Misrepresentation - Private vehicle sale

[alb9694]

Hi all,

 

I recently bought a vehicle. The vehicle was advertised as having the V5 present and also having full service history.

 

I bought the car, no V5 was present, promised to let me have the V5 in person the following day. But he text to say he had lost the V5, this cost me £25 to replace. He ignored my texted request to compensate me for this £25.

 

(Please no lectures on buying without V5 documents, we HPI'd the car and the guy had the original bill of sale from the manufacturer in his name as he was the first owner, so his right to sell was unquestionable)

 

Also, on contacting the dealer that had stamped his service book, no record can be found of the services having been carried out. (therefore the book has been "stamped up"). It will cost me a couple of hundred quid to get the vehicle serviced.

 

 

Now I understand that private vehicle purchase is "Caveat emptor", but where specific guarantees have been made (and can be proven) and turn out not to be true, surely this is a material misrepresentation and thus not covered by the "Buyer beware" phrase? In fact, where he has created a document to support these misrepresentations, isn't this even a fraudulent misrepresentation?

 

Do you think there is any mileage in sending an LBA and then issuing small claims courts proceedings?

 

The guy is gainfully employed, and seems to be reasonably well off.

[perplexity]

"Private"?

 

An advertisement that seeks to supply at a price is presumably public, not private, so the definition of a consumer provided by Section 210 of the Enterprise Act applies.

 

http://www.legislation.gov.uk/ukpga/2002/40/section/210

[raydetinu]

misrepresentation would only apply to the vehicle itself, i.e. excellent condition etc. mileage.

The V5 was not there nor was the service book, but you bought it anyway, so down to you I think.

[perplexity]

Whatever you call it, private or public, goods must conform to contract; "caveat emptor" is a red herring. The need is to examine what the contract was.

 

There is nothing wrong with selling something that is inadequate, incomplete or unfit for a particular purpose so long as it was properly described as such and vise versa. Where a specific guarantee was made, the duty is of course to stick to that.

[alb9694]

misrepresentation would only apply to the vehicle itself, i.e. excellent condition etc. mileage

 

Misrepresentation refers to the contract not the item.

 

"Excellent condition" would not be covered under misrepresentation as this has already been stated as caveat emptor, or buyer beware in case law.

 

The contract was entered into on the understanding that the V5 was an integral part of the sale, and that the vehicle held full service history (both stated in the advert).

 

The service book was provided but was fraudulently amended to indicate services that had not been carried out. This is classed as "fraudulent misrepresentation" as it makes a statement about the vehicle's state of repair that is untrue.

 

The presence of the V5 was stated in the advert, and the contract was entered into on the understanding that the V5 would be provided the next day (with text messages showing his intention to do this). This is classed as "innocent misrepresentation" (providing that the seller did not already know that he had lost it), yet even though it is innocent, damages can still be claimed from the misrepresentor.

Edited August 14, 2011 by alb9694

[perplexity]

"Excellent condition" would not be covered under misrepresentation as this has already been stated as caveat emptor, or buyer beware in case law.

 

 

Come off it.

 

The sort of case law that would allude to dates back to the 19th century.

 

Since The Consumer Protection from Unfair Trading Regulations 2008, it is a strict liability criminal offence for the overall presentation of an invitation to purchase to in any way deceive or be likely to deceive the average consumer, to cause or be likely to cause the consumer to take a transactional decision he would not have taken otherwise, even if the information is factually correct.

 

http://www.legislation.gov.uk/uksi/2008/1277/regulation/5/made

 

Strict liability means that the only defence is the defence of due diligence; the innocence of the intention is immaterial.

[raydetinu]

best of luck taking that to court!

[perplexity]

If it is a matter of fact, that a service book was provided but was fraudulently amended to falsely pretend that services were carried out, it should not be a problem to convict the offender, because the burden of proof would fall to the accused, to show that everything possible was done to be sure that the record is correct.

 

This is the sort of case that Trading Standards ought to jump at.

 

The courts own the power to compensate a victim, though you would have to ask for that. Otherwise, if need be, proceed with a civil action. The conviction of an offender may then be used as evidence.

 

A judge may be reluctant to award the costs of a case to a claimant who might have been more careful but I don't really see how that would apply.

[alb9694]

Thanks,

 

I's a pretty open and shut case so shouldn't be too much of a problem.

[Desperate Daniella]

Hi,

 

Something similar happened to me many years ago. I took the seller to Court and won! The really helpful point was the advertisement, so if you don't still have it you'll need to obtain a copy from the newspaper/magazine. You contacted the seller on the basis of that advertisement and he can have no defence to the fact that he placed the ad saying that there was a V5 and the service history - unless he is going to state in court that the ad booker made it up.

 

DD

[Desperate Daniella]

By the way, if you do go to court you'll need to specify the misrepresentation, or the other side will try and have it thrown out on that technicality. You should go for "innocent or negligent",(include both), because fraudulent is a lot harder to prove and you can say to the judge that you would not like to think it was fraudulent

[alb9694]

Hi Daniella,

 

Good to hear about similar actions,

 

Thanks for the advice re the fraudulent part. Maybe I could suggest it might have been innocent because he could have taken the car to the garage, but they didnt do the work, yet still stamped the book?

 

Did you just claim for a V5 or was it for more?

[Desperate Daniella]

Hi,

 

That's why you must specify both "innocent or negligent" misrepresentation in the claim.

 

My situation was a bit different. They told me they had mislaid the registration document because the seller was in the process of moving abroad, but that they would send it on, but it never arrived. I then applied to the DVLA and got a new one and found out the car was three years older than they had told me. The advertisement said XX registration, BUT the card had been first registered abroad before being brought into this country, and at that time if a car arrived in the UK it was given the prefix/suffix of the year it arrived here and not the year of manufacture. The law has now changed on this and they are given a registration number that reflects the actual year of manufacture. It took me quite a time to get her to court, but I did and it was absolutely worth it. Like your seller they were perfectly well off, but they'd seen a chance for a sc*m. I claimed for the difference in price between the cars. The judge said it was absolutely clear that they had deliberately misrepresented the age of the vehicle in the advertisement.

 

On the subject of lectures, my solicitor went crazy when I said I had bought a car without the registration document, and I will never, ever, ever, do that again. And I'm sure you won't either!

 

DD

[perplexity]

By the way, if you do go to court you'll need to specify the misrepresentation, or the other side will try and have it thrown out on that technicality. You should go for "innocent or negligent",(include both), because fraudulent is a lot harder to prove and you can say to the judge that you would not like to think it was fraudulent

 

 

That is ludicrous, irresponsible and remarkably ignorant, in view of what I wrote before.

 

Why let a crook off so lightly?

 

Fraud is difficult to prove because an element of dishonesty has to be proved.

 

With the Consumer Protection from Unfair Trading Regulations applied, a similar act is a strict liability offence, so not at all so hard to prove.