Some unbiased advice for a new member please?

[character]

Story so far:

Offered our family car via a well known auction site. Prior to listing, sought advise as to its potential value via a free online valuation service. Listed our vehicle accordingly with a sensible reserve.

All fine, under terms of sale, put an inspection welcome or personal visit to inspect prior to bidding.

Last day of auction (by which time bidding was over reserve), got a call from an interested party asking could he bid but could I hold on to the car for his return some two weeks later from holiday- agreed so long as he paid for it.

10 seconds prior to close of auction, new bidder who offered £100 more than previous bidder. Invoice sent along with paypal details same day coupled with a mail inviting him to collect said car and asking payment method. Email reply from winning bidder now saying he was the one who telephoned, away on holiday, wants to see the car now in person before paying any money when he comes back from holiday.

 

Car offered to next bidder for less, prior to which original bidder was mailed confirming car no longer available due to the time delay and unwillingness to fulfill the contract of the sale till his inspection some two weeks later.

 

Original bidder then plagues me and spouse over next 24 hours with emails and telephone calls demanding that we sell to him and that we have a contract (no money paid by buyer in part or full). Third day then recieve "without prejudice" headed email demanding that we pay him £XXX claiming he has bought our former car from a main dealership (whilst on holiday abroad when he could have paid for it from us when he was asked to do so, no proof of purchase/ownership offered, so suspect he may have only paid some kind of deposit prior to seeing the car on his return) and threatening court action should we not heed his demand and pay him by the day he returns from his vacation (letter signed by him but written by someone with legal approach).

 

Next three letters via email over the following days and only three to four days after the auction finished, all with "without prejudice" on them, none replied to by us, things go quite for about a month or so.

 

Then recorded letter arrived pre-empted by yet again another email copy with "without prejudice" on it. Recorded delivery letter rejected, two days or so later, CC summons arrives claiming "loss of bargin" in effect, plus costs.

 

Facts

1) Original bidder failed to adhere to our terms of sale

2) Original bidder failed to pay in part or full when presented with an invoice to do

3) Car sold to next bidder for less due to the above

4) Valuation of vehicle was from a reputable source

5) Actual buyer (bidder 2) turned out to be a "independent dealer" who then sold it on to the main dealer who then must have offered it on some kind of manufacturers website, where bidder 1 must have seen it in his pursuit for what would have been an alternative car whilst on his holiday

6) Only letters of communications received demanding financial recompense or face legal action have the "without prejudice" on them, only one from him without the phrase claiming that have to sell to him due to a contractual obligation under the method of disposal of the webiste.

 

Allocation questionaire submitted along with us now counter suing for the difference, court date now set in our local court for early next year, looking for some backbone to our written replies/witness statements.

 

thanks

 

sorry mods if posted in the wrong section, new comer and all that, great site,

Edited November 29, 2009 by character

[macie]

i am no expert (and i don't know much about auction websites) but i would argue there is no contract. No money changed hands so there was no "consideration" between the parties. For a valid contract there must be consideration.

 

Consideration in English law - Wikipedia, the free encyclopedia

[vjohn82]

You need someone with knowledge of contract law to handle this in my opinion.

 

However, if you had a terms of sale and the bidder broke them... then this "offer" of yours had no legal "backbone" so to speak and this would be the main thrust of any defence in my opinion.

 

It's extremely complex though.

[kel123]

If memory serves me correctly this could be under a european law. I watched a program on it some time ago. It was about a house in france and the buyers had to move out to allow the person who had originally agreed to buy under a verbal agreement (never completed broke contract) to move in. The upshot was that the people who bought it never received any money back.

 

There is probably no way of checking but I bet they've done it before. My son got offered a similar deal last year when he put his car in Auto Trader - keep it for me and i'll pay you £200 extra in two weeks time he said by phone and left his email. My son checked with me and together we sent an email saying no! cc'ed back with a read certificate attached.

 

Give TS a call just incase

[hungrybear]

If memory serves me correctly this could be under a european law. I watched a program on it some time ago. It was about a house in france and the buyers had to move out to allow the person who had originally agreed to buy under a verbal agreement (never completed broke contract) to move in. The upshot was that the people who bought it never received any money back.

