Problem with 2006 Toyota Verso semiautomatic car

[king12345]

I've looked and looked, but i couldn't find the bit that says that the onus is on the buyer to prove the fault was present at point of purchase in the CRA 2015.

Perhaps you want to give us the exact section and point of the CRA 2015 so we can verify ourselves. 

 

My view is that self confident car dealers and their "legal" departments are deliberately misusing the following words: "the onus is on the buyer to prove the goods are faulty"

Well, of course one must be able to say what's wrong with something. 

 

They're then adding to this statement and including some wrong statements which are not in the CRA 2015 as long as i can see.

A faulty gearbox is faulty even if the fault is intermittent.

As long as the fault is there within 30 days the buyer can exercise the right to reject.

The seller can then try to prove that the fault was not present at point of sale hence, the buyer damaged it.

 

Here is the link to the official legislation,  please point us in the right (or wrong) direction. 

Also, there's no shame in saying "i made a mistake, i was wrong " especially online where nobody knows who you are.

 

http://www.legislation.gov.uk/ukpga/2015/15/contents/enacted

 

[buyer-beware]

I repeat again. I don’t agree with your interpretation and I think it’s important the OP has balanced advice. 

 

I will suggest again that you take up your grief with Lawgistics.

They are the professionals and they fully understand how the CRA should be perceived and how works in reality.

 

When, you choose to go to war it’s best to know your enemy.   

 

 

 

 

 

[ReasonableRon]

The problem with the CRA, as with many pieces of UK legislation, is the confusing manner in which it is written. 

However, it is there.

 

It is common knowledge that for the first 6 months there is a reversed burden of proof in which it is for the supplier to prove that the goods were not faulty at the point of sale. 

 

This is set out in s19(14) and s19(15) of the Act, however s19(14) sets out that this burden of proof only applies to the right to a repair or replacement or to the right to a price reduction/final right to reject. 

 

The wording of s19(14) makes it quite clear by omission of reference to subsection (3)(a) that it does NOT apply to the short term right to reject, meaning that the burden of proof remains with the consumer.

 

I note that there seems to be a rather entrenched position being taken by some who refuse to acknowledge this fact, but the law is clear (albeit rather clumsily written) and the advice to the Op from the Consumer Helpline is indeed correct.

 

 

[buyer-beware]

There you go. It would be gracious if those who preached the wrong interpretation actually acknowledged the facts, amended their stance and started to give balanced, unbiased advice. 

[Gick]

Except that unless ReasonableRon is a qualified lawyer, solicitor or barrister, his is just another opinion.

He is omitting to acknowledge that the 30 day right to reject is different to the 'reverse onus' that he mentions.

What is 'it is common knowledge?'

 

Likewise you consistently fail to add a citation (King12345 has pointed to the law, but you fail to follow through) which has been several times asked of you.

[ReasonableRon]

Wow.  I can't quite believe that me referring to what the law actually says is being stated as 'just another opinion'.

 

This refusal to accept reality because it doesn't fit the narrative appears to be clouding the otherwise generally well-meaning advice overall, but does not do this forum any favours overall in terms of the quality of responses, particularly when this advice comes from members who by virtue of their post count are perhaps assumed to know their facts from their conspiracy theories? 

 

Maybe reference to the narrative and table on pages 39 & 40 of this Government issued document may assist the non-believers?  If the narrative doesn't make the matter clear then the table on page 40 must surely do so?

 

 

 

 

[buyer-beware]

People used to believe the earth is flat.... and I am sure there are still a few people that still do......

 

 

[ReasonableRon]

Maybe so, but you generally don't find those people advising others on matters relating to the environment......

 

Seriously though,

this is not the first time that this issue has cropped up and I think that it boils down to a fundamental misconception that the CRA 2015 presents some sort of 'silver bullet' that will magically solve all faulty goods issues. 

It will not. 

 

I have even seen people refer to this Act as if it is a suitable substitute for a guarantee on the goods "because if it goes wrong you will be covered under the CRA". 

 

The CRA is there to cover the quality of goods as supplied at the point of sale/supply. 

 

Yes of course there is a durability aspect to this as well but when it comes down to goods such as second hand cars where if a component (that was working when sold) fails after the sale but as part of the normal deterioration of the vehicle then this generally would not be covered. 

