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    • Which would require a hearing....so the fee would be £255.00
    • When providing a copy of an executed agreement in response to a request under section 78(1) of the Act:   a.     must a creditor provide a photocopy (or other form of complete copy) of the original agreement that was signed by the debtor or at least provide a copy which is derived directly from the original agreement or complete copy thereof? or b.     can a creditor provide a document which is a reconstitution of the original agreement which may be from sources other than the actual signed agreement itself?   It was held that a creditor can satisfy its duty under section 78 by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself.   The judge accepted that as a matter of law, section 78 does not itself require any particular explanation as to how the copy was made. However, as a matter of good practice and so as not to mislead the debtor, it is desirable that the creditor should explain that it is providing a reconstituted as opposed to a physical copy of the executed agreement. This will also explain why the copy might otherwise look a little odd. The creditor can also explain in the letter that this procedure is satisfactory under the Act. The judge also provided that the following information needs to be included in the reconstituted copy agreement (assuming of course that it was present in the original):   1.     Heading: Credit Agreement regulated by the Consumer Credit Act 1974 2.     Name and address of the debtor 3.     Name and address of the creditor 4.     Cancellation clause applicable to the executed agreement.   All of the above may be provided on a sheet which is separate from the full statement of terms and conditions which also forms part of the reconstituted agreement. The creditor may, however, decide to reconstitute the agreement in a different way so that, for example, the information above is populated electronically onto the same sheet as that which sets out the terms and conditions, or some of them. The judge stated that he did not intend to prescribe the precise form of the reconstituted agreement. The key point is what information it should contain, subject to the point that its format should not be such as to mislead the debtor as to what he agreed to.   The judge also considered whether a statement like the one appearing in the reconstructed application form in Carey referring to the agreement to the terms and conditions "attached" needs to be included in the reconstituted copy. Alternatively if the application form had said "I agree to the terms overleaf", should that statement be included. The judge held that this aspect of the form is not necessary for the purpose of the section 78 copy, although there is nothing to stop a bank from putting it in or indeed from furnishing a copy of the type of application form or signature page that the debtor would have signed, as some banks have done. The statement referring to terms and conditions is not itself prescribed information and the supply of the terms and conditions which were applicable at the time will tell the debtor what he needs to know in terms of the content of what he signed up to, including the presence (or otherwise) of the prescribed terms.   In practical terms what this is likely to mean is that if the creditor chooses to use as the section 78 copy the section 63 copy, which would have been provided to that particular debtor at the time following execution of the agreement, this will be sufficient provided that the information referred to above is supplied. This exercise is not a mere formality. The creditor will need to check carefully that the details of the debtor at the time are correct and that those are the particular terms (including prescribed terms) that he/she agreed to. This is to ensure that it is an honest and accurate copy.   Must a creditor provide a document which would comply (if signed) with the requirements of the Consumer Credit (Agreements) Regulations 1983 (Regulations) as to form, as at the date the agreement was made in order to comply with section 78?   A creditor need not, in complying with section 78, provide a document which would comply (if signed) with the requirements of the Regulations as to form, as at the date the agreement was made.   Must the copy provided under section 78 include the debtor's name and address as at the date when the agreement was made, and if so in what form? The section 78 copy must contain the name and address of the debtor as it was at the time of the execution of the agreement. But the creditor can provide the name and address from whatever source it has of those details. It does not have to take them from the executed agreement itself.     If an agreement has been varied by the creditor under a unilateral power of variation, is a copy of the executed agreement as varied, a sufficient copy for the purposes of section 78(1), or must the creditor provide a copy of the original agreement as well?   If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms.     As your agreement is post April 2007  Section 61(1)(a) and 127(3)   Consumer Credit Act 1974 would not apply.   Andy
    • well start a new thread for the court claim.   as for this one i'd await the letter of claim  
    • Useful information...   And....   https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part55
    • nice and ofcourse totally unlawful.   £349.50 is the usual sum RLP try and fleece out of people under some silly civil threats none of goes to the store it all goes in RLP's pocket for their next staff holiday paid for by mugs that fall for their twaddle ignore!!
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kregrs

Seat Alhambra - fair wear & tear?

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I have another thread relating to my car and some issues, I'm looking for some opinions on another issue.

Last week, 12/11/12, the vehicle lost all drive, diagnosed as the driveshaft (nearside) stripping it splines at gearbox end. I had the car recovered back to the sales centre I purchased the car from 2 months ago, and tried using soga to get the vehicle repaired. The vehicle is 2001 51 reg and has covered 130k miles, was bought on 12/09/12 for £2500, having covered at time of purchase 127k miles. I had initially returned the vehicle for repair under the 3 month warranty given by the sales centre, which was immediately refused due to a supposed 2k mileage limit, which is when I tried the soga route. This was countered by the sales centre as the fault fell under fair wear and tear. The sales centre agreed to send the car to a local specialist for further diagnosis, which confirmed the RAC roadside diagnosis of driveshaft stripped its splines. Whilst at the garage, there seems to have been a breakdown of communication between themselves and the sales centre, as they have gone ahead and repaired the vehicle at a cost of £435 plus vat. The sales centre are still refusing to repair under soga, fault occured within 6 months so deemed to have been present at time of purchase, but have offered to go 50/50 on the repair costs.

