Section 75 of the consumer credit Act -not elligible

[juliusceasor]

Can any legals advise as I have a problem with a credit card re a purchase that breached the misrepresentation and sales and goods act.

 

I have held the CC jointly liable with an item I purchased that was supplied and the item did not match the description. I have involved TS and they agree that the item was misrepresented. I have pursued the CC as the supplier was a complete waste of time for both a refund and consequential loss. All this has been discussed with TS and they confirm I am entitled to and have grounds to claim.

 

The crux of the issue is now the CC is only offering a goodwill refund of the purchase but will not entertain the consequential loss. Their reason is that the invoice for the part is not in my name and not delivered to my personal address, there is a valid reason for this. However the purchase was on my personal CC in my personal name and appears on my personal CC statement and therefore TS and myself believe that Section 75 applies as it is a purchase I made as a consumer. It is irrelevant who the invoice is made out to by the supplier or what I did with the purchased item after receiving it.

 

I am now faced with approaching the ombudsman or small claims to proceed further, both of which I am happy to do but I know the ombudsman route will probably take forever. So if I go to the small claims then I want to establish first if there are any grounds for restricting my rights to section 75 as the CC purports to.

 

Any advice please? :-|

Edited August 11, 2009 by juliusceasor

[bedlington83]

What did you buy and what is the consequential loss?

[juliusceasor]

What did you buy and what is the consequential loss?

 

Thanks for the reply and please don't take offense but, the item I bought and the consequential loss are not relevant to the question. The item was misrepresented (ie sold as a blue part and received a red part) and therefore any loss because of the misrepresentation and breach of sales of goods act, are entitled and have been established as being valid and claimable.

 

The issue is whether the CC can decline its responsibility from section 75 for the reasons given, it is not declining on grounds of the item or consequential loss aspect. :-|

Edited August 11, 2009 by juliusceasor
typo

[buzby]

Whoever told you Consequential Loss applied is misleading you. There are very few instances where this can be applied - and the nature of the goods IS relevant to this.

 

The nature of the dispute (different address) is immaterial though, you do not lose these rights by making a gift of the item to a third party so I believe they're simply looking for a route to cut the claim further. If they are offering something, it may be better ro accept, as if the offer is withdrawn because you think you will get more, and then don;t - you'll lose the lot.

[juliusceasor]

Whoever told you Consequential Loss applied is misleading you. There are very few instances where this can be applied - and the nature of the goods IS relevant to this.

Thanks but I didn't ask this as a question originally so I don't see the relevance to the question. But it seems to be a point of interest and I am certain I am entitled to claim.

Lets say I purchased and was sold a part which was misrepresented by and as such is in contravention of the sales of goods act 1979 (as amended) as not fit for purpose and the Misrepresentation act 1967 and the Trade descriptions act 1968. If the part say a clutch is for a ford 1.6litre and is described as such and supplied with this description on the invoice but the actual part is for a 1.1 litre and doesn't fit. If the correct part is then sourced and fitted at greater expense, then that expense is claimable. Because it is directly due to the incorrect part being supplied and it not being as described nor fit for purpose.

 

The nature of the dispute (different address) is immaterial though, you do not lose these rights by making a gift of the item to a third party so I believe they're simply looking for a route to cut the claim further. If they are offering something, it may be better ro accept, as if the offer is withdrawn because you think you will get more, and then don;t - you'll lose the lot.

Thank you. SO does that also apply if as a consumer I bought a clutch which I then used in my business of fitting clutches I would transfer that item to the business through my expenses. But when I came to fit said item it is not correct I then have to return it. Therefore does the fact that I bought it as a consumer on my personal CC still hold true?

 

BTW i don't actually have anything to do with clutches.

Edited August 11, 2009 by juliusceasor
typo and I don't want lost of clutches to change ;)

[juliusceasor]

 

 

Thank you. SO does that also apply if as a consumer I bought a clutch which I then used in my business of fitting clutches I would transfer that item to the business through my expenses. But when I came to fit said item it is not correct I then have to return it. Therefore does the fact that I bought it as a consumer on my personal CC still hold true?

Anyone familiar with section75 care to add their opinion on this aspect of ultimate use of the card under section 75?

 

If they are offering something, it may be better ro accept, as if the offer is withdrawn because you think you will get more, and then don;t - you'll lose the lot.

No that won't happen as they have refunded the cost of the item.

They are simply denying consequential loss on the grounds of use of the card under section 75 due to who the invoice was addressed to.