 

In other words,

if a clutch is expected to last for 80,000 miles and you bought a car at 78,000 last month and the clutch has now failed 2,000 miles later then the CRA will not automatically cover you, because the vehicle is only displaying reasonable wear & tear. 

 

The Act tries to manage levels of expectation by defining satisfactory quality as what a 'reasonable person' would expect, and most reasonable people would not expect goods that are subject to wear and tear to last beyond their typical design life. 

 

I know that this is contrary to views above expressed many times that any fault that occurs is covered under the Act but this is simply not true.

 

The CRA 2015 was brought in to bring together the various existing supply of goods legislation into one place and to set out specific remedies and timescales where previously there was not definitive guidance (hence confusion prevailed). 

 

The short-term right to reject is actually nothing new; in fact under previous legislation was in theory available for much longer than 30 days. 

 

What the CRA actually introduced is a right for the supplier to repair or replace (and therefore not have to accept the rejection) if the fault becomes apparent after 30 days before the consumer could insist on outright rejection.  In some ways that is actually better for businesses.

 

All of the above assumes that the goods are proven to have been faulty at the point of sale. 

The burden of such proof always rests with the consumer except where certain remedies are sought in the first 6 months, where the goods are assumed to have been faulty from the beginning and it is for the supplier to prove otherwise (which can often easily be done). 

 

This reversed burden of proof is nothing new as it was originally introduced as part of the Sale & Supply of Goods to Consumers Regulations in 2002.

 

Don't get me wrong,

the CRA is an effective piece of legislation generally and it has certainly focused and sharpened the minds of traders to ensure that problems are resolved correctly,

 

but there needs to be a sense of balance in the advice given to consumers before someone finds themselves at the extensive end of self initiated litigation that was doomed to fail from the outset.

[buyer-beware]

I think there should be an immediate acknowledgement by the team that misinformation has continually been preached as gospel about the 30 day right to reject rule.

 

Get it out in the open, put it to bed and make a fresh start giving balanced advice. 

 

[Verso owner]

@buyer-beware

Yes apart from the gearbox issue the car seems to be in excellent condition.

It's just that having now become aware of the history of this particular Toyota model with the semiautomatic gearbox I would not be confident to drive it as it would always be in the back of my mind that the same problem could arise at any moment. A bit daunting when doing 70mph on the motorway!

 

There is only a one year warranty on the new parts fitted by the official Toyota garage and I have read of instances where people have had the necessary work done (at about £2K), only for the same problem to arise again!

 

It is indeed possible that the dealer did check the car before selling it on and did not pick up the problem.

We certainly didn't during the short test run.

However that does not prevent us rejecting the car within the 30 days (remembering that the fault appeared after only about 6 hours of driving in total!).

 

[Verso owner]

Just a quick update as to where we are at (if there is anyone out there who is still interested of course!).

 

The car has been tested by the Toyota garage and their computer has found an error code which indicates that there is a fault with the clutch actuator system.

 

Unfortunately it is not possible for the software to say when the fault occurred but both the Toyota service guys and the independent automotive engineer have stated that it is highly improbable that the fault occurred within the first 6 hours we had the car.

The cost to repair would be around £2400.

 

The dealer has agreed to refund us the money we paid for the car provided we supply a copy of the independent engineer's written report, which is not unreasonable of course. We should get that report middle of next week.

 

In some ways it might have been better that the whole business went to court as we would almost certainly have won the case and been able to claim back the huge amount of additional expense that this matter has caused us. (Must be of the order of £600+ by now).

[BankFodder]

Thanks for updating us. Of course you could claim those other losses – but maybe it's better not to rock the boat.

Anyway, well done. It shows that it is worth standing your ground

[Verso owner]

Yes, I would feel a bit uneasy about "rocking the boat" as you say, although it is quite a bitter pill to swallow.

I guess we have learnt a lot from this experience!

 

What I have done is to include a list of all the expenses we have incurred in my latest letter to the dealer so they are aware, but I haven't specifically said that we might try to reclaim these.

 

It could deter them from getting awkward at the last minute and opting for the small claims court option.

[BankFodder]

Personally I would suggest that we might examine the possibility of you getting your refund and then proceeding arteries to get the outstanding money.

