SOGA. Not as advertised/ fit for purpose. Letter check pls.

[WeeRascal]

Hi there, below is a letter that I'm sending to a car trader. I have already posted here about this and have garnered some great tips. Could someone with Small Claim experience please advise whether my letter is satisfactory/robust/correct?

 

Below the letter is an extract from my original post for context.

 

Thanks

 

 

 

_______START_________

Attn: ________

Used Car Specialist

__________,

_________

ML3 XXX

 

Dear XXXX, I bought a Land Rover Discovery 2, registration SD51 XKK from you on 16th June 2011 for £3,995 which is not as advertised, and not fit for purpose.

 

The problems are: faulty crankshaft, cylinder and turbo unit, resulting in the failure of the vehicle to drive. (see engineer’s report enclosed).

 

After taking legal advice, I wish to reject the goods and claim a repair or refund in accordance with the sale of goods act.

 

 

NOT AS ADVERTISED

The vehicle was described in your Autotrader advertisement as being in “excellent condition” and did not describe any faults. Furthermore, no faults were brought to my attention by you, before making the purchase. There was no mention in the advert that the vehicle was being sold for ‘spares and repairs’, on the contrary, it boasted that the car had been recently MOT’d and when I looked at the logbook, a service had been conducted a few weeks before I saw the vehicle – signed by you, to verify you had carried it out. I note that an oil change and oil filter had been fitted. Why so much effort and expense for a vehicle that is effectively being sold for scrap or parts?

 

NOT FIT FOR PURPOSE

The vehicle failed only 5 weeks after it was purchased. You will note that the likely origin of this failure was the fitting of an incorrect bolt between the drive gear and the oil pump and that subsequently, extreme damage was inflicted on the engine. These faults were clearly inherent at the time of purchase.

 

I have made 2 phone calls to you in order to reach some form of compromise and you have rejected both on the grounds that you sold the car for ‘spares and repairs’. The terms and conditions printed on your invoice do not negate your legal responsibilities as a Trader/Dealer to sell a vehicle that is fit for purpose, nor can signing any agreement that you present diminish my statutory rights as a consumer.

 

But at this juncture, I am still willing to compromise. The engineer’s report suggests that it is likely I will have to pay around £3,000 including VAT to make the car ‘fit for purpose’.

 

1. In line with the Sale of Goods Act, you have the opportunity to make repairs to the vehicle to make it ‘fit for purpose’, but you will be required to make any transport arrangements to carry out the repairs. I will ask a specialist to inspect the vehicle after this has been conducted.

 

2. I am prepared to accept £2,300 from you in order to have Gemm 4X4 make these repairs.

 

3. You may wish to provide me with a refund.

 

If I do not receive a response from you within 14 days of receipt of this letter, I will proceed with legal action through the Small Claims Court, whereby the onus will be on you, the trader, to prove that the car was fit for purpose at the time of purchase.

 

Yours sincerely,

 

Derek Sneddon

 

____________END__________

 

This is the advertisement which OFT have obtained from Autotrader: -->13th June: Car advertised in Autotrader as the following: 2001 LAND ROVER DISCOVERY 2.5 Td5 S 5 Seat 5dr Diesel Sw 95,000 miles, excellent condition one owner since new, full service history long mot till may 2012 immaculate bonatti metallic, 1st genuine caller will buy for only £3995, a series 2 landrover discovery td5 for only £3995, this is giveaway price, some old mark 1 discoverys are still comanding £3000, this is a 51 plate series 2 td5 for only £3995, grab this bargain, was £4995, must go this week, be prepared for this winter, be quick, no offers. £3,995 No offers. Tel: 07842 XXXX Telephone Number: 0784XXXXXX

 

When I bought the car, the trader had me sign the usual disclaimer "I understand that this is a used car and accept that it may have faults" etc. Here are the terms printed on the sales invoice:

1. I have been given full opportunity to inspect the vehicle and accept its condition. 2. I am fully aware that this is a used vehicle therefore may have faults. 3. I am fully aware and agree that this vehicle is being sold on the condition that there is no warranty/guarantee been implied or given to me. 4. I agree to purchase this vehicle on the condition that it is to be used for any spares or repairs required to make it roadworthy. 5. I am fully aware that this vehicle should not be used on a public road until it has been made roadworthy and complies with all current road traffic acts and that the responsibility for making the vehicle roadworthy rests with myself.

