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2ltr16valve

Claim received - Sold used engine untested. Private sale

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Hi all,

 

I am hoping this wonderful forum can help out here, my nephew has received a county court claim for a used engine he sold in Feb 2018. This engine was picked up by the claimant, untested and used.

The claimant is alledging that the engine is not as described and as such wants a refund and to keep the engine, or my nephew to pay for removal and return of the engine.

 

my thoughts are 'buyer beware, private sale' the claimant has no claim but I am unsure. I have uploaded a pdf of the letter he received before the claim which is supposedly a LBA

 

I have all the paperwork here to help him but am unsure where to start.

 

Thank you all in advance.

LBA bribe letter EDITED.pdf

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You need to give us more detail – the whole story.

What exactly is it? How is it advertised and what that the advertisement say? How much? How long ago? What is the problem? Has there been any correspondence? When was the problem first notified? Try to set it all out so that we don't have to ask you any more questions.


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22 minutes ago, BankFodder said:

You need to give us more detail – the whole story.

What exactly is it? How is it advertised and what that the advertisement say? How much? How long ago? What is the problem? Has there been any correspondence? When was the problem first notified? Try to set it all out so that we don't have to ask you any more questions.

 

 

Thank you for your reply. The advert is attached below.

 

The claimant contacted the defendant by facebook market place, they spoke via facebook messenger and agreed a price after discussing the engine (I can upload these but will take time as I have to edit multiple pages)

The Claimant travelled to the defendants location, inspected and paid for the engine. The engine in question is out of a vehicle that is at best 20 years old (no longer made).

The first my nephew heard of the issue was the LBA received, which was not replied to.

 

The claim info is also attached. The claim amount is for £870.

This comprises of

£450 for the engine.

£360 for fitting.

£60 claim fee

 

Need to respind by 4th June.

 

Thank you agian.

 

 

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Thank you, but would you mind combining the files into single documents and in the correct order so it is easy for us to have a look.


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11 minutes ago, BankFodder said:

Thank you, but would you mind combining the files into single documents and in the correct order so it is easy for us to have a look.

 

 

I think this should work ?

Claim_merged.pdf

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Thank you.

The principle of "buyer beware" is much misunderstood and in fact doesn't refer to the quality of goods at all, it refers simply to ownership. In other words if you purchase an item from somebody who turns out not to be the owner – for instance the item is stolen – then even though you are an innocent purchaser, the most likely result will be that you will lose the item and you will be out of pocket unless you can trace the seller and successfully sue them. It's a very tough rule.

Just because your nephew is a private seller doesn't mean that he is absolved from all responsibility for the item that he sells. If he had made no claims whatsoever for the engine simply saying "engine for sale" then the purchaser would have bought it with all of its faults and would not be able to complain.

However your nephew has made a specific representations about the engine and so the purchaser is entitled to rely on those representations and if those representations happen to be incorrect (I'm not saying fraudulently made or anything), then the chances are that he hasn't got what he expected to get for his money and he therefore has a legitimate claim against the seller. Because it is not a trade sale, there are no implied terms – or very few implied terms as to the quality of the item and the length of time during which it will remain in that (satisfactory) condition.

Looking at the advertisement I gather that your nephew bought the engine to use and when he bought it he was led to believe that it had new gaskets et cetera. I gather from the advertisement that he didn't have first hand knowledge of that. This may simply be what he had been led to believe when he bought the engine. However, he used those features – new gaskets et cetera – as a selling point for the engine and I'm afraid that I think that he is bound by those claims.

If in fact your nephew was ripped off by somebody else who falsely made those claims then it would be for your nephew to sue that seller – but of course now we are getting complicated.

The only troubling thing is that the engine was sold early in 2018 and the claim is only raising its head now – but on the other hand if this was part of a car rebuild, then it might well be reasonable for this to take a long time. I don't really see that that is a.

I see that the purchaser originally tried to negotiate by offering to accept £400. You haven't given us any other correspondence but I suppose that your nephew refused it. It's up to you to decide whether or not that was good value. But I'm afraid that on the basis that what the purchaser is saying is true – that it does have all those faults that he describes – then your nephew probably should have negotiated on the £400 and maybe have reduced to £300. As it is now, even if he wants to accept the £400 I suppose he will have to pay the court fees well.

