Return of vehicle, distance sale

[Manxman in exile]

On 24/09/2020 at 15:36, dx100uk said:

said it once i'll say it again - you agreed the sale verbally ...dead duck.

there is NO requirement for him to supply you with a cancellation form on durable medium (whatever that is)

 

 

 

Can I attempt to clarify what I think is a point of confusion between the OP and dx100?

 

What I think the OP is referring to is the general right to cancel a distance purchase within 14 days.  When the purchase is made, the vendor is obliged to provide certain information to the purchaser about their right to cancel in a durable medium.  An email or a piece of paper is a durable medium, but 'phone calls or links within websites (or links sent by email) are not.  If the vendor does not provide the required information in a durable medium, the usual 14 day cancellation period is extended up to a maximum of one year and 14 days.

 

My understanding is that one of the pieces of information that the vendor is required to provide in a durable medium is that the purchaser  will be reponsible for return costs if they cancel the order, and if a return by "normal" postage is not possible, the vendor needs to state what the return costs will be.

 

I think what the OP is trying to do here is to argue that they want to cancel the purchase and that because the vendor did not explain about their cancelation rights in a durable medium then, (i) the cancelation period is extended up to a maximum of 379 days, and (ii) the vendor is responsible for paying the return costs.

 

Anton2244 - is that what you are trying to argue?

 

Whether my understanding of this aspect of the "distance selling regulations" is correct and whether they apply in this case I won't comment.  Nor will I comment on whether this is the best approach for Anton2244 to take as he also seems to be under the mistaken impression that because no cancelation informatoin was given in a durable medium then "no contract" can exist...

 

 

[Manxman in exile]

Sorry - need to put my glasses on!

 

I think you and the other posters have been at cross-purposes because they haven't followed what you are trying to argue.  You aren't arguing a fault etc with the car, you simply want to cancel it as a distance sale, and because the vendor did not provide the necessary cancellation information pre-contract in a durable medium, you are saying that you therefore have 12 months plus 14 days to cancel AND that the vendor has to pay the collection/recovery costs.

 

Although I understand that argument, I don't know if that's the best way to proceed or not.   I suspect not many people have tried to argue it with second-hand cars.  And that might be, for some reason I don't know, that it's a non-starter or it's too risky.

[Manxman in exile]

I see that the AA link in #59 is actually making the same argument as Aton2244 is making about cancelling a "distance sale" within 14 days (see after the subheading "Buying a used car online").

 

I know the OP hasn't bought online (at least I don't think she has) but it is at a "distance", and I know the article also doesn't mention the extended cancellation period, but I'm pretty sure it is a consumer protection and OP has already referenced it in an earlier post.

 

dx100uk - are you saying that the OP should ignore this aspect of consumer protection and rather go to Trading Standards and rely on them prosecuting the dealer for the "sold as seen" bit?  I agree that the problem the OP has going down the consumer rights route is actually getting their money back - but I'm not sure how TS do that for her?   I'm not sure what action it is being suggested she and/or TS takes?  Or I may have missed that.

 

(FYI - many, many years ago I was trainee TS inspector and one of the reasons I left was their general uselessness.  There were also too many hurdles and obstacles put in the way of consumers complaining about cross-border sales between two adjacent counties.  The general rule seemed to be to fob complainants off with excuses for not doing anything.  I can see immediate problems with a dealer in Birmingham and a complainant in Scotland.  But that was over 30 years ago so maybe things have improved by now... )

[Manxman in exile]

So you are confident that TS would act on this and OP would get her money back?

 

What if they ain't interested?  (As explained, I have a somewhat jaundiced view of TS and their abilities)

[Manxman in exile]

So the OP goes to her (local?)* Trading Standards office, supplies them with all the details of the purchase, and asks for their advice and assistance in whatever way they can give to recover her money from the dealer?

 

I ask because in England it's almost impossible for a consumer to contact TS let alone get them to do anything.  It nearly always has to be done by first raising a complaint with Citizens' Advice and they then refer it to TS.  And then the consumer basically has no further interaction with TS unless they have to provide a statement or something.  But maybe it's different in Scotland.

 

I'm sure there are many examples of prosecutions by TS for this sort of thing, but do consumers get their money back?

 

I don't recall exactly where the OP is in this, but if I had been her I think my first move would have been to write to the dealer saying something like "I'm going to seek legal advice on this because I think that by selling to a member of the public a car with a receipt saying 'Trade Sale - Sold as Seen', you are actually guilty of committing a criminal offence" and see where that got me, and then proceeded accordingly.