6. By signing I agree to the above conditions.

[perplexity]

———

Edited August 6, 2011 by perplexity
Pearls before swine.

[WeeRascal]

This must be the best letter I've ever written. 96 views, and not one comment? Anyone?

[raydetinu]

why are willing to compromise, sign of weakness in case. Let that come from the dealer to propse a deal.

if you are rejecting it then that should be your one and only statement, options mean that you are not sure.

[perplexity]

why are willing to compromise, sign of weakness in case. Let that come from the dealer to propse a deal.

if you are rejecting it then that should be your one and only statement, options mean that you are not sure.

 

 

We'd already been through that.

 

The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them and the "Buyer’s right of examining the goods" exists "Unless otherwise agreed".

 

I have no faith in the merit of the claim.

 

It is one thing to accuse the seller of misleading, a charge that may well succeed, quite another to play the fool, notwithstanding a piece of paper, signed to the opposite effect, to say that you were "fully aware".

 

There is no particular right to volunteer to be a victim of crime.

 

A judge could find that you should have known better than to sign the disclaimer; you were the author of your own misfortune and that would be that. It is also possible to win the claim but not be awarded the costs, for the same reason.

 

It is also possible that a district judge could reserve his judgement, pending the outcome of criminal proceedings, which is to say that the priority should be to prosecute the offence, with the result of the prosecution to be declared as evidence to support a civil action, if need be.

[WeeRascal]

why are willing to compromise, sign of weakness in case. Let that come from the dealer to propse a deal.

if you are rejecting it then that should be your one and only statement, options mean that you are not sure.

 

OK, fine. But putting in the option about the dealer paying for my engineer to make repairs is still viable? (I'm not convinced he will make proper repairs if he does it himself).

[raydetinu]

I dont believe you can do that; you either reject it or let the dealer repair under SOGA. this would be much stronger position if you went to court if he does not comply.

You can of course propose anythng or come to another agreement but this would be outside the act and may compromise your position if wanted to persue through the court.

did you contact trading standards and refer him to spaek to them as to his responsabilities.

you can also speak to consumer direct for advise.

[WeeRascal]

I dont believe you can do that; you either reject it or let the dealer repair under SOGA. this would be much stronger position if you went to court if he does not comply.

You can of course propose anythng or come to another agreement but this would be outside the act and may compromise your position if wanted to persue through the court.

did you contact trading standards and refer him to spaek to them as to his responsabilities.

you can also speak to consumer direct for advise.

 

The problem I have is that to get to a quick resolution, I need to take this through the Small Claims Court. In Scotland there is a claim limit of £3,000. So if I claim for a refund I'll lose about £1,000 because I paid £3,995 for the car. I was going to get the repair made then pursue, but I'm guessing that I need to send this letter to offer the trader an opportunity to make repairs first. I did contact Consumer Direct and they have advised that his Ts&Cs may not be legal, perhaps even criminal.

 

So if he rejects the repair claim, can I force the repair through the SCC, or would it have to be a refund claim?

[perplexity]

I browsed Autotrader's terms and conditions, http://www.autotrader.co.uk/common/mytrader/terms-and-conditions.jsp expecting to find this, or words to the same effect:

 

The material on the Website does not constitute advice and you should not rely on any material on the Website to make (or refrain from making) any decision or take (or refrain from taking) any action.

etcetera.

 

There is, eventually, only so much that one can afford to completely ignore and expect to get away with it.

[raydetinu]

No court cannot force him to do repair.

If rejects total refund and repair then you can get repaired and claim back monies, through courts.

you need to send LBA and give him 14 days to respond before you get repairs done, this is part of court rules to show you have given him every opportunity to resolve the issue. would also help if you got the diagonosis of fault in writing from another garage or preferbly motor engineer/expert.

good luck

[WeeRascal]

No court cannot force him to do repair.

If rejects total refund and repair then you can get repaired and claim back monies, through courts.

you need to send LBA and give him 14 days to respond before you get repairs done, this is part of court rules to show you have given him every opportunity to resolve the issue. would also help if you got the diagonosis of fault in writing from another garage or preferbly motor engineer/expert.

good luck

 

OK, so this sounds fairly simple. I'll send the above letter asking for repair or refund (minus option 2). If he rejects, I'll send a further letter stating that if I do not receive a reply in 14 days, I'll have the repair made and pursue to reclaim the monies through the SCC.