 

There is probably no way of checking but I bet they've done it before. My son got offered a similar deal last year when he put his car in Auto Trader - keep it for me and i'll pay you £200 extra in two weeks time he said by phone and left his email. My son checked with me and together we sent an email saying no! cc'ed back with a read certificate attached.

 

Give TS a call just incase

 

 

No this is under French Law for the sale of property. France has the toughest laws in Europe on Property transactions. IT's pretty much seller beware

[hungrybear]

You need someone with knowledge of contract law to handle this in my opinion.

 

 

 

Yes I agree.

 

On the brighter side, this sounds like the type of case where the DJ will send you all off (into a room in the court building and only if both parties agree) to try and come to an amicable agreement without court intervention. The last thing most DJ's will want is to get bogged down in the middle of an he said she said argument.

[kel123]

HB I know a little about Spanish property laws but nothing on French so i'll go with you on this, Scrub that bit of what I said.

 

It still smells of a [problem] though!

 

Kel

[hungrybear]

HB I know a little about Spanish property laws but nothing on French so i'll go with you on this, Scrub that bit of what I said.

 

It still smells of a [problem] though!

 

Kel

 

Agreed [problem] written all over it. Everything after 3 in the OP's list of facts is probably irrelevant.

 

Any chance you could post up exactly what the POC say? So that I can try and get my head round where he's coming from

 

BTW I used to sell property in France and funnily enough Spain, which probably has the most 'bullet ridden' property laws in Europe!

[kel123]

Character i'd definately ask TS if they could check all the parties out because I think you've had the old 1, 2, 3 [problem] done against you. You may well find the 1st and 2nd bidder are the same or atleast known to each other

 

 

HB having bought in Span 5 years ago the biggest advice I can give is: no matter how small get a Spanish mortgage it don't half change the attitude of the builders

 

I'd definately ask TS if they could check all the parties out

[hungrybear]

Character i'd definately ask TS if they could check all the parties out because I think you've had the old 1, 2, 3 [problem] done against you. You may well find the 1st and 2nd bidder are the same or atleast known to each other

 

I'd definately ask TS if they could check all the parties out

 

YES YES YES

 

I did think that it was convenient that it was bought by a trader who then sold it straight away to another trader when surely he would make more selling it to a private individual and THEN GUESS WHAT? Bidder number one finds your car for sale through this third person - what a coincidence!

 

Was this your 'bog standard' car? rather than something that a person would seek out like a classic car or rare top of the range bmw?

[character]

Hi all, many thanks for your replies, the car was sold to an independent trader, who in turn then sold it to a main dealership network, I have a copy of a very brief email (which I have checked out) comunication between bidder 1 and the main dealer confirming that some deal had been brokered, but of course does not confirm that any money had been handed over (either as a deposit) or when the final balance had been paid, which of course was our main reason for going with an alternative buyer - bidder 1 wanted to wait until his return from holiday to pay, seemed to think that as the highest bidder on the day, he was bidding to view rather than bidding to buy.

 

As for the issue of whether this is a [problem] or not, this claimant is throwing an endless amount of money at this "for the principle" of it as he is a former partner of PWC! (as my own investigations suggest/directors search).

 

Unfortunately, I am not in such a priviledged position and infact was selling the car in order to provide some financial cushion, I hasten to add the car was sold for what I'd paid for it 11 months earlier and was only a japaneese 4x4 less than 7k in value!

 

Clearly this appears to be someone who is being spitefull, just wants to show what he thinks is his superiority over the small man.

 

As far as we were concerned, the matter had been dealt with, he'd not given any money over when asked, wanted to materially change the contract of the sale to suit his own wishes, then went off and bought the car at £XXXX more and would appear to have a legal team who are happy to bill him £X per hour charge spent in telling him what he wants to hear.

 

As for this being a [problem], think not, but perhaps you could enlighten me as to who "ts" is and how I get in touch?

Edited December 1, 2009 by character

[hungrybear]

ts = trading standards

 

right so he was under no obligation to buy your car from a third party he could have more than easily pick up the same or equivalent elsewhere. It's not as if it were a mint condition DB5 or something. In fact he did not even know that he wanted to complete the purchase until he had viewed the vehicle so he had made no commitment to you, even by paying a refundable deposit subject to the car being as described.