 

(The most surprising thing about this thread is that it was the Motor Trade's Ombudsman's website in the first place that pointed out the possibility of an extended cancellation period for the purchaser on a distance sale!)

 

*What I'd be concerned about is that the OP's local TS office says "Nothing to do with us - contact Birmingham TS"  and they say "But you live in Scotland - nothing to do with our local authority, contact your own TS". 

 

But I suppose she'll only find out by asking them.  Can't do any harm.

[Manxman in exile]

There was another poster (Hammy1962) who understood (#3) the distance selling point you were trying to make, but you may have inadvertantly put him off in your subsequent post.  He may still be following this thread.  Wonder if he has any ideas that could possibly help you? 

 

I'm concerned about how you continue if the TS route is not helpful...

[Manxman in exile]

What does "TRADEFLAG  Trade" signify in the advert? 

Is that meant to warn potential buyers that this is a trade sale only?  If so, does it have any effect?

 

Just to add on the OP's behalf,

I don't think she has been "hung up" on getting trading standards involved. 

She seems to have done so initially because she was advised to do so by some advice service in Scotland. 

 

But the OP has throughout this thread been arguing on her consumer rights position that she has an extended period to cancel her purchase because it's a distance sale and because she wasn't notified of her right to cancel in a "durable medium" before buying the car. 

 

Additionally, because she was not given any of that pre-contract information about cancellation and return costs, she has argued that the dealer is liable to pay the return costs.  Whether that is a good argument or not, and whether it is likely to be a practical way of getting her money back, I won't comment on, but that seems to me to have been her consistent approach throughout.  (It was somebody else who didn't seem to follow her argument about an extended cancellation period and didn't understand the references to a "durable medium" who brought up using TS to prosecute the dealer.)

 

Anyway - to move on - it seems to me that the OP has focussed on her right to cancel a distance sale for no reason, rather than to reject the car as faulty, because (and OP, please correct me if I'm wrong) she doesn't really think the car is faulty.

 

Now the OP may be completely mistaken and foolhardy in approaching this problem in the way she has (it's not clear to me whether she is or isn't) but if she is, I think it needs to be very clearly pointed out to her. 

 

Unfortunately, many posts seem to have progressed on the basis that she was rejecting the car (not cancelling the purchase) or that she should get TS to prosecute the dealer.  The OP just needs to be clearly told either "Yes - you're doing the right thing" or "No - you're doing the wrong thing - do this instead".

 

I think that's why the thread has droned on. 

 

(I agree that if the dealer doesn't settle out of court there will be arguments about whether it's an English or a Scottish case and I'm sure there will be problems enforcing any judgment whatever approach is taken).

 

 

 

 

[Manxman in exile]

I think dx100uk is saying that EITHER (1) the dealer has tried to pass it off as a "trade sale" which everybody is agreed that they can't do, and TS will be interested and hopefully can assist you in bringing a civil claim against him after they prosecute, OR (2) if it IS a consumer sale, then your best bet (if the car can't be rejected because it isn't really faulty?) is to try to cancel within the 12 months plus 14 days as you originally intended doing.

 

I think the reasons you originally tried to go for (2) were because you didn't really think the car was faulty (rather you changed your mind about buying it?), and because Advice Direct in Scotland and your local TS people suggested it as an avenue to explore.  I suspect the difficulty with it is that nobody here (or anywhere else!) has ever come across this aspect of distance selling cancellation rules in respect of used cars - usually purchasers just want to get a refund because the car is faulty or wasn't as described - not because they want to cancel the purchase.  (And I think that's why Hammy1962 thought this would be interesting).

 

I think that because what you are trying to do is both (1) novel and unusual and (2) between England and Scotland, everybody is a bit stumped about how to proceed.  (Well - I can only speak for myself in that respect - not other posters!).

 

Can you post up a redacted version of your actual receipt/invoice?  I think it's v naughty of the dealer to use paperwork headed "Trade Sale" but then have a section for consumers.  Also somewhere earlier you said he'd written "For spares only" on it, which certianly is not clear from his advert you posted earlier.

Edited September 27, 2020 by Manxman in exile

[Manxman in exile]

Erm...

 

Can somebody tell me if I'm looking at this right?  I've just checked the car's MOT history and the MOT appears to have expired wef 02 July 2019 - nearly 14 months before the sale date on the invoice... ?  (Is the website not up to date because of Covid?)