 

I have a written letter of diagnosis from a very reputable 4X4 specialist, who has made recommendations.

 

Sound good?

[raydetinu]

the report of whats wrong must come from the expert or other garage, not your version of what he told you, court would not accept that.

As I said before you can reject car and ask for all of your money back; he will not do that if you are prepared to let him go for the cheaper soluton of a repair! so no point of even asking for a refund IMO.

You should also mention that he contact Trading standards if he is unsure of SOGA and customers rights.

[perplexity]

You should also mention that he contact Trading standards if he is unsure of SOGA and customers rights.

 

 

Trading Standards is an enforcement agency, not a legal advice service.

 

If you ask for legal advice they will probably refer you to Consumer Direct who will refer you to a solicitor or a legal advice agency:

 

http://www.direct.gov.uk/en/Governmentcitizensandrights/GettingLegalAdvice/Gettinglegaladviceandlegalaid/DG_195416

 

It is not just about the consumer protection legislation; to dispute a breach of contract there is also the need to understand the law of contract.

[WeeRascal]

the report of whats wrong must come from the expert or other garage, not your version of what he told you, court would not accept that.

As I said before you can reject car and ask for all of your money back; he will not do that if you are prepared to let him go for the cheaper soluton of a repair! so no point of even asking for a refund IMO.

You should also mention that he contact Trading standards if he is unsure of SOGA and customers rights.

 

It's not my version. See above, I have a written report from an engineer. I'll remove the refund part, for now. If he rejects the repair claim, can I go ahead and have the repairs made and pursue him through the SCC to retrieve the money?

[raydetinu]

yep that would be ok.

[Kraken1]

I think that this is going to be a hard case for you to mount, not impossible, but hard. The tests you need to meet under the SOGA can generally be limited by the price paid and the expected quality of goods of that type; by that I mean that the standard you might expect of a new Landy is not that you will expect of a ten year old model. In many respects, you almost need to expect some problems. Sometimes what is said in an advert is a condition or term of the contract, sometimes it is a 'mere puff' and there is no right of redress attached. The trader might simply argue that the vehicle was in 'excellent condition' for its age and type, not as might be compared to a model with half the mileage and only 3 years old.

 

Even if you win, the having it repaired might go out of the window as it is disproportionate to the purchase price. I think that the argument might fly, as there is a 25% difference, but it is something to take into consideration.

 

I also think that the argument should be that it is not of satisfactory quality because it is not free from defects or that it is reasonably durable, not that it is not fit for the purpose. It is, it just needs repair. If you'd bought it to seat 10 people, then it would not be fit for the purpose but as it is, with repair, it is.

 

If I have read it right, is it the case that the dealer did some work on the car before you bought it and that this was caused the fault?

[WeeRascal]

@kraken1 Appreciate you taking the time and offering up some serious challenges. I am not expecting this to be a walkover and I intend to follow it through.

 

I understand that the car is old. I expected there to be faults and I found several (welded chassis, corroded wheels, very worn clutch). But £4,000 shouldn't just buy me a bag of bolts. That price is actually on the high side for a vehicle of that age and I paid the full asking price.

 

I was of the understanding that fit for purpose meant that it had to both deliver on both its everyday purpose (ie to drive) and its specific purpose (your 10 seater analogy).

 

As far as when the fault occurred is concerned, the 4x4 engineer has suggested that the Trader put the wrong bolt on the oil pump resulting in the fault, because he was the last person to work on that area to replace the oil and filter, plus he conducted this during a service, which is logged in the vehicle logbook. But he is not willing to commit this to paper and it is only implied.

 

Either way, I sent the letter as you see it above with a few changes. I am certain he will reject the claim by return.

 

D

Edited August 10, 2011 by WeeRascal

[perplexity]

I was of the understanding that fit for purpose meant that it had to both deliver on both its everyday purpose (ie to drive) and its specific purpose (your 10 seater analogy).

 

 

You are an insufferably ignorant idiot, so are more than likely to lose, the rule of thumb being that the party most likely to lose is the one most in need of a reality check.

