Sale of Goods Act 1979 & The “reasonableness" test - Unfair Contract Terms Act 1977

[rps1969]

Hi everyone

 

Need a little advice on this one regarding Sale of Goods Act 1979.

 

To cut the long story short I purchased a new Number Plate through Premier Motor Auctions Premier Motorauctions :: DVLA Personalised Registrations who are the contracted auctioneers for DVLA's Personalised Registrations. I bid online as travelling to the venue was too far away. Bidding got underway on the particular lot I was interested in.

 

Anyone who has used the site will tell you that when you are the current highest bidder a big green box advises you of this. If you are outbid it turns red and states “bid is against you”. Now this is where the fun started. Though I really wanted the registration plate I bid up to my maximum and lost the lot to someone else.

 

Moving on and feeling totally gutted about an hour later I received an email from Premier Motor Auctions that contained an invoice – which was rather odd as I did not win. I contacted Premier Motor Auctions by phone straight away and they said someone would contact me back. They did on Monday following Friday’s auction and where the most unhelpful bunch I have ever spoken with. I explained that screen was red and the bid was against me, but they would not have it and said they had the logs. So I requested that they sent them to me.

 

Logs of the auction they were not, well not if they were to be used for an expert witness then these would have to come from Premier Motor Auctions webhost who was hosting the auction software. What they had was merely a receipt supplied by third party (webhost) detailing times, bid amounts and by whom. Anything such as a timing delay or unobserved hiccup it would not show, or more importantly showing a smooth unobstructed auction lot took place.

 

Now this is really stressful as there require £8164.00 and they have now instructed a solicitor to deliver this to me.

 

My question is this and as an addional back up?

 

Should a consumer whom is going to bid be informed in the terms and conditions or anywhere else their rights governing the sale? As I have read somewhere...

 

“If they tell you that your rights under the Sale of Goods Act were excluded, ask them to show you the sign or disclaimer so that you can check this. In any event, the auction house should not be able to disclaim liability if they have been negligent.”

 

And also The “reasonableness" test - Unfair Contract Terms Act 1977

 

If anyone can point me of decipher the Sale of Goods Act or Unfair Contract Terms Act 1977 it would help a lot.

 

Richard

[legalpickle]

To the best of my knowledge SOGA applies to the sale of goods and problems with goods, rather than the in depth parts of contracts.

 

Those would be dealt with by the Unfair Contract Terms Act 1977 and the Unfair Terms in Consumer Contracts Regulations 1999.

 

If you copy the contract and terms here, I'll try and decipher them for you. [Don't post a link because commercial links are not allowed].

 

It is my understanding that some Auction sites have a rule that if the winning bidder was found to be fraudulent the second bidder automatically wins. In others, it says that the next bidder would automatically be given a chance to buy it at their final bid, which would be more fair, and is what a lot of people do when selling on eBay.

 

One question though; If you were prepared to bid so high, then why are you now unprepared to buy it? Bidding high without the money is nothing less than stupid and prone to problems.

[rps1969]

Hi legalpickle

 

In asnswer to your question

 

One question though; If you were prepared to bid so high, then why are you now unprepared to buy it? Bidding high without the money is nothing less than stupid and prone to problems

 

Can I just point out that as I lost the bid to someone who bid higher than me. As such my bid was lower than the amount that won the bid. Moreover, they are requesting more than my max bid for anyway. Hope this clears up the point.

 

With regard the terms and conditions they read like this

 

o You must register for internet bidding (NOT phone, post or bidding in person) to log into the internet bidding system.

o If you have lost your bidders number or login code, please call the Auction enquiry number.

o Your bidders number and login code are NOT the same as those you may have received for downloading catalogues.

o Please read the terms and conditions carefully, then tick the boxes below :

 

INTERNET BIDDING :: AUCTIONEERS’ CONDITIONS OF SALE

 

BIDDING

 

• 1. Any dispute as to any bid shall be settled by the Auctioneers in their absolute discretion.

 

• 2. Bids will be accepted only from Bidders who have obtained a Bidder’s Number from the Auctioneers. The Auctioneers, nevertheless, have absolute discretion to refuse any bid without giving a reason.

 

• 3. Immediately on the fall of the hammer a legally binding contract shall be deemed to have been formed between the Purchaser and the Vendor.

 

• 4. The Auctioneers shall not be held responsible for any loss of communication or connection between a Bidder’s internet system or mobile phone or ordinary telephone landline and that of the Auctioneers, however caused.

 

• 5. The Auctioneers do not accept any responsibility for the mis-use of your Bidder’s Number.

 

• 6. Bids made by internet are solely at the bidders risk and the service is provided subject to the Auctioneers other commitments at the time of the auction and therefore the Auctioneer cannot accept any liability if bids received by internet are not placed.

 

• 7.The Auctioneer has the complete discretion as to the manner in which the auction is conducted and the order in which lots are offered for sale not withstanding any numbers given to lots within the catalogue.

