished.