Caravan Blackhorse - Caravan HP problems.refund issues..**WON VIA FOS**

[perplexity]

The Sale of Goods Act applies in general to any legitimate contract to sell goods and section 13 of the Act requires that the goods conform to description.

 

The comeback is of course to sue the seller, should you have to take it so far.

 

A false description could also be prosecuted as a criminal offence.

 

8-)

[perplexity]

You cannot realistically prove that he KNEW it was a 1990, although he possibly did. What you can say is that because of the model, it is misdescribed and thus you have some options to persue.

 

 

There is no need prove that the seller KNEW, in order to convict.

 

It is a strict liability offence to falsely describe goods. In order to defend himself the seller would have has to pass the test of due diligence, to show that everything reasonably possible was done to avoid a mistake.

 

This, in any case is an offence defined by (22) of Schedule 1 of the Consumer Protection from Unfair Trading Regulations 2008:

 

Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer.

8) Edited November 22, 2010 by perplexity

[perplexity]

As it has been proved he is a trader, it is covered udner SOGA, but lets wait and see what TS have to say on the matter.

 

 

Nobody has to prove that anybody is a trader to be covered by the Sale of Goods Act. The Act in general applies to any legitimate contract of sale, and to the extent that parts of the Act especially apply to a consumer, the burden of proof is upon the seller to show that the contract is not a consumer contract.

 

The Consumer Protection from Unfair Trading Regulations 2008 refer to "commercial practice" and the "average consumer", so the extent of a trader's activity would thus be material.

 

None the less,

 

It shall be the duty of every enforcement authority to enforce these Regulations.

 

8-)

 

It does make sense, none the less, to beware of the financial circumstance of the seller.

 

If you shout at a dog with a stick in its mouth, the dog may be scared into dropping the stick or bringing it back, but without the stick, all you've got is a frightened dog.

 

[perplexity]

I am not sure how CAG ever managed without your input.

 

There was a previous case of an old bloke who didn't want to pay for a caravan. In search of advice he turned up to several online forums and eventually lost the case when it went to court, nor was he the first to lose because a widespread myth about the law was believed. In his position I would rather have been alerted to the correct advice.

 

If in doubt about the law, my advice is to look it up, not to rely upon a personal opinion of any sort. The legislation is available to see, online, and speaks for itself.

 

P.S.

 

Were those who depend on others to help themselves instead, none would be any more glad of that than I. There are other things to do with the time.

 

8)

Edited November 23, 2010 by perplexity
P.S.

[perplexity]

The CPUT is not a recourse open to private consumers, it's only for a body like the OFT to take action and they won't do that for a one by one case.

 

 

Really?

 

Which is to be believed then, that or this?

 

There have already been some prosecutions under CPUT,both by the regulators and also private cases.

 

Would do no harm to contact your Trading Standards Office.

But they will only take it up after seeing that Tesco have given a final response,or shown no willingness to resolve.

 

[perplexity]

If anybody's taking bets on this, mine is that an eventual response from the OFT will advise that it is not their job to give legal advice, or words to that effect, which is of course correct.

 

In the mean time, it's a remarkable thing to volunteer to do, to cede the decision to the OFT as to whether or not it is possible to prosecute privately, while the chance to appeal was rather supposed to be

 

a useful constitutional safeguard against capricious, corrupt or biased failure or refusal of those authorities to prosecute offenders against the criminal law.

 

I quote that directly from a legal precedent, if you care to look it up.

 

Does this forum exist in order to empower the consumer, or to empower the criminal?

 

If you would but accept my suggestion to look it up if in doubt, instead of being so deliberately ignorant, you may rather have discovered that the Consumer Protection from Unfair Trading Regulations implement the EU Directive 2005/29/EC, Article 11 of which is the relevant authority, which the OFT is not.

 

According to part 1 of Article 11

 

 

Enforcement

 

1. Member States shall ensure that adequate and effective means exist to combat unfair commercial practices in order to enforce compliance with the provisions of this Directive in the interest of consumers.

 

Such means shall include legal provisions under which persons or organisations regarded under national law as having a legitimate interest in combating unfair commercial practices, including competitors, may:

 

(a) take legal action against such unfair commercial practices;

 

and/or

 

(b) bring such unfair commercial practices before an administrative authority competent either to decide on complaints or to initiate appropriate legal proceedings.