[buzby]

Let us assume that s75 'could' apply and the CC company took an alternative view. Your only recourse would be to take them to court and prove your case in front of a judge. Not impossile, but still a risk in that your would have to speculate that s75 would apply in your case.

[juliusceasor]

Let us assume that s75 'could' apply and the CC company took an alternative view. Your only recourse would be to take them to court and prove your case in front of a judge. Not impossile, but still a risk in that your would have to speculate that s75 would apply in your case.

 

I have the option of the ombudsman also.

 

On what evidence out there is there doubt that section 75 wouldn't apply do you think? I am aware of exceptions but none seem related to this.

Given that I would proceed to small claims with this if needed, but that this may become a point of law for clarification, it could get bumped out of the small claims track, perhaps initially I would be better served proceeding to the ombudsman first.

 

I know for a certainty that TS made the retailer make changes to the description of the goods supplied to me. The CC tried to wriggle on T&C's and claiming the goods were not miss described but ultimately these were answered and proven not to be correct. They finally laid the reason for refusing Consequential loss on the grounds of the invoice address and delivery address used as not party to the section 75 as I have stated. And the refund for the item was thus goodwill.

 

I am aware that CC have tried several times to wriggle on section 75 namely overseas purchases but I haven't seen this as an excuse before. Equally nothing in my card use T&C's prevents me making the transaction I did.

[Kraken1]

I think that the ombudsman has recently ruled against this or in similar circumstances - not sure where I got that from, maybe MSE. I think the rationale is that the class of loss is too remote as the contract was entered into for a third party, and not the card holder, even though the finance facility was provided by the card holder.

 

Not sure I entirely agree but then I haven't seen the full reasoning. I can sort of see a vague situation where indirect losses or special damages might not flow, but I'm not yet entirely convinced myself. I do think that the devil will be in the actual detail and therefore the actual items, costs and losses being sought need to be know. I could see all sorts of mistake, and foreseeability issues being thrown in to the mix along with lots of loss of bargain debates.

 

So, in conclusion, there might be something in the argument, and I am sure I heard a rumour about it but have nothing more substantial to add.

[juliusceasor]

I think that the ombudsman has recently ruled against this or in similar circumstances - not sure where I got that from, maybe MSE. I think the rationale is that the class of loss is too remote as the contract was entered into for a third party, and not the card holder, even though the finance facility was provided by the card holder.

That would make some sense, however in my case I would argue if they believe that then I and my company could be classed as one and the same, so that may add a twist that perhaps wouldn't be true if the third party was truly a third party.hmm

 

If you can remember where you saw it then i'd be pleased to have a look through. have read through several posts by the ombudsman but not seen that myself.

 

I think on balance the ombudsman route is seeming more preferable after all.

 

Thank you.

[juliusceasor]

not sure where I got that from, maybe MSE.

 

From MSE I think this is the thread. forums.moneysavingexpert.com/showthread.html?t=1205065&page=8

 

the CC is in your name therefore the credit is in your name and as such Section 75 should be in play, it is you who will pay the money to the CC company and any interest that may incur, if you default the CC company will not come after your daughter for any monies, it will be you they come after therefore the CREDIT, ( which is what Section 75 is about), is a contract between you and the CC company.

 

I'll post over there and see if they can help

[Kraken1]

I don't think it is a s75 thing, it does apply, period. It is a contract law and a loss thing. Even where s75 applies and where there is a breach of contract there still might not be a claim if there is no loss or if that loss is too remote.

[juliusceasor]

I don't think it is a s75 thing

 

Yes but that is their grounds for not paying.

 

As to the remoteness of my claim I am satisfied that won't apply, so I will be pursuing this as it would seem on balance that S75 will allow me to hold the CC severally liable.

 

Thanks for the help.

[Kraken1]

I thought it was a remoteness problem from your first post - that they'll pay the contract price but not the consequential losses?

[juliusceasor]

that they'll pay the contract price but not the consequential losses?

 

No, the reason for refusing to pay under the Section 75 is because the invoice from the supplier is not in my name. Sorry if I have given that opinion.

They also state that because this invoice is not in my name there is no misrepresentation or breach of contract. However this is not TS view nor my own. The part was misrepresented there is no question of that.

 

The reason I am checking on section 75 is that it is far easier to pursue against the CC as severally liable, than against the supplier because I have the option of the ombudsman. The supplier is not at all helpful and obstructive and has been offensive and rude.

If the CC has obfuscated or is itself misinformed over section 75 and there is no case history in support of their position then I see no reason for the Ombudsman not to uphold my claim.

[Kraken1]

You still might have a remoteness problem as the contract is removed from you.