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    • In terms of whether or not this is a private sale, clearly it will be for a judge to decide. It seems to me that we have somebody here who bred a litter of puppies and has sold several of them or all of them at probably around £1200 each. I think that is very different from selling your own private second-hand car to get what you can for it in order, for instance, to buy another one. Anyway it's for the judge to decide. In terms of whether or not the seller is aware of the defects – if they are a private seller – all it really means is that they are not subject to sale of goods legislation so that a purchaser in a private sale does not have specific protections. After that you have to fall back onto the common law of contract and once again I think that the liabilities are reasonably strict and I still think that even in a private sale if you bought something with defects which was represented to you as being without defects then you would probably have a good case. In this case, the dog has been accompanied by a health certificate and I think that is as good as any kind of representation dog is without defects. I think we are coming to an altogether more interesting issue. Apparently the dental defect with this puppy is observable and could have been detected by any reasonably careful examination carried out by a reasonable professional. But apparently also there is the possibility that there may be a more complicated problem which could be addressed by work costing up to £2000. What I'd like to know is whether this more complicated problem is as a result of the failure to spot the initial problem. Even if the initial problem had been spotted, with this still be a possibility that this more complicated work would be necessary? I suppose what I'm getting to his that at what point does one decide that a defect is an unacceptable defect or simply a risk that comes with purchasing all animals and therefore could still be considered as "satisfactory" because it would meet the reasonable expectations of any reasonable pet owner. To put it bluntly: are we saying here that if you buy an animal is less than genetically perfect, that you are purchasing defective goods and you are entitled to a refund? Does this mean that all animal traders are obliged to ensure that all the animals they sell are genetically perfect? This is dangerous territory: eugenics.  
    • a dn can be issued even on one default payment.
    • I think I still remain to be convinced that a court would not find the seller's offer to take the puppy back and give the OP a full refund both reasonable and acceptable.   Ignoring that this is the sale of a puppy, isn't this more akin to the private sale of a second-hand car?   I don't really know what the phrase:  "I recently bought a puppy from a home breeder. They have never breed dogs before and aren't a licensed business" means.  Is this a business to consumer sale, or is it simply the opportunistic private sale of puppies from a domestic litter?  I think the OP needs to establish this because it's not clear to me - yet.   AIUI, if I as a private individual privately sold, say,  a car with umpteen non-apparent faults or defects with it, but I was honestly unaware of them and could not be expected to be aware of them, then I'm not liable for any breach of contract when those faults and defects manifest themselves to the buyer a week later.  Isn't that what worried private sellers of cars are told here when aggrieved purchasers threaten to sue them?  It's not immediately obvious to me why this is necessarily any different - unless this is clearly a business to consumer sale.   The OP also says:  "Our puppy was sold as having passed a full health check from Vets4Pets", and so far as I can see this isn't disputed.  Unless that health check revealed the dental problem the OP is now complaining about, but the OP never was shown it (seems unlikely that the seller would mention it but not make the results available), then I think the seller may well be entitled to rely on it.  What more could they do to ascertain the health of the puppy?   I think this is not necessarily a clear-cut claim, and from the way the OP describes the breeder I think the question whether this is a consumer sale or a private sale may not have a black or white answer.     1.  The OP mentions following advice to buy puppies bred from a "home pet" (or similar such wording).  Not clear if this was the case here, but if it was, doesn't this suggest a private rather than consumer or trade sale?   2.  The OP also suggests that the health of the puppy was misrepresented, but is this necessarily correct?  They say the puppy was advertised as having had a "full health check", but that's not the same as saying the puppy was actually healthy.  And if it was a private sale, is the seller required to declare health problems they are aware of if they aren't specifically asked?
    • Ok,    I thought it may of helped as their DN stated 2 installments in arrears when it was issued on 10/2/17, but it would infact only have been 1 installment overdue 17/01/17.   I will keep to what I already know and stop over thinking further issues. 😁    
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BankFodder

The courier industry – some basic points for customers

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We are getting so many complaints about the courier industry – and Hermes in particular that in order to avoid repetition, I'm setting up some basic points in this post.

 

Here are some of the excuses/justifications that you will hear from courier companies for denying that they owe you any duty in relation to an item that you have sent or that you were expecting:

 

You have no contract with us

People generally speaking deal with Hermes through a third party broker – typically Parcel2Go or Paclink (if they are dealing through eBay).

These brokers/agents stand as a sort of buffer between the customer and Hermes and Hermes will always try to deflect liability by saying that you have no contact with them and that your issue is with the agent.

Although this is strictly true – there is an act of Parliament called the Contracts (Rights of Third Parties) Act 1999.