 

8)

 

My inference is thus that it is the statutory duty of every enforcement authority to enforce on behalf of a person or organisation with a legitimate interest, and in so far as the authority fails to do so the possibility exists to act against an authority in breach of the duty. It should not therefore be so much of a surprise if a private prosecution is a rare event.

 

Instead of begging a permission to be protected by the law intended to protect, a person with the wherewithal to pursue the private prosecution may be better advised to apply for Judicial Review, to give the errant authority a run for its money.

 

That's what I would do, if need be, which is not to expect to have to.

 

Edited November 25, 2010 by perplexity
spelling

[perplexity]

Which part of "(Trade Sale)" was so hard to get?

 

http://www.ukcampsite.co.uk/forsale/v/Coachman-Mirage-V.I.P/5292

 

[perplexity]

The listings on www.ukcampsite.co.uk distinguish between a (Trade Sale) and a (Private Sale); browsing around from one to another the advertisements appear to display themselves as one or the other.

 

One is therefore bewildered by the question:

 

As we bought private and based on the incorrect and misleading advert description do we have any comeback?

 

Because of what did you fear that there would be no comeback, and why, notwithstanding what was pointed out before, does a discussion of this continue?

 

If in any doubt about what would count as a consumer transaction, section 210 of the Enterprise Act serves to clarify the issue:

 

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

[perplexity]

But there is no reason why a private individual could not or would not be a trader. Sole traders exist and operate as individual personalities.

 

If a person of any sort seeks to supply, legitimately, at a price and on his own terms, it must then be construed that the buyer is a consumer, except perhaps for business to business affairs.

 

It is another matter to have "bought private" if the implication of that is that terms were negotiated on a one-off basis, between a buyer and a seller, or if it was the buyer who sought to purchase (perhaps by placing a 'wanted' ad) rather than the seller who sought to supply. When that is the story, legislation especially intended to protect consumers would not apply though it is not so clear if this would or would not be so with regard to the present circumstance, not for as long as on your own admission you "bought private".

 

8)

[perplexity]

No idea on where perplexity is coming from! If the original ad did not make clear they were a trader, and the goods they were selling were within that remit of their trade they should have declared it. We see this so many times with cars parked on verges and advertised as private sales but it's traders behind it and it's illegal. At the very least it was a mistake or misleading and the consumer should expect it to be rectified and for TS to take the case on and look into their trading. It's up to the individual what route they take to rectify it, but I know what mine would be!

 

 

I am assuming that this was the advertisement in question:

 

http://www.ukcampsite.co.uk/forsale/v/Coachman-Mirage-V.I.P/5292

 

It quotes a price and a description that corresponds to the original posting to this thread. Alongside the member's particular identity "(Trade Sale)" is also apparent.

 

Which part of "(Trade Sale)" fails to make clear they were a trader, and the goods they were selling were within that remit?

 

Maybe there is more than that elsewhere, to make a case of and if so it is of some considerable interest to see if a criminal conviction is the eventual result of the anticipated prosecution of the culprit, but I am not going to bet a mortgage on it, are you?

 

There was a case not so long ago, "L'Oreal and others -v- eBay", whereby a part of the judgement was that seven sellers of dodgy goods on eBay had all been trading as businesses but with no declaration of the fact, nor with any attempt on the part of eBay to put a stop to that, nor even so much as an admission from eBay to the effect that these were business sellers notwithstanding several hundreds of completed transactions, per member, all for similar goods.

 

Was there anything then to betray an interest in this on the part of Trading Standards, let alone the prospect of a conviction on the off chance that the OFT were to do the job they're supposed to do?

 

 

If you took the time to read through the posts instead of jumping to conclusions, the seller has committed a criminal offence by posing as a private individual when in fact they are a trader having sold at least 11 other caravans previously in less than a year. The seller posted the ad as a private individual as per one of his previous adverts. Click on his name to see what else he has sold and where he specifically maintains he is a private individual and not a trader. Apparently if the same person places the same type of commodity on sale, i.e. caravan on that website , the website automatically defaults to "trader". TS have a strong case against the individual.

 

I did that.

 

I registered with the site, clicked on the member name, discovered a total of 12 listings, all for similar items, every one of which is apparently declared as a "(Trade Sale)".

 

Do let us know how it goes should you decide to pursue a private prosecution.

