Received a MCOL for a kitten I sold **SETTLED**

[busylittle1]

Ok. Hopefully he will come on today and tweek it for me.

I did offer the free pet insurance . in all the cases it was taken.. So I shouldn't say what he said. But isn't that what he's going to do HE said SHE said.

Thanks tho much appreciated.

[Jimmy Jangle]

I'll be honest, you're best off attempting it yourself and then pasting the results on here for someone more experienced to give their thoughts.

 

It also helps you understand the reasoning behind your defence - because if it did actually go to court and you have to give your side of the story, you will need to be 100% on the ball so that you're not caught off guard by anything.

 

Essentially it can boil down to the legal equivalent of your word vs theirs, but just be truthful and to the point and you'll be fine.

[busylittle1]

Ok I will try and square it up..

I have been truthful in that statement.

[busylittle1]

1. It is admitted that the Claimant's husband purchased a kitten from myself on 20 March 2013. The contract of sale was between the Claimant's husband and the Defendant, and did not involve the Claimant. The claimant had not attended the viewing of the kitten before purchase or on the day of purchase.

 

2. It is admitted that the Claimant's husband viewed the kitten on 13 March 2013 and paid a deposit. At this time the Claimant's husband made a full inspection of the kitten. The Claimant's husband Phoned on the morning of collection on the 20/03/2013 to arrange a time to collect, I advise the claimant's husband that the kitten appeared miserable. Assuming it was due to the rest of her siblings going a week before. The claimant's husband made another inspection of the kitten when he collected the kitten on 20 March 2013. I offered a refund of the deposit paid but the claimant's husband insisted on taking the kitten. He watched her eat and drink and the claimant's husband picked up the kitten and was happy with her. Throughout the time the kitten was in my control the kitten was in good health. I the Defendant did not make any representations or guarantees regarding the kitten's future health. The kitten was in full compliance with the contract of sale on 20 March 2013.

 

3. The Defendant has no knowledge of the events following sale of the kitten on the morning of 20 March and the Claimant is put to proof of the same.

 

4. It is denied that the kitten was too young to be taken from its mother. The kitten was 9 weeks old on 20 March 2013. While there is always a risk involved when one is dealing with live animals, it is common for kittens to be removed from their mother at that age.

 

5. Alternatively, the Claimant's husband voluntarily assumed the risk of removing the kitten from its mother at 9 weeks and/or is guilty of contributory negligence. When the Claimant's husband collected the kitten, he was clearly again advised that the animal to be sold was seen to be unhappy. I advised that I would rather the animal remained in my care for another few days. Notwithstanding this advice, the Claimant's husband insisted on taking the kitten home, stating that the kitten was a birthday present for his wife and he was not going to wait another week. It would not have been a problem for the myself to keep the kitten with its mother for an additional period of time.

 

6. Alternatively, the Claimant's contributory negligence affected the outcome. The Claimant states that she is very experienced with kittens. If the kitten became distressed due to being removed from its mother, then the Claimant should have returned the kitten, or made some kind of attempt to contact me I would have been happy to keep the kitten with its mother for a short additional period of time.

7. The Particulars of Claim does not state a clear cause of action. It is denied that the Defendant is liable to the Claimant, whether as set out in the Particulars of Claim or at all.

[busylittle1]

Am I right not to use the sales of goods act.... as I am not a breeder. this was a private sale.

[Jimmy Jangle]

Am I right not to use the sales of goods act.... as I am not a breeder. this was a private sale.

 

Looks good to me, if there's any site admins on with knowledge of this, can they confirm?

[citizenB]

I will ask steampowered to look in for you.

 

It might not be until later on in the day.

[steampowered]

Hi busylittle

 

The draft Defence looks good to me. I agree with everything that has been said by Jimmy.

 

The only thing I might add is further details of exactly what the Claimant's husband said, which you included in your first draft Defence. But only try and quote the exact words if you can remember the exact words - accuracy is very important in legal documents.

 

On the Sale of Goods Act point, you are correct that the implied terms of satisfactory quality and fitness for purpose only apply where goods are being sold in the course of a business. Other parts of SOGA still apply but are less relevant to your case. I do not think you should start talking about SOGA in the Defence because it was not mentioned by the Claimant in their POC. Generally speaking it is best to keep Defences short and to the point ... if you start addressing arguments which they could have made but didn't you will soon find that the Defence becomes horrendously long and complicated.

 

Minor typo in paragraph 5 - delete the word "the" before "myself".

[busylittle1]

Hi.. I missed your reply.(( steampowered)) I had already sent the second draft via email. But I assume If it's going to court I will be able to say what he said then.

I received today a form for mediation. I take it this is send automatically as It was sent the same day I emailed my defence.

Any advice or suggestions to wether to accept medication or if I refuse will this pay a part against me if it goes to court.

I'm not to brave I may faint in court.

[renegadeimp]

Mediation wont count against you. It is seperate fromt he court process. It is basically there to save the courts time. If you can sort it out through mediation, then go for it.

[steampowered]

Yes you will be able to give further details in court.

 

Mediation is useful if you think you can agree a settlement with the Claimant ... but if you are determined not to pay anything then it is pointless.

[busylittle1]

Well I willkeep you all informed.

[brokebutnotbeatn]

As the claim isn't even from the person who bought the kitten I don't see how this can proceed?

[Jimmy Jangle]

Post #16 from Steampowered:

 

"Another person can make a claim against you, yes. The default rule is that contracts can only be enforced against the person who made them (i.e. between you and the husband). But where the intent is for the contract to benefit a third party (i.e. the wife), the third party can claim. Frankly this is not a road worth going down ... if you got the claim thrown out on this basis alone the husband would simply re-issue a new claim in his own name."