 

As far as I am aware there is no enforceable contract until party a says I will pay x pounds and party b says yes I will accept x pounds. He has said I MAY pay x pounds subject to viewing two weeks after the auction, this is at best a 'promise to consider' and does not constitute a legally binding contract on either party. In fact you can show that you sold the car for a lower value to your detriment and gained no financial advantage other than forming a contract with a party willing to form the contract with you in a reasonable timeframe.

 

What you could do with now is some supporting statute and case law. It seems to me that we are in the realms of law of property and contract law. Also, this would seem to me to be legally the equivalent of gazumping in the estate agency business- even though you have effectively done a bit of reverse gazumping! I would start there as to why gazumping is legal.

 

have a look at 3 and 4 here:

 

eBay UK: Help : Topics : Policies and Guidelines : User Agreement

 

especially 3.1 - did you know that ebay is NOT an auction site

 

AND in 4 it clearly states that:

 

'By bidding on an item you agree to be bound by the conditions of sale included in the item's description provided that those conditions of sale are not in breach of this User Agreement or otherwise unlawful.'

 

so if it said payment in seven days in your listing then that is what applies - since he agreed to these conditions on the ebay website by bidding

 

And then we have rules for buyers:

 

Rules for Buyers: Overview

 

which contains this nice point:

 

Bid on or buy an item when they do not meet the seller’s terms as outlined in the item listing, or bid or buy with the intention of disrupting a listing. This is known as unwelcome and malicious buying.

 

I hope that all helps, it's probably a bit disjointed since its written as I thought/found it. But I love to help bit idiots back in their box if I can

[diddydicky]

Dear sirs,

 

I refer to your various letters under a without prejudice heading.

 

Kindly note that this letter is not sent without prejudice and will be disclosed to any court dealing with this matter

 

Your correspondence amounts to harrasment

 

you were required to complete the purchase at the close of auction and your winning bid amounted to a contract in which you were not allowed to impose retrospective terms as to "kicking the tyres".

 

In the light of your failure to complete the transaction the vehicle was sold to the next highest bidder, You therefore owe me 100 pounds.

 

Your letters, and the amazing co-incidence of you subsequently buying the vehicle from the other bidder seems almost too much of a co incidence to be true- probably because it is

 

All further correspondence from you will be filed where it belongs- in the waste bin and if you feel that you have a legal case against me i suggest you either "put up" or "shut up"

 

it is my opinion that you are a "con merchant"

 

no further correspondence will be entered into,

 

Yours sincerely

 

 

XXX

[vjohn82]

The kisses at the end make all the difference... it shows you are being reasonable

[diddydicky]

The kisses at the end make all the difference... it shows you are being reasonable

[hungrybear]

Dear sirs,

 

I refer to your various letters under a without prejudice heading.

 

Kindly note that this letter is not sent without prejudice and will be disclosed to any court dealing with this matter

 

Your correspondence amounts to harrasment

 

you were required to complete the purchase at the close of auction and your winning bid amounted to a contract in which you were not allowed to impose retrospective terms as to "kicking the tyres".

 

In the light of your failure to complete the transaction the vehicle was sold to the next highest bidder, You therefore owe me 100 pounds.

 

Your letters, and the amazing co-incidence of you subsequently buying the vehicle from the other bidder seems almost too much of a co incidence to be true- probably because it is

 

All further correspondence from you will be filed where it belongs- in the waste bin and if you feel that you have a legal case against me i suggest you either "put up" or "shut up"

 

it is my opinion that you are a "con merchant"

 

no further correspondence will be entered into,

 

Yours sincerely

 

 

XXX

 

 

All well and good, esp. the XXX:D. But they have received court papers so he has 'put up' already.

 

Character - any thoughts where you're going with this now

[diddydicky]

oops, misssed that- well that is good- now they must abide by the rules and not bullsh*t so you should be able to see them off fairly easily and counterclaim

 

if it was an e bay auction you need to print off the auction rules

 

it clearly states that the winning bid is a contract to buy- not to negotiate and there is i am sure plenty of evidence that supports your case that once the auction is won there is no leeway for wanting the then examine goods etc

[character]

Well what a sad day for justice.