There is a principle in law that payment of a lesser sum cannot be satisfaction for a greater debt. There are exceptions to this rule – but the general rule is a very well established principle.

I think it might be better not saying anything to the dealer about any outstanding sums - although it may be rather late because I gather that you may already have sent a letter to the dealer.

Get your refund and then come back here.

 

[Verso owner]

OK thanks.

[BankFodder]

On 12/04/2019 at 07:33, buyer-beware said:

Quote

 

I am glad you are seeing sense. If the report shows conclusively the fault was present at the point of sale then the retailer hasn’t a leg to stand on. 

 

 

 

 

 

Also, without wishing too much to wake up this discussion once again, the above quote is quite wrong. It would be correct if it said:-

 

Quote

 If the report shows conclusively the fault was not present at the point of sale then you don't have a leg to stand on. 

 

 

 

 

So to summarise, the burden of proof is on the dealer to show that the defect was not there – certainly within the first six months. Furthermore, if there is a defect, than the quality/severity of the defect is not relevant. It entitles you to your right to reject within 30 days or your right to reject after a failed repair during six months.

Only after six months do the normal common law rules of contract come in play. But even then, it is not a question of proving or disproving a defect. It is simply a question of showing that you have not had satisfactory service/quality from the item for a reasonably expected period of time.

I would certainly agree that these are very heavy burdens/responsibilities for any dealer. But this is what consumer-facing legislation is all about. It's all about consumer protection and the reason for it is that if you place the burden upon the dealer then it creates a huge incentive upon the dealer to be careful or if the dealer has to source his goods from a manufacturer then it puts pressure on the dealer to put pressure on the manufacturer to make sure that goods are of a sufficient quality.

As far as I'm concerned, this is good social planning – and we all benefit – including the car dealer when that car dealer goes off to buy other things such as computers, telephones, music systems, televisions, and even their own vehicle.

It encourages quality control at source – and this is highly desirable and is only achievable by having this kind of consumer legislation.

[king12345]

Well said.

I couldn't have found better word to describe "The bigger picture"

[Chuffnut]

On 19/04/2019 at 17:08, BankFodder said:

 

Also, without wishing too much to wake up this discussion once again, the above quote is quite wrong. It would be correct if it said:-

 

 

 

So to summarise, the burden of proof is on the dealer to show that the defect was not there – certainly within the first six months. Furthermore, if there is a defect, than the quality/severity of the defect is not relevant. It entitles you to your right to reject within 30 days or your right to reject after a failed repair during six months.

Only after six months do the normal common law rules of contract come in play. But even then, it is not a question of proving or disproving a defect. It is simply a question of showing that you have not had satisfactory service/quality from the item for a reasonably expected period of time.

I would certainly agree that these are very heavy burdens/responsibilities for any dealer. But this is what consumer-facing legislation is all about. It's all about consumer protection and the reason for it is that if you place the burden upon the dealer then it creates a huge incentive upon the dealer to be careful or if the dealer has to source his goods from a manufacturer then it puts pressure on the dealer to put pressure on the manufacturer to make sure that goods are of a sufficient quality.

As far as I'm concerned, this is good social planning – and we all benefit – including the car dealer when that car dealer goes off to buy other things such as computers, telephones, music systems, televisions, and even their own vehicle.

It encourages quality control at source – and this is highly desirable and is only achievable by having this kind of consumer legislation.

 

The part that I have highlighted in bold, I think it's not quite right.

 

I don't believe that if a consumer took a dealer to court, with the defect being a blown bulb, 25 days after taking ownership, they would win. Or else, people could just decide they didn't like the car anymore, put a knackered bulb in the car and reject it.

 

The severity of the defect does matter.

 

It needs to render the car not fit for purpose, not as described, or not of satisfactory quality. That's what defines whether a defect is really a defect or  not. Small but subtle point that needs to be clear to people reading the forum I think. Otherwise, people may think they can take a car back for any old reason.

 

 

[BankFodder]

On one hand what you say sounds quite logical. However, you are inventing words into the statute.

Have you looked at the statute? Have you seen anything in the statute which supports what you say?

What you are saying is that the effect of the statue is vulnerable to manipulation by a dishonest customer. I think you're right.