[steampowered]

As the claim isn't even from the person who bought the kitten I don't see how this can proceed?

 

This used to be the position until quite recently, but there was a change in the law when the Contracts (Rights of Third Parties) Act 1999 was introduced - http://www.legislation.gov.uk/ukpga/1999/31/section/1.

 

The Act basically says that the wife can enforce the contract against the Op even though it was her husband who bought the kitten, because Op knew that the kitten was bought for the wife. Technically speaking the Particulars of Claim should have mentioned the Act to explain why the wife is able to bring the claim ... but I think a judge would let that slide in small claims.

[brokebutnotbeatn]

OK I see. Thanks for that.!

[The Mould]

Good evening gang, hope you are all in good shape

 

 

Have just seen this case and I am posting hereon simply to politely clarify a point of law as regards rights of third parties (if any) under acontract/agreement. (Section 1 of Contracts (Rights of Third Parties) Act 1999is reproduced below)

 

 

The case described here appears to me to be a straight forward private common law bilateral verbal agreement entered into by the seller of and the purchaser of the kitten in question; these are the only two parties to the same. The wife is a stranger in this matter and is not a third party to said agreement, therefore, it is settled law that she cannot sue the seller – see DUNLOP PNEUMATIC TYRE Co. V.SELFRIDGE & Co.(1915), which is a key authority in this area.

 

 

"The common law doctrine of privity of contract means that a contract cannot (as a general rule), confer rights or impose obligations arising under it on any person except the parties to it."

 

 

Only the husband (the purchaser and second party to the said agreement)has standing to sue the seller of the kitten. If the husband was to sue the seller for the loss he (his wife) claims to have suffered (the vets’ costs), then the burden would be on the husband to prove that the seller is liable for such loss and to do that he must prove misrepresentation/fraud in the inducement exercised by you in order to form and conclude the agreement on the sale of the kitten with him. Essentially the husband will be required to prove that you knew that the kitten was ill and close to death when he purchased and took legal possession of it from you. I believe that he cannot succeed with such a claim against you because the kitten must have been in good health at date of purchase, thereafter, as the legal owner of the kitten from the date of sale, he (and his wife) must accept responsibility for the well being of the kitten. Further, no reasonable minded person would purchase any kitten (or puppy or any other domestic pet) if it appeared to be poorly.

 

Contracts (Rights of Third Parties) Act 1999

 

 

1999c.31 Section 1

 

 

1 Right of third party to enforce contractual term.E+W+N.I.

 

This section has no associated Explanatory Notes

 

(1)Subject to the provisions of this Act, a person who is not a party to a contract (a “third party”) may in his own right enforcea term of the contract if—

 

(a)the contract expressly provides that he may, or

 

(b)subject to subsection (2), the term purports toconfer a benefit on him.

 

(2)Subsection (1)(b) does not apply if on a proper construction of the contract it appears that the parties did not intend theterm to be enforceable by the third party.

 

(3)The third party must be expressly identified inthe contract by name, as a member of a class or as answering a particular description but need not be in existence when the contract is entered into.

 

(4)This section does not confer a right on a thirdparty to enforce a term of a contract otherwise than subject to and in accordance with any other relevant terms of the contract.

 

(5)For the purpose of exercising his right to enforce a term of the contract, there shall be available to the third party any remedy that would have been available to him in an action for breach of contract if he had been a party to the contract (and the rules relating to damages, injunctions, specific performance and other relief shall apply accordingly).

 

(6)Where a term of a contract excludes or limits liability in relation to any matter references in this Act to the third party enforcing the term shall be construed as references to his availing himself of the exclusion or limitation.

 

(7)In this Act, in relation to a term of a contract which is enforceable by a third party—

 

· “the promisor” means the party to the contract against whom the term is enforceable by the third party, and

 

· “the promisee” means the party to the contract by whom the term is enforceable against the promisor

 

 

Kind regards

 

The Mould

Edited August 7, 2013 by citizenB
Formatted and spaced.

[hightail]

I've only just seen this thread. It appears this claim is mainly about vets fees so all paperwork from the vet should be sent to you, absolutely everything including a printout of the vet's notes showing diagnosis and treatment. That should be a start in identifying the kitten and give you a reason as to why it was pts. Really they should also get a witness statement from the vet. They are going to have to go some way to showing the kitten they took to the vet is the same one they got from you and that the dates tally with their claim. Without that it's pretty difficult to say much more so insist on seeing it.

[labrat]

and dont forget you have a right to all the above under the precourt protocals

[citizenB]

This thread is now in "General Legal Issues"

 

It is purely an administrative move.

[busylittle1]

Greeting all. Just letting you know I'm awating a court date now. I will be back with any information as I get it.

Thanks for you help.

[busylittle1]

Thank you for this information The Mould. I've no idea what's going to happen. I'm now awaiting a court day. I've had no paper work from them from the vet....or witness statement... If I don't see this before a court date and they produce it. how do I go against this.

[citizenB]

Thank you for this information The Mould. I've no idea what's going to happen. I'm now awaiting a court day. I've had no paper work from them from the vet....or witness statement... If I don't see this before a court date and they produce it. how do I go against this.

 

If you are still missing vital information at the time of a court hearing, I think you can ask the court to insist that it is provided to you.

[steampowered]

With the court date there is likely to be an order that all parties disclose documents they intend to rely on at the hearing a certain number of days before the hearing.

[hightail]

 

With the court date there is likely to be an order that all parties disclose

documents they intend to rely on at the hearing a certain number of days before

the hearing.

 

What if the plaintiff doesn't intend to rely on any paperwork from the vet? Presumably the defendant can then claim there's no proof the kitten they sold went near a vet? Vet bills may exist but the claimant does have to show somehow they relate to the kitten in question, no?