I don't know how far away the claimant is, but his problem is certainly that he's going to have to travel to your local court and that might be an inconvenience for him – but on the other hand if he wins – and I think that there is a high probability, then he will also be able to add the hearing fee and also the reasonable costs of travel.

I think that your nephew had better start considering some form of damage control


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Posted (edited)
16 minutes ago, BankFodder said:

Thank you.

The principle of "buyer beware" is much misunderstood and in fact doesn't refer to the quality of goods at all, it refers simply to ownership. In other words if you purchase an item from somebody who turns out not to be the owner – for instance the item is stolen – then even though you are an innocent purchaser, the most likely result will be that you will lose the item and you will be out of pocket unless you can trace the seller and successfully sue them. It's a very tough rule.

Just because your nephew is a private seller doesn't mean that he is absolved from all responsibility for the item that he sells. If he had made no claims whatsoever for the engine simply saying "engine for sale" then the purchaser would have bought it with all of its faults and would not be able to complain.

However your nephew has made a specific representations about the engine and so the purchaser is entitled to rely on those representations and if those representations happen to be incorrect (I'm not saying fraudulently made or anything), then the chances are that he hasn't got what he expected to get for his money and he therefore has a legitimate claim against the seller. Because it is not a trade sale, there are no implied terms – or very few implied terms as to the quality of the item and the length of time during which it will remain in that (satisfactory) condition.

Looking at the advertisement I gather that your nephew bought the engine to use and when he bought it he was led to believe that it had new gaskets et cetera. I gather from the advertisement that he didn't have first hand knowledge of that. This may simply be what he had been led to believe when he bought the engine. However, he used those features – new gaskets et cetera – as a selling point for the engine and I'm afraid that I think that he is bound by those claims.

If in fact your nephew was ripped off by somebody else who falsely made those claims then it would be for your nephew to sue that seller – but of course now we are getting complicated.

The only troubling thing is that the engine was sold early in 2018 and the claim is only raising its head now – but on the other hand if this was part of a car rebuild, then it might well be reasonable for this to take a long time. I don't really see that that is a.

I see that the purchaser originally tried to negotiate by offering to accept £400. You haven't given us any other correspondence but I suppose that your nephew refused it. It's up to you to decide whether or not that was good value. But I'm afraid that on the basis that what the purchaser is saying is true – that it does have all those faults that he describes – then your nephew probably should have negotiated on the £400 and maybe have reduced to £300. As it is now, even if he wants to accept the £400 I suppose he will have to pay the court fees well.

I don't know how far away the claimant is, but his problem is certainly that he's going to have to travel to your local court and that might be an inconvenience for him – but on the other hand if he wins – and I think that there is a high probability, then he will also be able to add the hearing fee and also the reasonable costs of travel.

I think that your nephew had better start considering some form of damage control

 

Hi. Thank you again for your reply. 

 

That at is correct my nephew was told that the engine had had the basic gaskets replaced but the engine was unused by my nephew and sat in a garage for around 6 months with no oil in. 

 

The claimant sent the lba which is IMO tantamount to blackmail, providing no proof or evidence the engine is in fact faulty. Or even the engine he bought ?  In the time that has elapsed he ‘could’ have had his engine removed and be trying to claim - using that one, who knows..... 

 

 

Also, I didn’t think they could claim for fitting costs as that’s their choice and they chose to fit it without due diligence in making sure it was 100% okay - after all it’s a 20 year old engine minimum.  

 

Edited by 2ltr16valve

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Also to add. Looking through the ‘messenger chat’ pages - the claimant sent a £104 payment through PayPal goods and services - why would they not claim through that before court, as I believe you have to exhaust all options before taking court action. 

 

I could be completely wrong as I’m rather rusty 

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Yes, sorry I didn't address the issue of the fitting costs.

I think that if you sell an engine that it is reasonable to expect that it is going to be fitted into a chassis. If there is a breach of contract then you are certainly entitled to recover the money you have paid out for the item or the repairs to it – and any associated costs reasonably incurred. I would say that fitting an engine is something that is completely foreseeable.

What you are saying is interesting that maybe a prudent person would have checked the engine out first before fitting it – but on the other hand if the purchaser/claimant was relying on your advertisement – which of course it is reasonable to do, then it seems to me that it wasn't unreasonable to go straight ahead and fit it.