 

Today was the Court Hearing, within 3 minutes of myself and my wife's arrival in the room the District Judge said that he had read the submissions from all parties, it was his judgement that ebay was an "auction" site and therefore by concequence when the "hammer fell" the claimant (we are the defendent) was oblidged to pay and that was "english law". In the same breath he also admitted that he had never used the site and was not knowledgable about its content but mentioned that his son had used it!

 

He then went on to say, that despite our recieving a reply from the claimant after sending our invoice, stating that he had no intension to pay for our vehicle until he had inspected the vehicle upon his return from holiday some two weeks later, we should have contacted the buyer to request payment for the goods PRIOR to offering the vehicle to the next highest bidder!!!

 

In such a circumstance, the District Judge then ruled our defence inadmissable!!

 

During the hearing he asked very little questions of my wife and myself, did not allow us to ask any questions other than to occassionally correct him with any inaccurate factual evidence spoke from his lips (and having to reffer him to our submissions sat in front of him), however he did allow the claimant to interrupt, and allowed him to talk and even at one point the claimant introduce "hearsay" evidence, unsubstantiated and with no factual evidence to back it up.

 

The Judge did not request to see any factual evidence from the claimant regards any receipts for payment made by him, no evidence that he infact owned the car, nor any advertsing from the Main dealership he bought our old car from to substantiate the price the car was advertised at by the garage.

 

He was extremely rude and arrogant towards my wife, when my wife did want to ask anything or say anything he would simply talk over her or would not make eye contact or acknowledge that she was even in the room.

 

The only point that I was able to put forward to him with any reasonable agreement was that the claimant had paid £2000 more for our old car from a Main Franachised dealer and in doing so would have benefitted from a 12 months unlimited mileage warranty, 12 months RAC cover, Pre-delivery Inspections, Full Valet. Not knowing what value such attractions would have cost the dealership and in the absence of any documentary evidence to give some indication, him simply admitted that he had no idea and explained "it was like putting a pin in" and then deducted £495 from the original claimants award!!! (no request for evidence to be sort).

 

He also made it very clear from the outset when he said that he "wanted to hear the case today".

 

So to recap, the judge applied english auction law to a non-auction means of disposal, ignored the fact that the buyer materially wanted to change the terms of the sale in response to our request for payment, sought no confirmation from the claimant what he actually paid for the car and whether he was the registered keeper, ignored the fact that the claimant demanded £1922 from us when he was infact out of the country and had a) not seen/inspected the car at the franchised dealers b) was not the legal owner of the car c) and never provided us with any copy invoice for the purchase of the car in any subsequent demands made by him for money us and only provided a photocopy of a vehicle order form confirming he had paid a £250 deposit at the time which was included in the allocation questionaire some 5 months later, ignore the constant forcefull and very threatning letters he had sent on 6 different occassions with a few days of the car being sold to someone else, when my wife expressed her anquish and genuine concern for the actions at the time by the claimants constant harrassment, he then pooh pooh her saying that "we all come from different worlds and I dont believe that they were intended to do that as I read these things all the time" in such a condicending manner I was all for walking out!

 

The judge did not allow us to put our side of the events, nor did he do the same for the claimant, had made a decision prior to the hearing commencing that our evidence was inadmissable, allowed the claimant to introduce "hearsay" in to the proceedings, allowed claimant to put forward his points, made a reduction in the claimants demand for compensation without any factual basis of its true worth, then awarded the claimant 8% interest on the loan when the claimant requested it against what the judge initially thought was 6%.

 

So they you have it, a complete travisty of justice in my opinion, never come up an ex-head of mergers and aqusitions from Price Waterhouse Copper, Birmingham!!!!

Edited February 18, 2010 by character

[callumsgran]

Character, what a shame you came across a judge who knew little more than a five year old about ebay.

 

Its not always the law that an ass (although mostly it is) its the asses who sit and pass the judgments without doing their homework!

[letsgetitsorted]

cant you appeal the decision,

if this is allowed then every person selling on ebay will be subject to such scams as this.

[kel123]

I am truely sorry to hear this.

 

What was the reason given to make your defence inadmissable?

 

kel