 

It was already pointed out, in detail, in at least one of the several threads you started, that Section 14 of the Sale of Goods Act explains exactly what it means for goods to be fit for purpose.

 

If you can't be bothered to heed the advice that a member takes the trouble to give, and to follow the links to the legislation, to see for yourself, then in my opinion you deserve to lose and I hope you do.

 

P.S.

 

Do you know how to read or does somebody else do it for you?

 

That is meant as a serious question.

Edited August 10, 2011 by perplexity

[WeeRascal]

yep that would be ok.

 

I thought I would send you this as events have taken an extraordinary turn.

 

I got a call today from the 4x4 garage where my car is being stored to say that the interior had been set on fire last night. Quite extensive damage to seats, roofing panels, door cards, steering wheel, and some plastic units.

 

When I heard the news I nearly dropped to my knees. Obviously I'm insured (Churchill) and the police are currently making an investigation, but I wonder if this might be a blessing - karma, if you like.

 

What a bloody mess.

 

Anyway, I thought you'd like to know. Thanks for the help you've (all) imparted - much appreciated.

 

This may or may not change my game plan.

 

D

[WeeRascal]

I have received a letter from the Trader and reply to mine (posted above), and thought I would share it with you. If anyone has a view on what my next move should be, please feel free to post a reply.

 

In response to your letter date 07.08.11, I also have taken legal advice and have been in direct contact with Trading Standards. I would like to inform you that I will not be accepting responsibility for anything that has happened to the engine on your Land Rover. NOT AS ADVERTISED There were no faults advertised on the Autotrader advertisement as there were no engine faults on the vehicle at the time of sale. You also mentioned that a service was conducted and signed by myself. I informed you at the time of sale that the vehicle had only been given an oil and filter change. This is only a matter ofcourse that any vehicle I own has clean oil.

NOT FIT FOR PURPOSE This vehicle was fit for purpose. I myself used this vehicle and would have noticed any problems. When you originally telephoned me regarding this you openly admitted that you had used the vehicle for over a month and found no fault. I would also like to point out that on the day of purchase your friend stated he was friendly with someone who was an expert on Land Rovers and that when you got the vehicle home it would be being put up on ramps and thoroughly checked over to make sure you were happy with it. Is this the same person who has provided you with the report? I presumed that since I did not hear from you that you had done any necessary checks to satisfy yourself of the vehicles conahion and you were happy with it. I disagree with the engineers report. To a Land Rover mechanic that I have spoken with this does not make sense that someone would replace a wrong bolt so far into an engine. There would be no reason for this. This also is not an independent report. I have no knowledge ofhow you treated this vehicle in the five weeks you were driving it. This was not a new vehicle that you bought. It is a ten year old vehicle with nearly 100,000 miles on the clock and of your own admission you used without any faults occurring. As previously stated I have no knowledge of what this car has been used for or how it has been treated.

[raydetinu]

looks like you would have no choice now but to take him to court.

But you would need an independant qualified engineers report on what has gone wrong.

judges are not always predictable.

however if your insurance co is going o pay out on the vehicle, perhaps no point now

[WeeRascal]

looks like you would have no choice now but to take him to court.

But you would need an independant qualified engineers report on what has gone wrong.

judges are not always predictable.

however if your insurance co is going o pay out on the vehicle, perhaps no point now

 

Thanks, I'm treating the two issues separately, but inevitably one will influence the other. Why isn't the engineer that wrote the report based on his findings independent? Before the car's issue, I had never even heard of him and his garage...

[perplexity]

The trader's response is exemplary.

 

If a seller wants to know how to respond to a claim, it will be useful to point to that.

 

The curiosity is the way that the signed disclaimer is suddenly forgotten.

 

The bickering over the supposed breach of contract could go on forever, and I doubt that a judge would be so grateful for that as to eventually award the costs, to either party.

[raydetinu]

just depends on his qualifications etc. as an expert, not his independance. otherwise based on opinions.

[perplexity]

 

An independent expert would be equally available to either party, to communicate with or cross examine.

 

In order to form their own opinion, judges prefer facts, so a witness statement is supposed to represent whatever the witness is prepared to confirm at an oral hearing, subject to cross examination if need be.

 

The friend who seems to have been present when the vehicle was delivered might be that much more helpful, to clarify the contractual issue. Is he or she willing to stand as a witness?