[Verso owner]

What Chuffnut is saying seems reasonable.

I cannot imagine any judge upholding a consumer's right to return a car because of a minor fault.

 

If that had been the case with me I would have happily accepted a repair by the dealer as the most of the car is in A1 condition but a major fault (subsequently discovered to be inherent in the design of the semiautomatic transmission system) in the auto gearbox is quite a different ball game!

[BankFodder]

On the strict wording of the statute, I don't think that a judge would have any choice.

[Chuffnut]

14 hours ago, BankFodder said:

On one hand what you say sounds quite logical. However, you are inventing words into the statute.

Have you looked at the statute? Have you seen anything in the statute which supports what you say?

What you are saying is that the effect of the statue is vulnerable to manipulation by a dishonest customer. I think you're right.

Erm, I don't think I'm inventing words into the statute, in the CRA 2015 under chapter 2, section 9,10 and 11 it specifically mentions the terms "fit for purpose, as described and satisfactory quality" albeit I am shortening the exact wording for the purpose of writing a post in here.

 

I think what you are saying is correct and I haven't conveyed myself properly. You are correct that there is no severity when it comes to a defect, it's either a defect or it isn't.

 

What I was trying to point out, for the good of people coming here and seeking advice, is that it isn't as simple as demanding a repair or refund under the CRA for any old thing.

 

A defect has to first be confirmed as a defect, the only person who can do this with authority is of course a judge but I think people need to be aware when reading these kind of threads is that in all probability, a blown light bulb on a used vehicle isn't going to be classed as a defect in the first place.  A faulty windscreen wash motor on a 15 year old car, with 100,000 miles on, 4 months into ownership, isn't going to be a defect. A failed gearbox on a 4 year old vehicle with 50,000 miles on, will be.

 

Unless of course you consider that a 15 year old vehicle with 100,000 miles on, bought for £1000 has the same consideration under the CRA as a 2 year old vehicle with 20,000 miles on, bought for £15,000. If you do believe that, well, I'll wrap up and leave it there. I will just say though that the terms "fit for purpose, of satisfactory quality and as described" are written into the CRA for (among other things) the purposes of defining the difference between an old banger and nearly new car. The only person who can decide what constitutes a defect is the judge, on the day. 

 

 

Edited April 22, 2019 by Chuffnut

[BankFodder]

Thank you. This is very helpful indeed. I've gone back and had another look at the statute and actually I find to my amazement that the word "defect" doesn't particularly appear in the statute in the way that I thought it did. I'm really quite embarrassed. I now realise that I might have taken the word from a summary on the Which? website - and certainly the notion of a "defect" seems to be generally used around the Internet when describing the short-term right to reject.

So having looked at it more carefully – which I probably should have done in the first place – I can see pretty well what you have said above that the short-term right to reject comes into play if the goods are not "satisfactory quality" in the first 30 days. However, section 9 of the Consumer Rights Act does make it clear that even a minor defect can produce a situation which is not of satisfactory quality. So it certainly is possible that a blown car bulb, for instance, – which is definitely a minor defect – could be quite sufficient to give rise to a right to reject the vehicle.

But it all depends whether one might say that the blown bulb means that the car is not of "satisfactory quality".

From there, we have to find out what "satisfactory quality" is. Satisfactory quality is the standard that a reasonable person would expect of the goods – taking into consideration the nature of the goods, the description, the price et cetera.

This really does mean then that the effect of "a defect" is subject to interpretation by a reasonable person.

So I think that you are completely right and I think I was wrong to say that the idea of a defect is so fixed.

I would certainly have thought that a reasonable person might not expect that a blown bulb in the first 30 days of ownership means that an entire vehicle is unsatisfactory. In fact that seems to me to be very unreasonable.

I must say I'm very pleased to have discovered this and I'm only sorry that I hadn't read it more closely earlier on but it certainly makes the whole statute much more palatable.

However, there is the second debate that has been going on on this forum and that is who has the burden of proof in respect to establishing that there is a defect. Is it the customer who has to prove that there was a defect? Or is it the seller who has to prove that there was no defect.

