Claim received - Sold used engine untested. Private sale

[BankFodder]

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.

[BankFodder]

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.

[BankFodder]

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

[BankFodder]

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.

[BankFodder]

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.

[BankFodder]

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

[BankFodder]

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

[BankFodder]

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

[BankFodder]

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.

[BankFodder]

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

[BankFodder]

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.