If you wanted to argue this point in court then you might get a reduction on the fitting costs but I doubt whether the the whole fitting costs would be forgiven by the judge. At the end of the day I think you would lose on the substantive issue of whether there was a breach of contract and the whole dispute then would turn around the question as to whether the claim would be awarded in full or whether only a portion of the fitting cost would be recoverable.

You say that the claimant didn't provide any evidence of the faults. However I notice that he has somewhere said that he has a report. Did you ask for evidence?

I completely agree that in the elapsed time, the engine could have been used, damaged, removed and then the claimant decides to begin a fraudulent claim. Is that likely? Is that really what you want to tell the court? Do you have evidence of this? I would say that this argument is a bit of a non-runner – a bit like your engine I'm afraid.

It seems to me that your nephew has been ripped off and I'm afraid he should have been more careful when buying the engine – and then should have tested it immediately – and I'm afraid also would have been better advised to negotiate over the settlement before any claim was issued.

He would have been well advised to join this forum and ask us for advice before he started tackling this issue on his own.


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I don't think there is a requirement to exhaust all possibilities before court action. Of course it is most often a sensible thing to do and I have to say that the purchaser has acted in a rather brisk and assertive way. From my own point of view, not enough people get businesslike about the claim so hope you won't mind if I tip my hat off to him. Less people would suffer problems if they moved quickly to take action.

As far as I can see – and once again I don't have all the correspondence – but he wrote a letter and laid out the situation in quite a bit of detail and then proposed a solution. As far as I know – without having seen anything – your nephew didn't even begin to enter into a discussion about it but simply refused or didn't reply.


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3 minutes ago, BankFodder said:

I don't think there is a requirement to exhaust all possibilities before court action. Of course it is most often a sensible thing to do and I have to say that the purchaser has acted in a rather brisk and assertive way. From my own point of view, not enough people get businesslike about the claim so hope you won't mind if I tip my hat off to him. Less people would suffer problems if they move quickly to take action.

As far as I can see – and once again I don't have all the correspondence – but he wrote a letter and laid out the situation in quite a bit of detail and then proposed a solution. As far as I know – without having seen anything – your nephew didn't even begin to enter into a discussion about it but simply refused or didn't reply.

 

Thank you again for the reply

 

the reason the letter was no replied is it only contained a email address which would provide no proof of receipt. No address no contact details. 

The letter also reads as unreasonable, he wants a refund and to keep the engine. Or removal costs, a refund and collection of the Engine If it’s wanted back.

 

the alleged report he has is not impartial either, it’s stated it is from the same place that fitted the engine so would have a financial gain in finding ‘fault’. Some of the things alleged are not possible, e.g. metal in the oil. - the engine was drained and had no oil or other fluids. 

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Then these are all arguments which will be useful if you decide to resist the claim. In terms of the report, it is open to you to get your own independent expert to examine the engine and to produce your own report. If your own report says something completely different then maybe you have a basis for defending. If your own independent report concurs with the claimants one then you know that you are going to have to put your hands up.

Don't forget, it's not me that you need to convince. It's the judge. I simply given you my opinion of what might happen.

As you fully realise, it's up to you as to whether or not to take the risk and to attempt to defend the claim with the possibility of losing all of the money, plus interest, plus costs, plus reasonable costs of travel as well as being left with an engine which you are going to have to dispose of or sell for scrap.

Personally I would be contacting him and proposing a settlement and frankly if you can manage to pay him £400 plus his court fee – or maybe if you are canny, get away with just the £400 then I think that you are buying yourself a peaceful life by getting rid of the risk and the hassle of it going on and on and then eventually losing.

If you are going to challenge it in court then I think you are definitely going to have to commission an independent report. I suppose that that itself will be £100 or £150. As far as I can see, you have been charged anything at all for his report – even though you say it is bias.

I don't think there's much else I can say


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12 minutes ago, BankFodder said:

Then these are all arguments which will be useful if you decide to resist the claim. In terms of the report, it is open to you to get your own independent expert to examine the engine and to produce your own report. If your own report says something completely different then maybe you have a basis for defending. If your own independent report concurs with the claimants one then you know that you are going to have to put your hands up.

Don't forget, it's not me that you need to convince. It's the judge. I simply given you my opinion of what might happen.

As you fully realise, it's up to you as to whether or not to take the risk and to attempt to defend the claim with the possibility of losing all of the money, plus interest, plus costs, plus reasonable costs of travel as well as being left with an engine which you are going to have to dispose of or sell for scrap.

