Problem with 2006 Toyota Verso semiautomatic car

[BankFodder]

As long as the dealer is established and has assets and will not suddenly disappear overnight then you will get your money back.

If you haven't done so already, you should make sure that the dealer has notice in writing that you are asserting your rights under the consumer rights act and because the defect has occurred within 30 days you want a refund plus any ancillary losses – which could include the cost of returning the car.

I have to say that the consumer rights act right to reject the vehicle is all very well we are finding a lot of difficulty actually managing to enforce this right especially with second-hand car dealers.

I'm afraid that you are another second hand vehicle purchaser who for some reason rather has fallen into exactly the same difficulty – by a car for a fairly cheap price and you bite so far away from you that that itself is a cause of problem. I find it difficult to imagine that there wasn't another suitable vehicle much closer that 195 miles away. However I realise that saying that doesn't help you – but maybe it should be a warning to others who might read this thread.

I wouldn't mince around. Don't get into any protracted conversations about getting it tested or discussing whether or not you damage the clutch. If you are prepared to take action then send the letter of claim and give 14 days. On day 15 issue the claim in the County Court. We will help you. If you are prepared to do this then don't make the threat. Don't bluff.

If this is what you are prepared to then make sure the letter of claim goes off on Monday first class. Spend the next 14 days registering on to the free County Court's money claim online website and start preparing your case. The particulars of claim will be very short and you should post them here so that we can check them before you click them off on day 15.

Don't expect this to be in instant solution. Assuming that the dealer doesn't cave in you will probably be looking at six months before the matter comes to hearing and you get a judgement in your favour. If you are lucky then maybe once the dealer receives the papers they will cave in and pay you out.

What is the name of the dealer?

[BankFodder]

I noticed that you haven't told us the name of the dealer. Are you trying to protect them?

[BankFodder]

Yes it is relevant because if the dealer realises that he is being talked about openly on social media then it will help to put pressure. It is relevant because if others who are thinking of doing business with the same company see that there is a story to know about then that may protect them. No, it doesn't apply to any second-hand car dealer but unfortunately it certainly applies to more than one would like to imagine.

Once again it is relevant because if second-hand car dealers realise that by failing to respect the consumer rights of their customers, that they may be referred to on social media, then they may prefer to take a more customer-facing approach in future.

All of those reasons, at least.

 

By not mentioning the car dealer by name, you are effectively protecting him and also you are effectively removing protection from others who might spend their money in similar circumstances and he might think twice or whom might ask better questions if they were forewarned.

Don't you wish you had been forewarned?

[BankFodder]

2 hours ago, buyer-beware said:

I tnink it’s important you get balanced advice. If you wish to reject with 30 days the ownership falls into you as the consumer to prove the fault was present at the point of sale, pre-existing and not disclosed to you. It isn’t as simple or one sided as you have been advised. The CRA is designed to protect consumers and retailers equally. If you go to court with the intent to reject you will need to produce a report confirming this. 

 

After 30 days, the ownership is reversed and the dealer will have to prove the fault was not present. 

 

You also need to consider any fault related to the age, or mileage, serviceable,  or related to wear n tear is specifically excluded. 

 

You are still entitled to one repair within 6 months but as long as it is a genuine claim. 

 

Fyi

 

http://www.lawgistics.co.uk/read-news/865#sthash.omv9rATy.E5OXlfgs.dpbs

 

Would you be kind enough to explain what you mean by ownership falling and ownership being reversed?

Also would you mind giving the authority the assertion you have made which I have picked out in purple

[BankFodder]

No I don't think you may. You decided to tell people about some aspect of the law and I think that we need to understand what you mean. For instance, what on earth do you mean by reversing ownership? Are you suggesting then that they sell the car or they transfer the title to the dealer or to some other person?

I think it's reasonable for you to explain what you mean – otherwise it's really not worth you giving any information here if it doesn't make sense

[BankFodder]

I'm afraid I am saying that I don't think you understand what you're posting here. I think that if you're going to attempt to give authoritative advice then at the very least people should have confidence that you understand what you're saying – even if they don't understand what you're saying.

I'm afraid I have both problems. I don't understand what you're saying and I don't believe you do either

[BankFodder]

44 minutes ago, buyer-beware said:

OP, you are up against the following. 

 

30 Day Right To Reject Reminder

We have had a few calls of late from dealers who are of the belief that a refund has to be given in the first 30 days if there is a fault. 

This is not necessarily the case. 