 

Edited December 10, 2010 by perplexity

[perplexity]

Obviously you then need to go to Specsavers as in one of the ads he clearly states that he is a private individual selling the caravan or did you miss that bit. Also I did mentioned that the site actually defaults to trader when the same person tries to sell the same commodity in a short space of time.

He also placed other ads on other websites claiming to be a private individual. I asked him to his face whether he was a trader as per the website and he stated he was not a trader! It is a criminal offence for a trader to pose as a private individual to avoid their responsibilities.

Failing that if you put on your specs and read my posts he sold us a 1990 caravan when the caravan was advertised as a 1992 caravan and this is in addition to other false descriptions or did you miss that also?

If we are so wrong why is Trading Standards now pursuing it and looking for a conviction? It seems you seldom post helpful information as most of your posts tend to be garbled with incorrect information. Can I suggest you read up on the relevant law before putting your foot in your mouth? I did law several years ago as part of a degree but obviously I cannot recall all that much after all this however I do try and check the relevance before posting and offering advice.

 

 

I posted the link to (22) of Schedule 1 of the Consumer Protection From Unfair Trading Regulations 2008.

 

Were you aware that before I did?

 

In view of this I presume that the answer is "no":

 

As we bought private and based on the incorrect and misleading advert description do we have any comeback?

 

I am sorry now to have bothered. To Hell with you.

 

[perplexity]

"CPUTR's don't help", is that the positive comment that Trading Standards had to make?

 

Do please let us know the relevant law they intend to cite, looking for a conviction, if the CPTURs are not the correct information.

 

Too much of the story makes no sense to me. This for instance:

 

... Turns out also that he has changed the mobile phone number for contact 5 times in less than a year so obviously shady and knows that he is on dodgy ground. ...

 

 

It was not before I registered with the site in order to peruse the seller's previous listings that I realised how easy it would be for a dodgy individual with the intention of posing as "private" to register again under a different identity, to cover his tracks, on each occasion that he lists an item to sell.

 

Did those who commented about it so much as bother to study the original advertisement to see the stated terms for themselves, or would this rather betray the fact that they don't?

 

Delete your link to his website as it could harm any case made against him by either you or any authority. Keep us updated.

 

 

A little bit of common sense goes a long way.

 

If your need is to buy with no eventual worries about it, buy from a trader with an established reputation to show for himself, be willing to pay the full going rate and study the record of previous sales, to verify the facts of the matter before you buy, not after.

 

If your choice was rather to take a risk because you'd thought the seller was daft to sell at the price you've yourself to blame for that and the sundry consequence of buying from a devious idiot because the choice was made, and if you find that a judge eventually takes the same view of it, you were warned of the possibility.

 

Edited December 11, 2010 by perplexity
"an" replaces "a"

[perplexity]

"Never argue with a fool. Onlookers might not be able to tell the difference"

 

-- (Mark Twain)

 

I shall therefore continue to suggest to read the legislation, to allow the law to argue for itself.

 

8)

[perplexity]

The legislation explains what it relates to. If in any doubt about it, the recitals to the European Directives are especially helpful.

 

If you rather think that the law is trash or is difficult to understand I suggest to complain to your member of Parliament or the European Commission.

 

I post the hyperlinks to save the time of those who were not yet aware that the resource exists or where to find it. If you rather they were not so aware, I shall not apologise for that, a shame though it is, but would rather they see for themselves what the truth of it is.

 

8)

[perplexity]

Still , Perpex?

 

Give it up, no-one is interested in what you have to say, least of all the author of the thread!

 

 

That is a lie.

 

Did as suggested and got a result. Trading bargains have agreed to refund 100% of cost. Thanks to all who provided valuable comments and assisted with this outcome (especially Perplexity- u rock!!).

 

[perplexity]

In essence he has now contravened the DSR if it is proved in court he is a trader.

 

 

Nobody should have to prove that anybody is a "trader" for the Distance Selling Regulations to apply.

 

The EU Directive 99/7/EC implement the Regulations, recital (22) of which is clear enough about it:

 

(22) Whereas in the use of new technologies the consumer is not in control of the means of communication used; whereas it is therefore necessary to provide that the burden of proof may be on the supplier;

---

Part 8 of the Enterprise Act also applies, whereby it must be construed that a business includes "any undertaking in the course of which goods or services are supplied otherwise than free of charge."