Personally I would be contacting him and proposing a settlement and frankly if you can manage to pay him £400 plus his court fee – or maybe if you are canny, get away with just the £400 then I think that you are buying yourself a peaceful life by getting rid of the risk and the hassle of it going on and on and then eventually losing.

If you are going to challenge it in court then I think you are definitely going to have to commission an independent report. I suppose that that itself will be £100 or £150. As far as I can see, you have been charged anything at all for his report – even though you say it is bias.

I don't think there's much else I can say

 

 

Thank you. 

 

so if my nephew is as to offer a full and final settlement, would it be headed ‘without prejudice save as to Costs’ ? 

 

Regards 

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First of all, before making offers – why not simply enter into ordinary correspondence about it and see if he is prepared to go back to the 400 quid. Telling that there are things which concern you – the metal in the sump when in fact it had been cleaned and drained – I hope that correct??? And also the extraordinary time-lapse which of course you will bring to the attention of the court. Point out to the guy also that he's going to have to endure at least a couple of journeys to your court and that you really like to put it all to bed. Explain to the guy that in fact your nephew has been the victim because he took the person who sold it to him at his word and he realises that he may have been misled if in fact it is correct that the gaskets hadn't been replaced and he is sorry about the problems that this has caused the purchaser.

He could even appear to ally himself with the claimant by saying that he would be grateful if he could have a copy of the report because he might try and claim some money back from his own seller.

So I would enter into an informal discussion – a bit matey if possible – and see if you can get the £400 offer back on the table. As a sweetener offer the court fee. Frankly if you can do that then I think you are well out of it.

Incidentally on the issue of the time-lapse – don't forget that your nephew has also done almost the same thing except he hasn't even fitted the engine and tried it out yet. So if he started to make a claim he would probably be at least 18 months or even two years down the line. I'm just bringing this to your attention so that you can see that a timelag is perfectly well explained by circumstances and you shouldn't simply try to use that against the claimant here – because actually your nephew has done exactly the same thing


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4 minutes ago, BankFodder said:

First of all, before making offers – why not simply enter into ordinary correspondence about it and see if he is prepared to go back to the 400 quid. Telling that there are things which concern you – the metal in the sump when in fact it had been cleaned and drained – I hope that correct??? And also the extraordinary time-lapse which of course you will bring to the attention of the court. Point out to the guy also that he's going to have to endure at least a couple of journeys to your court and that you really like to put it all to bed. Explain to the guy that in fact your nephew has been the victim because he took the person who sold it to him at his word and he realises that he may have been misled if in fact it is correct that the gaskets hadn't been replaced and he is sorry about the problems that this has caused the purchaser.

He could even appear to ally himself with the claimant by saying that he would be grateful if he could have a copy of the report because he might try and claim some money back from his own seller.

So I would enter into an informal discussion – a bit matey if possible – and see if you can get the £400 offer back on the table. As a sweetener offer the court fee. Frankly if you can do that then I think you are well out of it.

Incidentally on the issue of the time-lapse – don't forget that your nephew has also done almost the same thing except he hasn't even fitted the engine and tried it out yet. So if he started to make a claim he would probably be at least 18 months or even two years down the line. I'm just bringing this to your attention so that you can see that a timelag is perfectly well explained by circumstances and you shouldn't simply try to use that against the claimant here – because actually your nephew has done exactly the same thing

 

Hi again :) 

 

sorry my mistake, just spoken to my nephew and it was Feb this year. The reason I believed

it was 2018 is because the letter is dated April 2018

and states in the text February 2018. 

 

Does this his have any bearing ? 

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Well I think it only makes your life even more difficult because it shows that the guy didn't hang around as long as you said so all those bad things which might have happened are even less likely to have happened.

Another thing which occurs to me in your negotiation could be that you point out to the claimant that if he wants to proceed that you will be commissioning your own independent report and that if he wants to rebut it then he will have to commission his own independent report which could cost him £150 which he then stands the risk of losing. Explain to him that if he doesn't produce independent evidence in court then you will point that out to the judge and you will ask the court to draw its conclusions from that.

Of course this is a bluff that it may be gives you a little bit of extra leverage when trying to negotiate a deal.

As I say, I don't really think much of your chances and your best interests are to get back to the 400 quid which frankly your nephew should have discussed at the beginning.