Firstly, if the customer is asking for a refund under the 30 Day Right To Reject,  the onus is on the customer to prove there is a fault and they need to prove that:
 

1.    The fault is worthy of a refund. On a used car this is only likely to be the case if there was a major fault such as the  turbo failing or the gearbox ceasing. Minor faults do not entitle the customer to a refund. 

 

2.    The fault was present at the point of sale. So, even if the turbo failed at Day 29, this doesn’t automatically mean the customer is entitled to a refund unless they can prove it was failing at the point they took delivery. 

These are relatively high hurdles for the consumer, and rightly so given the benefits of this 30 Day Rule. If you have any doubts as to whether you have to refund or offer a repair, members can call the Lawgistics Legal helpline to discuss the specific facts of your case and we will help you minimise any potential loss.  

 

13 minutes ago, buyer-beware said:

I repeat. For the reasons above, I don’t agree with your interpretation and I think it is only fair the OP sees what he’s potentially up against. He can then make an informed decision. 

 

I repeat, I chose to believe the UK’s leading Motoring Legal experts and I am entitled to give my balanced help / advice to the OP. Even if you don’t want hear it. 

I'm sorry but this is mainly wrong.

I quite agree that people are entitled to hear a balanced view – but if you are simply repeating your interpretation of somebody else's view then it is unhelpful.

If you would like to turn to the source – the statute and come back here and explain to everyone how the statute supports your position then we would like to see it. Otherwise, I'm afraid that I take the view that what you say is completely misleading.

What you are saying is wrong in a number of respects – but in particular I will say that the short-term right to reject does not depend on the seriousness of the defect. The seriousness of the defect was an issue under the old pre-2015 law. In that case, it was a matter of common law that a defect which undermine the purpose of the contract did indeed terminate the contract. A defect which did not undermine the contract was always considered to be "a breach of warranty" and could be remedied by a repair and/or damages.

The Consumer Rights Act has change that part quite radically. If this is really what the motor trade are saying then please post a link to that so we can have a look at it and also the date at which it was posted.

I can scarcely imagine that any reputable organisation would still trot out such out of date information.

Please post a link to the source of your information – but also if you want to give advice authoritatively here then please will you link to the source.

 

 

[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

[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.

 

[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.

[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.

[BankFodder]

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

[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

[BankFodder]

Yes, I think that you probably have a two pronged approach. The judge will ask what a reasonable person would expect – and if the answer is that this falls below those standards, then it becomes a defect – and even though it is a minor defect, it then allows the purchaser to assert their first six months rights under the contract. After six months, the judge will also ask whether the defect undermined the purpose of the contract and that then provides an answer as to what remedy should be awarded in respect of the breach.

In respect of the first six months defect, the burden of proof rests upon the trader to show that the defect did not exist. After six months, then the question of when the defect arose is at large – but by and large if it can be said is not a satisfactory quality then I think that any examination of when the defect occurred is pretty well irrelevant.

I think the question of when the defect occurred will tend to become important when you start to look at the limits of the period of reasonable expectation. A £3000 £4000 vehicle which fails within the first six months – or even within the first 12 months is almost certainly not matched up to reason expectations. After all, what a reasonable person is going to expect to pay £4000 for a vehicle which maybe needs £1000 or more work on it even before 12 months use?

On the other hand, if the vehicle has lasted three or four years without a problem and suddenly this gearbox fault occurs then I'm sure that a lot of discussion will be focused on what is the reason a life expectancy of the vehicle of that age, price, description – and all the other circumstances – as required by the Act.

[BankFodder]

You have received your advice here and you now see the kind of dealer you are involved with. Have you send them a letter of claim? I've rather lost track. If you have sent a letter of claim already then simply issue the papers. If you haven't sent a letter of claim then do so and then issue the papers. I don't think you have any choice.

Keep the insurance in place to avoid any complications of the vehicle becoming damaged and then the dealer denying responsibility et cetera. Keep a careful note of all associated expenses

[BankFodder]

In fact going back, I noticed that I suggested that you send a letter of claim on 6 April. I don't believe you have done it. Had you done that then you would be in a position to issue the court papers immediately. Instead, you now have to wait a further 14 days. What a shame.

Sending a letter of claim would not have committed you to anything but it least it would have gotten that necessary pre-action protocol stepped out of the way. You're falling into the trap of getting into protracted exchanges and the only person who benefits is the dealer.

[BankFodder]

It means letter before action which is basically the same as a letter of claim or letter before claim.

I suggested on the 6th of April you should send them one