 

The mistaken notion that the law would not apply to a "private" individual in the UK is largely the doing of eBay, conspiring with the OFT to deprive the consumers of the full extent of their rights, so much the better for eBay's protection racket to succeed, as if to offer a so called "protection" that the law would not, which would not be a problem apart from the ignorance.

 

L'Oreal had the right idea, to do eBay for that. Instead of fishing for the small fry, fry the big fry. The rub is then that LOreal (as with the usual variety of the victims of this deception) are that much more concerned with their own balance of payments than they are with the public good.

 

8)

 

Whether or not the Distance Selling Regulations apply should rather be a matter of where and when the contract was concluded.

 

It is far from clear though that this would apply to the condition of goods if the arrangement was to pay after the goods were inspected. For as long as the commitment to buy and sell is not complete, a contract of sale is not concluded.

 

It is also inconsistent to apply the Distance Regulations and complain that the goods were not correctly described, because of section 10(2):

 

(2) Except as otherwise provided by these Regulations, the effect of a notice of cancellation is that the contract shall be treated as if it had not been made.

---

Mind you, that would not preclude an offence of misleading consumers which could be prosecuted under the CPUTRs albeit that nothing was actually sold.

 

On the other hand, recital (10) of the EU Directive may also apply:

 

(10) ....whereas, to that end, there is therefore reason to consider that there must at least be compliance with the provisions of this Directive at the time of the first of a series of successive operations or the first of a series of separate operations over a period of time which may be considered as forming a whole, whether that operation or series of operations are the subject of a single contract or successive, separate contracts;

That exists because it is not so unusual that a contract subsequent to a previous agreement depends upon the previous agreement. To sort it out the need would be to examine the terms and condition of the original website, in detail.

 

8)

 

P.S.

 

Nothing would surprise me from Trading Standards, either way. I have seen enormously different accounts of the way the local officers deal with issues over the years. That is why Consumer Direct came about, as an attempt to unify the practice.

 

-------

Edited December 16, 2010 by perplexity
P.S.

[perplexity]

The EU Directive 99/7/EC implement the Regulations, recital (22) of which is clear enough about it:

 

That was of course the wrong way round. The UK Regulations implement the Directive, word for word for the most part.

 

 

P.S.

 

... They look at it from the point where it was initiated ....

 

 

Thinking this through, they're probably right.

 

A typical transaction is a series of agreements rather than one single contract. If all you did was agree to meet a seller in order to negotiate, that of itself is a contract; if a seller fails to turn up you could sue him for that because of the waste of time.

 

A consumer should therefore be informed of the right to cancel from the start, as soon as a binding agreement of any sort is made. A contract need not be a contract of sale, for the Distance Selling Regulations to apply, so long as it's a contract "concerning goods or services".

 

8)

Edited December 16, 2010 by perplexity
P.S.

[perplexity]

I think TS have in mind the Doorstep Selling Regulations and NOT Direct Selling Regulations

 

Seems to be clear enough and unambiguous to me:

 

As we had seen the ad at home and contacted him by telephone from our home and then made the purchase the Distance Selling Regulations kicked in, in addition to the sale of Goods Act.

[perplexity]

Enormously different accounts of advice from Trading Standards are to be found online, if you find the time to peruse the various forums by way of google, though some of the most interesting stories will have vanished. Threads eventually disappear from eBay's Community Forum, for instance.

 

I am not intending to vouch for the truth of it, mind you. Perceptions vary, as do expectations.

 

There was but one occasion, many years ago, that I complained to Trading Standards. The officer was commendably friendly and helpful but all in all it was awfully time consuming and to no apparent effect because they deal with issues by passing information on to the office local to the trader, and the office local to the trader never saw fit to get back to me to keep me informed. All an all this was so completely discouraging that I never tried again.

 

To the extent that there is a common factor I guess that this is it. On the one hand there is never so much of a shortage of complaints to be made. They turn up here every day of the week but what on the other hand becomes of this as an end result?

 

The vast majority fizzle out. The anger of the consumer eventually burns itself out while the system trundles on, that much more determined to protect itself than it ever was to protect the consumer.

 

Here, by the way is a useful update and review, helpfully provided by the BBC:

 

http://www.bbc.co.uk/news/business-11540624