And as I have already said, I should attempt to do this by a discussion – mutually respectful on each side because both the claimant and also your nephew are victims of a rip-off and so they shouldn't start getting into conflict with each other because that will simply mean that in addition to the existing complications, there will be issues of face involved – and that's always the worst atmosphere to try negotiate in – especially when you're talking about the face of youngish guys.

Keep face out of it, keep ego out of it, just trying to get an offer on the table.

If an offer is agreed then simply confirm in writing – don't start using strutting correspondence. And simply agree that as soon as the money has been paid the case will be withdrawn.

"Save as to costs" means nothing in a small claim. If the claimant lives close enough then tell them to both go to the pub


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In fact I hope that you will forgive this un-asked for observation:

Your nephew bought the engine and the accepted certain undertakings from the seller – whoever that person was. Your nephew then resold the engine fully aware that the claims he made did not relate to facts the had first-hand knowledge of but he was simply repeating what he had been told. He then learned from the purchaser that all the claims they had made were being disputed. It must have crossed your nephew's mind that in fact maybe he had been lied to in the first place. Yet despite this he decided to face it out – maybe on some misguided idea that a private seller is Teflon.

I'm afraid that I see a certain culpability/recklessness on the behalf of your nephew here and I think that if he was really honest with himself he would admit once the issues have been raised by the claimant, that deep down there was a real doubt as to whether what he had been told about the engine when he bought it was really true. Despite this he went on to stand his ground.

I really wonder whether your nephew's hands were completely clean on this. Sorry if you think I'm speaking out of turn.


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Unfortunately it was my misjudged advice that I believed he had no liability in a private sale, of a used 20 year old engine - I also believed the lba was not in-fact a real lba but a ploy to obtain money back.

I’ve only just recently seen the advert and correspondence, which isn’t in his favour due to the wording. 

My nephew does has autism though which makes him more gullible and easily led on - he takes people on what they tell him. In truth he wouldn’t be able to defend the claim on his own, he wouldn’t cope with it. 

 

You are are correct that he just sold it on as he was told it was, sadly not remembering the address of where he got it from. The only correspondence he has is messages from the seller who is now ignoring him - so I believe was fully aware it had not been done 

 

 

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Well I'm very sorry and may be my last post was out of turn.

I'm afraid the more I hear, the more I'm convinced that you need to try and get out of it as cheaply as possible and write it off.

If your nephew is on the autistic spectrum then maybe it would be better if you handled it yourself. I think it probably needs a bit of mature cool headedness

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I have noticed that I'm not always in agreement with BankFodder when it comes to cars, but I think all their posts are spot on here.  Looks like a pretty good claim to me.

 

I was going to ask why your nephew never responded to the letter from the claimant and why he never tested the engine himself after he bought it, but if he's autistic that may explain it.  (I have a middle-aged nephew who is probably on the autism spectrum and is car mad, constantly privately trading cars and bits and pieces).

 

You do need to try to reach some sort of amicable settlement to limit the damage.  BF's idea of telling the claimant that your nephew only repeated what he was told when he bought it, I'm not so sure about.  If the claimant is sympathetic it might work, or it may simply confirm to them that it was misdescribed.  Tricky one.  As BF says, even in a private sale, the engine or whatever must be as described.  Or you just say in the advert "Sold as seen" (never sure if that works or not).

 

One thing.  Did your nephew receive a "proper" LBA?  I don't know what the requirements are to satisfy the applicable procedures.  If I were doing a LBA I'd make sure it was described as such.  I'm sure BF knows the answer, but i's probably not worth pursuing.

 

Aim for a settlement.

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Thank you for all the advice. 

 

I believe they have reached an ‘agreement’ of payment of xxx and they will close the claim. 

A letter was received for full and final settlement to this effect this morning and I believe the payment sent by PayPal. 

 

One question please. If the claimant does not close the claim, do we just submit the letter and proof of payment to the court and request strike out ? 

Or does that not apply as claim has not been acknowledged yet, the deadline is the 4th .... do we still acknowledge the claim ? 

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You should go ahead and defend the claim saying that you deny that any money is owed and that a settlement was agreed on X X X date and that the claimant has agreed not to continue.

It is essential that you put in a defence if it has not been withdrawn. Otherwise you lay yourself open to a default judgement – unlikely – but possible.

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