So who is right? Could a driveshaft failing like that be classed as fair wear and tear? There was no indication prior to the vehicle breaking down that anything was amiss.

Should I just accept the offer of part payment?

I accept the vehicles mileage is high, and that the it is 11yrs old, and I don't expect it to be 100% perfect. I have looked online and can find a few instances on forums of driveshaft issues like mine, but nothing to suggest it is a wear and tear issue. Am I being unreasonable in expecting the sales centre to repair the car under soga?

The car does have other issues which are being addressed, but this is the one that is most pressing.

So over to you, opinions please on what I can expect, am I being unreasonable, or should I just accept the part payment offer?

Thanks in advance,

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Does it say in any of the paperwork you had with the car there is 2,000 mile limit on a claim?

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Don't be fazed by the three month warranty. Don't be fazed by the 2000 mile limit. Don't be fazed by fair wear and tear.

 

You have rights under the sale of goods act and they cannot be excluded by the Seller.

 

You are entitled to have a motor car which is of satisfactory quality and will remain in that condition for a reasonable period of time. What is satisfactory depends on all the circumstances including the age of the car and the amount of money you have paid.

 

I can't imagine any court expecting you to have shelled out £2500 and then be required to pay a further 20% every two months to keep the car on the road.

 

One way of putting it would be to say – if the seller had advertised the car for £2500 and said in the advertising blurb that the lucky buyer will only have to spend a further £500 in the next two months to keep the car running, would anybody have bought it?

 

I don't think so.

 

As long as you have used the car in an ordinary moderate way then it is most unlikely that you should have to bear the liability for this problem.

 

Research thoroughly and find out how often this kind of fault occurs and in respect of cars of what kind of a and what kind of mileage. If this is a common fault for a car of this quality then you won't have much of a case. If you find that in similar circumstances this is a very rare problem then I think that you should proceed for the entire repair bill to be met by the garage.

 

There is only one slight matter that you should be aware of, and that is that a repair will probably put the car back into a condition which was better than it should be for a car of that age and that mileage.

 

It might be that a court would order that you meet a proportion of the repair cost for that reason. I think 50-50 is far too high – but I would have thought that a fair division would be that you make a 20% contribution because the repair bill is 20% of the money that you paid for the car


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Does it say in any of the paperwork you had with the car there is 2,000 mile limit on a claim?

 

Unfortunately I can't find the receipt I got with the car, although I can't remember reading anything about a mileage limit. Its not a warranty I paid for, just the usual 3 months most used car dealers give with a car.

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I hate to say it, but the Haynes Manual for my car states that the drive shafts should be replaced every 4 years. Not sure why, the originals have been on there from new until recently, but I don't know whether this is standard practice. I couldn't believe it when I read it!

 

You'd probably find it cheaper to have it done elsewhere in all fairness, Vauxhall themselves did mine and I think it was about half what your going to be charged.

 

Might be worth a thought.

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It's a shame you can't find the paperwork, that would have made life a lot easier.

 

You will have read the post above by now and as said, soga is the way to go. During the first 6 months, it is up to the seller to prove there was not inherent fault with it. For a shaft to fail like this, there must have already existed extensive wear.

 

On the engineering side. The driveshaft is made of a heavy guage tempered steel for obvious reasons. The weak point of the shaft isn't in fact the splines, but a point about 2/3 the way up the shaft from the gearbox towards the wheel and comes from the twisting motion especially when pulling away. Even dropping the clutch shouldn't damage the shaft, the wheels should spin. Splines should be of a tight enough fit that there is only a sliding motion along the splines and being permanently submerged in oil, spline wear would be very limited and the shaft easily outlive the car.

 

You say you tried SOGA, did you mention that he has to show there was no wear there at the time of sale?

 

Haynes are not a constructors manual, but an aid for non qualified motorist to help them keep down the cost of maintenance. Check out if this is the manufacturerers recommendation or a suggestion based on the experience of Haynes.

 

There is alway the chance that they have been changed but an inferior quality far east part used.

Edited by Conniff

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On another note, the car has been repaired, and we as a family could really do with having it back. The car they loaned us, a 2dr SAAB 9 3, isn't really suited to family duties, (4 kids) and is costing a fair bit to run, so can we get the car back, they've already agreed we can pay in installments, then dispute the amount etc afterwards?

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