 

• 8. The Auctioneer has the sole discretion and the right to refuse any bid, and/or to withdraw a lot from the auction and if a dispute arises to re-auction a lot.

 

PAYMENT

 

1. Internet Bidders must forward full payment forthwith on receipt of the confirmation letter. It is of critical importance that funds are readily available to you to pay the purchase price for the lot in full before you make a bid.

 

2. VAT at the current rate is payable on the Bid Price of every Lot.

 

3. The Purchaser shall pay to the Auctioneers on making payment for the Lot, a premium of 7.5% of the final bid price, plus VAT on the hammer price and buyer’s premium together with the £80 assignment fee.

 

4. The Auctioneer is not liable for any disruption and or failure to the internet based payment system. The Auctioneer reserves the right to withdraw the service at any time with or without notice and the Purchaser must arrange to use an alternate method of Payment.

 

5. If the price of any Lot and any other payment due is not paid in full the Auctioneers/Vendor reserve the right to pursue the Purchaser and legal action will be taken to recover the full or outstanding balance appropriate.

 

6. If a Purchaser buys more than one Lot he must have paid for them all in full before Certificates will be issued in respect of any of them.

 

7. On the fall of the hammer a contract is formed with the Secretary of State for Transport and included in that a contract is deemed to have been formed between the Purchaser and the Auctioneer. In the event of late payment, the Auctioneer reserves the right to recover the amount owing to him and/or deal with the matter in any way they see fit. The Auctioneers retain the right to add a special service charge in the event of late payment.

 

This is an excerpt from the Auctioneers’ Conditions Of Sale.

 

The auctioneers are not held responsible for any loss of connection between a bidder's computer and the auction hall. All bids are made solely at your own risk. The auctioneer reserves the right to record all bids during the auction.

 

This is all there is with regard to bidding.

[gyzmo]

Sorry - not read all the text above properly. Did the higher bidder pull out? I believe that leaves the next higher bidder liable.

[MrShed]

I'm sure it wont....but I wonder if DSR applies here...?

 

Just a thought

[gyzmo]

s. 5(1)(f) excludes contracts concluded at an auction, alas.

 

Addition.

I am just wondering whether it would be worth asking for info o the other bid - preferably confirmation that they have not accepted any bid or that the last bid was rejected.

Edited October 13, 2008 by gyzmo
additional info/Qs

[butty_a]

Sorry - not read all the text above properly. Did the higher bidder pull out? I believe that leaves the next higher bidder liable.

 

Wouldn't have thought so or else every one would pull out and no-one would be liable, sounds like they where artificailly increasing the bids to me and went one too far. SAR them for all details they have on you for that auction, easily retrievable as the auction will be numbered in an easy to find manner. Might gat some infomation from them that they don't want you to have i.e actual bids

[rps1969]

Thanks everyone for your reply so I will answer those with questions.

 

Sorry - not read all the text above properly. Did the higher bidder pull out? I believe that leaves the next higher bidder liable.

 

As far as I am aware they claim I was the highest bidder?

 

There is a very good guide supplied by the CAB that can be found on their website. I think it is advice guide . org . uk and the link is c_buying_at_auction.pdf but its difficult to understan my rights. It would read I have the same rights as if purchased normally online.

 

In answer to butty_a, I have seen the so called logs of the auction and I refer you back to my opening statement

 

Logs of the auction they were not, well not if they were to be used for an expert witness then these would have to come from Premier Motor Auctions webhost who was hosting the auction software. What they had was merely a receipt supplied by third party (webhost) detailing times, bid amounts and by whom. Anything such as a timing delay or unobserved hiccup it would not show, or more importantly showing a smooth unobstructed auction lot took place.

 

However these logs do for whatever reasons indicate I was the winning bidder and if there was a problem at that moment in time with who was hosting their software it did not show up on the logs they sent. This is why I asked for the server logs, which have not been supplied.

 

I had two witnesses who where with me at the time who can state the the "bid was against me" and I did not win as they are claiming. I am wondering if they are at a loss as if i where the winner then the other person lost and visa versa, moreover what if we both had same message?

[butty_a]

I know you said you have seen some logs of sorts but did you SAR them you or just ask them in general for the evidence, you may get extra infomation from them that they where unlikely to give you for free with a SAR, just ask for every thing they hold with your name/username etc on it. It may be enough to absolve or may show naff all, dont know untill you try. If you did do a SAR then you might want to talk to CAB to see where you stand, especially if the logs/reciepts are inconclusive.

 

Was you on the website until the auction finished, somebody may have inadvertainly bid for you, be it by accident or on purpose, is the IP address on the logs the same as you computers address for all the bids?

[rps1969]

Thanks for your replies.

 

Its going off track somewhat. Being a computer consultant i understand what is required log wise and what to look for.

 

What is really required is advice concerning what is mentioned online at the CAB website advice guide . org . uk and the link is c_buying_at_auction.pdf and where i stand.