The effect of this Act is to give a third party beneficiary to a contract all rights that they might have had if they were directly a contracting party. This means that you can take your own direct court action against Hermes even though you don’t have a contract with them because you are clearly a beneficiary of the arrangement. The only exceptions to this are if the contract between the agent and Hermes specifically excludes the effect of the Act – and so far neither Paclink nor Parcel2Go nor Hermes have ever produced a copy of the contract to show that third party rights are excluded.
Paclink is a particularly useful buffer for Hermes because they are out of the jurisdiction – based in Spain. I can imagine that it is no accident that they are there.

Exactly the same principle applies if you buy something from eBay or elsewhere and it is lost or broken – and your seller can't be bothered to get involved claiming from the courier. As the intended recipient of the item, you are clearly intended to be a beneficiary of the contract and so although it is not you who made the contract with the courier, you inherit all the contractual rights as if you were the main contracting party.

 

Prohibited item

Courier companies often try to deny liability because they say that your item is on their “prohibited items list”.

We take the view that this “list” is generally unenforceable where the damage or loss is not affected by some characteristic of the item.
It is reasonable to say that a courier company will always have difficulty denying liability for the complete loss of an item simply because it is on the prohibited items list. It is difficult to imagine how the fact that something is made of glass or is otherwise fragile, can affect the risk of it being lost.

So an example might be that you send a television somewhere and it never arrives. Hermes will then turn around and say that televisions are specifically excluded or else that they contain glass and that is a prohibited item.

The response to this is that the fact that the television contains glass has not affected the risk of the item being lost. Of course if your television arrived with a broken screen then Hermes might have a basis for relying on their prohibited items list – although that is not certain either.
If you send an item containing glass elements, but the item is damaged in some other way without affecting the glass, then similarly it would be extremely unreasonable – and probably unenforceable – for a courier company to say that because there is a glass element inside the item, that they are not responsible for any kind of damage. Clearly if a metal casing is damaged and the fact that it contains glass has not affected the risk in any way.
Probably a reasonable position for a customer to take is to ask "what was the risk envisaged by inclusion of an item in the prohibited items list?".
So if "glass" is on the list – then a reasonable inference is that Hermes do not want to be held liable for broken glass. If the classes lost then that is not an envisaged risk. If the frame of the painting is broken but the glass is intact – then that also indicates that the glass content of the package had no bearing on what has actually happened.

 

No compensation cover.

Hermes and all the other couriers offer “compensation cover” which is an additional little money earner dressed up to look like an insurance policy – but called something completely different to avoid the dangers of Financial Conduct Authority regulation.

What is really happening here is that you the customer are being asked to insure Hermes against their own breaches of contract or to protect them against their own negligence.

This is an extraordinary trick and yet it has developed into a consumer culture going back 30 or 40 years so that most consumers imagine that if they didn’t buy compensation cover, then they have no other avenues for redress if their property is lost or damaged by the courier.
The fact is that when you send an item through a courier service, you pay for the price of delivery. If the courier company fails to deliver your item at all or if it arrives damaged then they are in breach of that contract but by denying liability simply because you haven't insured against their breach of contract is an extraordinary position to take.
It is the courier company which should have an insurance against their own losses, their own failures, their own breaches of duty – but somehow they have produced a belief amongst consumers that if they don't buy compensation cover then they have no further rights.
Surely this can't possibly be correct.
Courier compensation cover is the equivalent of an extended warranty when you buy a car or a consumer good in Currys or PC World. Follow this link to read about extended warranties. There are huge parallels with the compensation cover culture of courier companies.

Of course if you do pay extra for compensation cover – then this will help your claim against Hermes et cetera to be even more slam-dunk. But if you don't buy the cover, don't imagine that you have no rights.

 

Incorrectly declared value
This is one area where the courier companies probably do have a basis for loss denial.
It's a basic principle of contract that you reach an agreement with a shared understanding of exactly what has to be done and of the risks of not doing it.
If you send a £500 item to a courier service but you declare it's value as only £100, then the courier company would probably be justified in reducing the amount of money they paid you to that declared value.
When you enter into a contract with a courier company, you pay them a certain amount of money to take a certain risk – value £XXX. The courier company accepts your commission on that basis. If they then later on break or lose your item, it would probably be unreasonable for you to expect them to reimburse you with the true value of the item. The courier company might quite reasonably say that had they known the true value of the item then they might have taken a different position on the cost of delivery or whether to deliver at all.
Make sure that you declare the correct value of the item that you are sending – and also make sure that you have evidence to support that valuation.


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In this image, you can see that Hermes is already setting themselves up to deny liability for a missing parcel simply on the basis that it appears on the prohibited items list.

Of course this is dishonest – and calculated to defeat the first wave of claimants who don't have sufficient confidence or who are too trusting of a company like Hermes.

Any contractual term which seeks to exclude liability for a lost item on the basis that the item appears on a prohibited items list is unenforceable.

 

105894645_3189590247769873_7195715358600650685_o.jpg


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