 

Also... the last MOT before 03 July 2018 was 22 October 2013(?) when the recorded mileage was over 94,000?  (Advert mileage according to OP was 80,000)

 

https://www.check-mot.service.gov.uk/

 

Is that odd - or am I not looking at the website properly?  (The car isn't MOT exempt because of it's age or something, is it?)

 

EDIT:  OK... is it because the advert says the reg. no. is not being transferred but put on retention.  In which case why does the invoice have the same reg no (A16BYN) as the advert?  Or does the invoice say A16FYN?

 

I'm confused...

 

Too late to edit again.  A16FYN is a different car altogether - I must be reading the invoice wrong.

 

My other queries re MOT still stand - and the MOT website does seem to be up to date because our MOT was done in May and that is on there.

Edited September 29, 2020 by Manxman in exile

[Manxman in exile]

Just to remind us - what was Advice Direct Scotland saying again?  Were they suggesting the distance selling/cancellation route or something else?  And sue in Scotland or England?

 

Also - what is the registration number of the car you have?  Is it A16BYN and are you the registered keeper?  Have you got the V5C?

[Manxman in exile]

dx100uk

 

do you think it might help if the OP went back to the dealer and argued the point about the dealer having to pay the vehicle recovery costs (in the event of a cancellation and no pre-contract info) by quoting to them the Motor Trade Ombudsman's view on the question from post #25?   I mean, the motor trade ombudsman is not generally well-known for being on the consumer's side, and yet there they are spelling out the OP's argument for her!

 

This could be backed up by (1) reiterating that the advertised mileage does not agree with the MOT history - at least I think that's the case; I haven't quite got my head round it yet, and (2) pointing out that the "sold for spares" bit is simply untrue.  She could wind up by suggesting that she thinks any ADR or court would find in her favour on all three of these points and ask if he wants to reconsider his position.

 

See if that shifts the dealer any further.

 

Assuming he won't move, then either go for ADR (is this binding and who does it?) as a first step or continue with legal claim.

 

Only contra-indications I see:  (1) I think the distance selling/extended cancellation argument is very unusual with a used car purchase and have no idea if it's likely to be successful.  BUT Advice Direct Scotland and Aberdeen TS seem to think it's possible(?) and so does the Motor Trade Ombudsman - so who knows.

 

(2) BankFodder did suggest several pages back that if the OP got the purchase price back that might be a result, but that would mean either writing off two sets of transportation fees or arguing separately about them.

 

 

[Manxman in exile]

dx100 will know the answer to this - are all forms of ADR necessarily binding?

 

I ask because I thought that when you made a money claim there was a question as to whether you were willing to try "mediation" prior to it getting to court, but I didn't think that that mediation was binding?  ('Cos obviously if the mediator gets the law wrong you can't be bound by the decision.  But I may be entirely mistaken about that and misunderstanding what happens in mediation... )

 

I understand that the distance selling/cancellation rules apply to used cars like everything else - but I wouldn't be surprised if nobody has ever actually used that argument before.  I doubt anybody has ever attempted to get a refund on a used car by cancelling it within a year and 14 days.  But that doesn't mean it wouldn't work and obviously the Motor Trade Ombudsman thinks it would work as they specifically refer to it?

 

[EDIT:  And this is where they do  https://www.themotorombudsman.org/knowledge-base/can-i-return-my-car-within-14-days-of-buying-it      They didn't inform you of your right to cancel?  I also note this link doesn't talk about who pays the return transportation costs?]    

 

I'm just of the view that there is always an element of lottery attached to any case that gets as far as court, no matter how good your case may be.  I think the risk is higher with a novel untried argument.  (Well - I say untried but maybe it's happening all the time... )

Edited September 30, 2020 by Manxman in exile
insert link

[Manxman in exile]

Three questions:

 

1.  Does UK law mirror those EU directives?  (I assume it does, but I'm not certain).

 

2.  Just looking through that EU stuff it says the information about cancellation etc needs to be in a "clear and understandable format".  It doesn't mention anything like in a "durable medium" which I thought was UK law.  OP - I presume the dealer never communicated anything at all to you about cancellation rights?  Could they argue they did?

 

3.  Could the dealer possibly argue that because the car was picked up by the OP's agent (who signed the invoice) and that the balance of the purchase price was transferred by the OP during pick up, that it was not a distance sale?

