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A vehicle described as being 130 bhp & NOT being 130 bhp would constitute not as described

 

In Border Harvestors Ltd V Edwards Engineering (Perth) Ltd a Kamas drying machine was bought from Edwards. It was advertised as having a specific rate of drying. When supplied the machine would only dry at a lower rate (because of a fault) and Border Harvestors calimed that the machine wasn't as described in that it dried at a lower rate. Although they should have claimed under Section 14 of SOGA, satisfactory quality, it was held in this case that only the words Kamas Drying Machine formed the description and it's drying rate was what it was capable of. A description is that which is capable of identifying the goods.

 

OK, I accept that in practice any words describing the goods could constitute a sale by description, I just wanted to point out that things are not so clear cut and that a strict interpretation has been taken in the past.

 

This case is a Scottish case and there may not be anything similar in Engish law.

 

Any consumer looking to reject on the strength of Section 13 of SOGA should be aware that this might become a factor, however unlikely, and that there has been a precedent set.

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But in this case it is not what it is capable of.

 

A 115bhp car will never have the capability of a 130bhp especially pulling a caravan up some of the hills of Devon.

 

The description of 130bhp is what made the customer go and look at the car and the seller knew that 130 was a bigger selling point than 115.

 

What you are saying is if there are two identical cars, one red the other blue and the customer bought the blue one but was given the red one, then that is ok as it is still a Mondeo, or an 'L' model as opposed to a 'GLX', having bought the GLX he was given the L, but that is ok as they are both a Mondeo.

 

The seller was aware of the significance of 130 over 115 and chose to advertise it as 130 knowing it would attract more interest.

 

The car was bought on the description of 130bhp in the advertisement (not a typo or it would have been corrected verbally at the point of sale), so is was misdescribed and not fit for purpose.

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But in this case it is not what it is capable of.

 

A 115bhp car will never have the capability of a 130bhp especially pulling a caravan up some of the hills of Devon.

 

The description of 130bhp is what made the customer go and look at the car and the seller knew that 130 was a bigger selling point than 115.

 

What you are saying is if there are two identical cars, one red the other blue and the customer bought the blue one but was given the red one, then that is ok as it is still a Mondeo, or an 'L' model as opposed to a 'GLX', having bought the GLX he was given the L, but that is ok as they are both a Mondeo.

 

The seller was aware of the significance of 130 over 115 and chose to advertise it as 130 knowing it would attract more interest.

 

The car was bought on the description of 130bhp in the advertisement (not a typo or it would have been corrected verbally at the point of sale), so is was misdescribed and not fit for purpose.

 

I said earlier that descriptions are those necessary to identify the goods so in the examples you give of colour and "L" or "GLX", these could be descriptions necessary to identify the goods. So I was not saying that it would be OK to supply either as long as it was a mondeo supplied.

 

If a consumer wanted a 130 bhp car and didn't care about make or model etc, then the bhp may constitute a description.

 

As it was made clear that the bhp was a factor then it became a contractual term and a consumer would be able to claim damages if this term were breached i.e. the car was, in fact, a 115bhp car.

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I did ask if it was 130 bhp too as needed to tow a caravan and was assured it was correct ! Even joked 'it better be orelse i'll be suing your ass ' which now does not seem funny :(

Reeet..

Mr used car salesman has insisted he can ony pay with company cheque and that we can keep all the car documents (fsh and log book ect ) until it clears ?!?

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I understand what your saying now Prolix. :)

 

Skatts you can ask for express clearance of the cheque when you present it, it will probably cost a tenner, but may be worth loosing that and getting piece of mind.

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oh dear !!

Gets a bit murkier !!

We do not actually have the amended log book as yet!!

Have just rang DVLA and they say it can take 6-8 weeks but there is no way of prooving he has sent his bit in is there ?

So ..in theory ,if he is reaaallly dodgy ,He might not have sent the log book off ,he could bounce the cheque ,only lose the FSH and sell the car on ?!?

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Have just drafted a letter along the lines of -

I have agreed a refund for vehicle ******

I have recieved deivery of the vehicle in return for a cheque for the full amount

Signed -

 

Do you reckon that would be any good if I get him to sign it ?

Mind you tho if the company is in recievership then he wont give a stuff will he ?

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I understand what your saying now Prolix. :)

 

Skatts you can ask for express clearance of the cheque when you present it, it will probably cost a tenner, but may be worth loosing that and getting piece of mind.

 

Be careful - IIRC 'express clearance' isn't exactly what you might think.

 

As I remember, basically the bank checks if the account that the cheque is drawn on has sufficient funds in it to allow the cheque to clear but doesn't actually clear the cheque until the usual five working days. The bank then effectively lends you the money on the basis that the money was available. If during the period between the check and the end of the fifth day the funds are withdrawn, then the cheque is bounced and you are liable to repay the money if you've drawn any of it out.