In respect of this question, I'm still completely convinced that in the first six months there is an assumption that any defect which occurs was present at the time of sale. On that basis then one has to decide whether that defect means that the goods were not of satisfactory quality. If the goods won't of satisfactory quality then it is clear that the purchaser has a right to reject the goods (after repair in the first six months).

However, once you decide that the goods were unsatisfactory, it is certainly clear that even if that defect did not undermine the purpose of the contract, it still entitles you to a right to reject – so there is a kind of halfway position on the effect of a "defect".

For instance, if some superexpensive sealed beam headlight on a new car or even a high-value second-hand car failed within the first 30 days it might well be that a court would accept that the vehicle was not of satisfactory quality. Apart from the value of replacing the headlight unit, it would also mean that the car was unlawful to drive. If you look at the effect of the defect from that point of view, then it might well be possible to persuade a court that the vehicle was not satisfactory.

As user Chuffnut has pointed out, it eventually becomes a matter for a decision by a judge

[Chuffnut]

Thank you for your candid post and it just shows that we all learn, every day. 

 

The bottom line is exactly as you have stated, it's down to the judge, on the day because "a reasonable person" can only be the person that makes the decision and that, ultimately, is the judge. However, I think most people could come to the conclusion that it's unreasonable to expect certain faults to render a car of unsatisfactory quality, logic and common sense would tell most people to not take a supplier to court over something so trivial as a blown light bulb on a used car.

 

You have also hit the nail on the head that a new car, or expensive used car, with expensive components (£200k 1 year old Ferrari's for example) would be of unsatisfactory quality on some faults that a 10 year old, £2000 car would not. Hence the statement in the statue under "goods of satisfactory quality" that refers to price paid. The price paid (and as such, age and mileage of vehicle) will reflect a judges decision on whether a fault, is actually really a fault, or just something to be expected of the nature of the goods.

 

With regards to the burden of proof, Reasonable Ron posted somewhere recently that the burden of proof always existed, it was present in the outgoing SOGA. If a customer wanted to return something, they had to prove the goods were faulty. This obviously protected the retailer from people buying something, making use of it, then returning it for no good reason. It also protected the consumer from goods being defective and the retailer washing his hands of the situation.

 

The reverse burden of proof exists in the CRA that the retailer has to prove the goods did conform to the contract, on the day of purchase. As cited in section 19, subsection 14 and 15 which states;

 

For the purposes of subsections (3)(b) and (c) and (4), goods which do not conform to the contract at any time within the period of six months beginning with the day on which the goods were delivered to the consumer must be taken not to have conformed to it on that day.

(15)Subsection (14) does not apply if—

(a)it is established that the goods did conform to the contract on that day, or

(b)its application is incompatible with the nature of the goods or with how they fail to conform to the contract.

 

There is a nuance to the 30 day short term right to reject. As it is such a powerful ally to the consumer, the reverse burden of proof does not exist under the short term right to reject. Should a consumer wish to reject the goods for a full refund they must prove the fault existed at the point the contract was made. This is to ensure fair play for the retailer so that the consumer could not just reject say a car, for a full refund, just because a light bulb blew. However if a gearbox went pop within 30 days it would be safe to say the fault existed at the time the contract was made, gearboxes rarely just let go.

 

So to summarise, the burden of proof rests with the consumer, it always has I believe. There is a reverse burden of proof in the event of a repair/price reduction where the onus is on the retailer, which exists for 6 months, as clarified in the statute above. The burden of proof then again rests with the consumer thereafter the 6 months, up to 6 years I believe.

 

Again, all of this is subject to ascertaining if the fault is actually a fault. Consumers cannot reject a vehicle for any old reason, or, more specifically, they can try but if it goes before a judge, it seems unlikely that the judge would consider a trivial matter such as a lightbulb popping (or indeed a tyre puncturing, a wiper blade smearing, a small thimble full of oil leaking every month) on a car of a certain age, mileage and price point, as grounds for rejection.

[Verso owner]

Chuffnut - what do you think a judge would make of my issue then, based on your foregoing discussions about vehicle age/mileage/cost? 13 year old Toyota car (06 reg), low mileage (48K), one owner, FSH,  apparently in excellent condition, cost = £4K. Faulty auto gearbox - a fault which showed up after about 6 hours of driving. Would a "reasonable person" think that wasn't satisfactory quality?