 

Sorry - just trying to anticipate what could go wrong...

[Manxman in exile]

Well if he can't prove that he told you by reference to something, then by definition he didn't tell you in a "durable medium"!

 

Durable medium

Under the Consumer Contract regulations, a durable medium means one that allows information to be addressed personally to the consumer and allows the consumer to store and access it for future reference in an unchanged form. Examples of a durable medium are paper, email, text message, and a personal account, such as online accounts used by utility companies for billing

 

https://www.mylawyer.co.uk/regulatory-requirements-for-consumer-contracts-a-A76062D77397/

 

I understand the cancellation argument but it just seems strange to me that a used car refund might hinge on whether the dealer informed a distance purchaser of their right to cancel in a durable medium.  Something doesn't seem right about it...

 

But all the arguments seem to be stacking up in favour of it, so...

[Manxman in exile]

So it's cost you 1850 + 361 = £2211

 

Yes - he's getting off lightly with 1775  and he wants to knock you back to 1700?

 

Unless you are happy to accept 1700 to make it go away, I think I'd go back to him, remind him that it's cost you over £2200 and that Trading standards in Scotland agree you have a valid case.  Tell him you are doing him a favour by offering to settle for 1775, and that if he doesn't except it within the next (I don't know - 48 hours? - by midnight saturday?*) you'll withdraw that offer and it goes up to £1850.  If he doesn't accept that you'll withdraw that offer too and go to ADR for the full £2200 that he's cost you.

 

If he argues that it was your decision to incur the £361 transport costs, remind him that you only had to do that because his quoted delivery costs were extortionately high, and that he could have avoided all of this by giving you the necessary pre-contract information in the first place, as required by law.

 

That's what I'd now do - but it's easy for me to say because it's your money not mine!  Wait and see what dx100uk and any others suggest.  If I were you, I certainly wouldn't do the above just on my advice.  In particular, I'm not sure how risky going to ADR is from your point of view, but I assume you're sort of committed to that now as you've offered it, and he accepted ADR I think?  (And if it does get to ADR it might be helpful to know if you are allowed to indicate during that process that his potential criminal offences have been reported to TS.  I don't know if you'd be allowed to do that or not.)

 

The dealer does seem to have given away quite a bit of ground, but at the end of the day you may be happy with £1700 just to get over it and move on, and may not want to push him any further.

 

Don't just rely on me.  See what others think.

 

*I've no idea of appropriate timescales.  48 hrs?  72?  five days?  A week?

 

But if you make this threat - you have to carry it through...

Edited October 1, 2020 by Manxman in exile

[Manxman in exile]

Aton - I see you've reacted to my post.  Note I've edited it since you read it.  I added the bit in asterisks about reasonable timescale.  Like I say don't just rely on me - see what others say too

[Manxman in exile]

dx100's suggestion at #128 is better than mine - it's more immediate and more no-nonsense than my suggestion.  And yes, the dealer's stringing you out for more time.

 

The only thing I would try to work into dx100's wording is something to clarify that the dealer had rejected your offer before you are now withdrawing it with immediate effect.  I don't think it's absolutely necessary but just ties up the loose ends.

[Manxman in exile]

I think referring to the dealer's rejection of the OP's offer can be relevant because it explains and justifies the OP's subsequent withdrawal of her earlier offer.

 

It may not strictly be necessary (dx might argue that the OP's withdrawal of the offer need not be justified and the reasons for it can be inferred from events) but to my mind it puts the OP's withdrawal of the offer clearly into context and explains why, making it easier for a third party to follow the events.

 

As I say, I think it's relevant but I don't think it's necessary to the OP's argument, so it can be omitted.

 

(Of course, there may be other reasons why dx100 thinks it not a good idea to touch upon the rejection, but I don't think it's because it's irrelevant?)

[Manxman in exile]

If you're happy with the £1775 as the price to accept to draw a line under this, then you should view it as a result.

 

Make sure he coughs up, though!  And well done for persevering this far.

 

(And I know you explained from the outset why it was cheaper to get a car from B'ham than it was from Scotland's oil capital, but the point BankFodder made early on is one to note.  An awful lot of the used car complaints here and on other forums are simply made worse because the buyer buys a car virtually unseen from several 100 miles away, and when there are inevitable problems, they're stuffed.  Try and buy closer to home)

 

PS  Gotta ask!!!  Is it possible to see a photo of the blue "wrap" on the car?  I'd like to see how bad it is...