 

If they tell you that your rights under the Sale of Goods Act were excluded, ask them to show you the sign or disclaimer so that you can check this. In any event, the auction house should not be able to disclaim liability if they have been negligent.

 

And also The “reasonableness" test - Unfair Contract Terms Act 1977

 

Please anyone?

[butty_a]

https://www.premiermotorauctions.co....ersley-cat.pdf

 

Thats a link to the lastest catalogue which I am sure you have trawled but have posted any way. In it is a reasonabley detailed terms of sale but like you I couldn't find any thing with regards to your rights under the sales of goods act, or rather the lack of them due to it being an auction.

The terms of sale though appear to be different from the ones you have put up on the thread but as I have said they dont give you the warning.

 

Just a question though, with out knocking your intelligence, was the price they are after roughly 25% more than you bid, if so, fees are added after the hammer has fallen.

 

Also, back to getting your evidence. Condition 7 in those terms of sale states that all bidding is recorded on video and audio for security reason. If you where in fact out bid then this is the infomation you want as it will exonerate you, a couple of friends who witnessed it wont be particularly independant regardless of the truth. Much easier than trying to debate the rights or wrongs of thier T&Cs, that is still an option but save that as a last resort.

 

 

Ah just found this on ebay

 

eBay UK: Safety Centre: Know Your Rights

 

Read the part about changing your mind, ''If a business seller has not provided the information required under the Distance Selling Regulations (as discussed above), the buyer will have up to 3 months to cancel the contract and get their money back.'' The any relevant authorisation scheme I think would be the clincher I.E nothing about SOGA

 

 

As they are an aution, online or not the rules should still be the same, hope this helps.

 

Also the CPUTR 2008 give further protection for misleading practices, this includes omissions.

Edited October 15, 2008 by HSBCrusher
link put back in :-)

[rps1969]

Some good points you have hightlighted there, thanks.

 

Can anyone expand on this

 

Ah just found this on ebay

 

eBay UK: Safety Centre: Know Your Rights

 

Read the part about changing your mind, ''If a business seller has not provided the information required under the Distance Selling Regulations (as discussed above), the buyer will have up to 3 months to cancel the contract and get their money back.'' The any relevant authorisation scheme I think would be the clincher I.E nothing about SOGA

 

 

As they are an aution, online or not the rules should still be the same, hope this helps.

 

 

I also read uder the Distance Sell Regs the following

 

The Distance Selling Regulations apply to items purchased via Buy It Now listings and Second Chance Offers on eBay.co.uk. However, they don't apply to auction format listings on eBay.co.uk.

 

Something else i have just noticed with regard "(2)A sale by auction is complete" Sale of Goods Act 1979 (c. 54)

 

57 Auction sales

 

(1)Where goods are put up for sale by auction in lots, each lot is prima facie deemed to be the subject of a separate contract of sale.

 

(2)A sale by auction is complete when the auctioneer announces its completion by the fall of the hammer, or in other customary manner; and until the announcement is made any bidder may retract his bid.

 

If no provisions where in place so "any bidder may retract his bid" then does this not go against the SOGA also ?

Edited October 15, 2008 by rps1969

[legalpickle]

Sorry to disappoint you lot but DSR doesn't apply to auctions or personalized items.

 

Hi legalpickle

 

In asnswer to your question

 

Quote:

One question though; If you were prepared to bid so high, then why are you now unprepared to buy it? Bidding high without the money is nothing less than stupid and prone to problems

Can I just point out that as I lost the bid to someone who bid higher than me. As such my bid was lower than the amount that won the bid. Moreover, they are requesting more than my max bid for anyway. Hope this clears up the point.

That doesn't answer my question. If you listed your max bid as £500 and the bidder above you was fraudulent, your max bid should hold. I fail to understand why if you were prepared to bid so high, you are now complaining? You got the item at your max bid! If they wanted to add £50, I'd understand.

 

I personally don't think those terms are unfair.

[rps1969]

Hi

 

I think we are somewhat confused.

 

The amount they are requesting was not my Max Bid ammount. My max bid was some £1000 less. If they were asking for that then I would not have a problem. The bidding continued after my max bid amount and I have no way of knowing if the winning bid was fraudulent and to be fair I cannot see how or why that should involve me.

 

I offered my max bid amount and they refused claiming they wanted the amount that showed on their data.

[gyzmo]

I think you shoul demand that they show proof. If they are making the accusation, it is for them to prove.

[legalpickle]

Sorry for the misunderstanding.

 

I agree with gyzmo here. I would write them a harsh letter - draft it here without any confidential information - and I'll try to proof it for you, demanding their evidence that you went over that bid, clearly stating what your max bid was and that this is the maximum you are prepared to pay.

 

I just wonder, could it possibly be that VAT is added to your bid? Because if £8,164 is £1,215.92 more than your bid, then it would make sense that VAT is automatically added to your max bid. I am wondering if this is the scenario here, and you weren't aware of this. Just fathoming a guess as to what could have happened.