Edited by daKlone
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Oh dear .....its not looking good is it :(

After speaking with TS ,they told me that altho illegal to knowingly boune a cheque ,if the company was 'in trouble' then that wouldnt be of concern to him anyway

Do you think that was general advice or was she hinting at something :/

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Not necessarily, but you need to confirm with your bank exactly what security you actually get from such a process. You may need to speak to someone who actually knows in detail how it works, rather than a counter clerk and find out what the implications are.

Perhaps you could put the scenario I gave in my post to them and see what they say?

I could be wrong, things may have changed, but I would hate to think of you happily assuming that everything was alright only to find it wasn't and be seriously out of pocket.

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Ha !

It gets better !!

He has rang as something has 'cropped up ' and he cant be there this afternoon!!!

will have to be friday instead

Anyone else starting to hear lil alarm bells ??

He might be telling the truth but if it happens again on friday I think I will have to consider a different route!

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Right!! Knowing that he now has till friday I rang him to arrange a more 'acceptable ' form of refund

After a lengthy phone call his excuses are as follows -

He cannot withdraw such a large amount of money from a business account as it will cost him ?!?

 

A bankers cheque will cost him £60 so he wont do it ???

 

He cannot do a refund onto the card as he has never done one and isnt sure how it works!!

 

He wil not send the cheque throught the post until he has seen the conditon of the car ( we only used it a freeking week !! )

 

Said its a cheque or nothing ....back on the phone to Trading standards!!

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Be careful - IIRC 'express clearance' isn't exactly what you might think.

 

As I remember, basically the bank checks if the account that the cheque is drawn on has sufficient funds in it to allow the cheque to clear but doesn't actually clear the cheque until the usual five working days. The bank then effectively lends you the money on the basis that the money was available. If during the period between the check and the end of the fifth day the funds are withdrawn, then the cheque is bounced and you are liable to repay the money if you've drawn any of it out.

 

 

Correct klone it can still be dishonoured or even stopped.

 

Suggest taking the cheque direct to the payers bank & paying it into yours after asking if it will be honoured.

 

They won't like it but don't let that put you off. Also make sure you take some photo ID or they might try & use lack of ID as an excuse to prevent you depositing the cheque

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You 'do' a refund in the same way you do a payment. You swipe the card or feed in it's number to the terminal & press a different button which I think says either repayment or refund

 

It will cost him to withdraw a large amount why it's his money??

 

£60 for a bank draft?? I should check that

 

Not going to refund until he seen the car!

Get ready for an argument when he tries to reduce your compo. Also tell him if he mucks around you'll take the TS's advice & ask for compensation for all the trouble & expense his prevaricating has caused you

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If he doesn't pay come Friday & it's over £750 issue a Statutory Demand, which costs nothing, then he will have 18 days to pay up otherwise you can petition the court, which does cost but are recoverable, for his bankruptcy

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Thanks ,I rang TS back and the have said they need to run some checks on him and get back to me

The car £3279

The TS seems keen to go down the 'criminal ' route rather than civil ,will this cause probs with getting our cash back ?:(

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It could if his bank become aware they could freeze his OD or even call in their loans

 

Strongly advise you take the Statutory Demand route at this stage it costs nothing & he's only got 18 days in which to pay you otherwise you can petition for his bankruptcy & for him that would be catastrophic as all his other creditors would join you

 

Prepare a letter to be hand delivered, in front of witnesses, on the day he mucks about over payment demanding immediate payment from him

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Thanks ,so if we go on friday as planned and he starts trying to get out of it I can just hand him this letter and leave ?

Do I leave with the car or leave him the car ?

And

Is there a template for this letter anywhere please ?

Sorry for al the questions ,Thanks :)

Maybe this is what TS are on about doing as they daid they will be on his doorstep in a shot if anything goes pearshape ?

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He 'doesn't know how to do a refund' - cripes, even the 16-yr old girl in my local Halfords can do that, so surely he can figure it out?!

 

How about calling his bluff? Offer to pay the £60 for a banker's draft yourself? Say 'give me a banker's draft for £3219 and we'll call it quits'. He's got no excuse not to then, has he?

 

I've got to be honest though, all this if-ing and but-ing seems to me to point to the fact that either he doesn't have the money, or has no intention of giving it to you.

 

These people make me laugh - ask him if someone offered to buy a car from him if he would accept them taking the car away before the cheque was cleared? No, thought not - so why should you give up your asset before having cleared payment?

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hi all

Just got back from taking the car back

All seemed to go well and he agreed to refund onto our card and the bank have been informed and will let us know when it 'arrives '

He came out to us and said 'whats meant to be wrong with it them ' He turned the key and ..........it wouldnt start !!

Yes!

Not alot he could say after that tbh ,especialy as he watched us drive up and was at the car as hubby turned the engine off

Sooo fingers crossed all goes ok ,will find out by tuesday at the latest ( according to the bank )

Now everyone cross your fingies:D

Edited by Skatts
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Yep he signed the back of our original reciept to say he had refunded into card and taken the vehicle back and we have 2 refund reciepts from the chip and pin machine ( one for our deposit ,one for the rest )

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