Another Caveat Emptor Thread - with a slight twist
Discussion
walm said:
it's completely unfair to describe something with 10 repeated faults as "running beautifully"
And this is the crux of the issue.Any sensible person agrees with you. But, proving this in court has, historically, been incredibly difficult - which is why many are telling the OP not to bother.
C70R said:
And this is the crux of the issue.
Any sensible person agrees with you. But, proving this in court has, historically, been incredibly difficult - which is why many are telling the OP not to bother.
You have said that a couple of times.Any sensible person agrees with you. But, proving this in court has, historically, been incredibly difficult - which is why many are telling the OP not to bother.
Yet other lawyers have been on here saying that the courts are a lot more common sense than we might think.
What makes you say it's been difficult? Genuine question!
funkyrobot said:
If you search for similar threads on here from the seller's perspective, there is a lot of 'private sale, do one' bounded about..
Yes - we've gone over this twice already on the thread.If you buy a car from a seller who says nothing about the condition of the car, then the buyer of course has no comeback.
But, if the seller provides a false description of a car, and the buyer can demonstrate that that description is false then the seller is at fault, and the buyer does have a method of recourse.
C70R said:
And this is the crux of the issue.
Any sensible person agrees with you. But, proving this in court has, historically, been incredibly difficult - which is why many are telling the OP not to bother.
Historically it's been very difficult because it's difficult to prove a lie without strong evidence.Any sensible person agrees with you. But, proving this in court has, historically, been incredibly difficult - which is why many are telling the OP not to bother.
The difference in this case is that the OP has evidence that the driver of the car was directly told that the car was NOT 'running beautifully', so advertising the car as such was misrepresentation.
The standard of proof in the county court is the 'balance of probabilities'. So, if the judge believes that the statement is tantamount to misrepresentation, and from the evidence provided assesses that there is a 51% or greater chance that the seller knew that the car was not 'running beautifully', he will find in favour of the OP.
JustinP1 said:
Historically it's been very difficult because it's difficult to prove a lie without strong evidence.
The difference in this case is that the OP has evidence that the driver of the car was directly told that the car was NOT 'running beautifully', so advertising the car as such was misrepresentation.
The standard of proof in the county court is the 'balance of probabilities'. So, if the judge believes that the statement is tantamount to misrepresentation, and from the evidence provided assesses that there is a 51% or greater chance that the seller knew that the car was not 'running beautifully', he will find in favour of the OP.
OP is at 95%+ by my reckoning The difference in this case is that the OP has evidence that the driver of the car was directly told that the car was NOT 'running beautifully', so advertising the car as such was misrepresentation.
The standard of proof in the county court is the 'balance of probabilities'. So, if the judge believes that the statement is tantamount to misrepresentation, and from the evidence provided assesses that there is a 51% or greater chance that the seller knew that the car was not 'running beautifully', he will find in favour of the OP.
V6Pushfit said:
JustinP1 said:
Historically it's been very difficult because it's difficult to prove a lie without strong evidence.
The difference in this case is that the OP has evidence that the driver of the car was directly told that the car was NOT 'running beautifully', so advertising the car as such was misrepresentation.
The standard of proof in the county court is the 'balance of probabilities'. So, if the judge believes that the statement is tantamount to misrepresentation, and from the evidence provided assesses that there is a 51% or greater chance that the seller knew that the car was not 'running beautifully', he will find in favour of the OP.
OP is at 95%+ by my reckoning The difference in this case is that the OP has evidence that the driver of the car was directly told that the car was NOT 'running beautifully', so advertising the car as such was misrepresentation.
The standard of proof in the county court is the 'balance of probabilities'. So, if the judge believes that the statement is tantamount to misrepresentation, and from the evidence provided assesses that there is a 51% or greater chance that the seller knew that the car was not 'running beautifully', he will find in favour of the OP.
d should be allowed to blatantly lie and scam the guy. JustinP1 said:
Historically it's been very difficult because it's difficult to prove a lie without strong evidence.
The difference in this case is that the OP has evidence that the driver of the car was directly told that the car was NOT 'running beautifully', so advertising the car as such was misrepresentation.
The standard of proof in the county court is the 'balance of probabilities'. So, if the judge believes that the statement is tantamount to misrepresentation, and from the evidence provided assesses that there is a 51% or greater chance that the seller knew that the car was not 'running beautifully', he will find in favour of the OP.
So it's the word "beautifully" which is the core of the issue? That doesn't come under advertising puffery? The difference in this case is that the OP has evidence that the driver of the car was directly told that the car was NOT 'running beautifully', so advertising the car as such was misrepresentation.
The standard of proof in the county court is the 'balance of probabilities'. So, if the judge believes that the statement is tantamount to misrepresentation, and from the evidence provided assesses that there is a 51% or greater chance that the seller knew that the car was not 'running beautifully', he will find in favour of the OP.
Flooble said:
JustinP1 said:
Historically it's been very difficult because it's difficult to prove a lie without strong evidence.
The difference in this case is that the OP has evidence that the driver of the car was directly told that the car was NOT 'running beautifully', so advertising the car as such was misrepresentation.
The standard of proof in the county court is the 'balance of probabilities'. So, if the judge believes that the statement is tantamount to misrepresentation, and from the evidence provided assesses that there is a 51% or greater chance that the seller knew that the car was not 'running beautifully', he will find in favour of the OP.
So it's the word "beautifully" which is the core of the issue? That doesn't come under advertising puffery? The difference in this case is that the OP has evidence that the driver of the car was directly told that the car was NOT 'running beautifully', so advertising the car as such was misrepresentation.
The standard of proof in the county court is the 'balance of probabilities'. So, if the judge believes that the statement is tantamount to misrepresentation, and from the evidence provided assesses that there is a 51% or greater chance that the seller knew that the car was not 'running beautifully', he will find in favour of the OP.
Burwood said:
I have a law case which gives it great meaning actually
Brilliant case! For the benefit of the others, the ruling burwood referenced includes that "in the ordinary use of such an adjective as "beautiful", when applied to a motor car, is it as least likely that the person hearing that description will think that it is intended to refer not only to the outside appearance but also to the quality of its running and matters of that kind"great runner, nice little engine, beautiful, excellent condition and more have all been ruled on and courts found, luckily for Chris that anyone using those terms had better have a sweet car or else. Qualified by saying these have all been classed as misrepresentations not puffery when said car was a shed. The courts look directly at the advert and the fault of the vehicle. Bad news for seller if you ask me. But hey, wtf do i know 
Flooble said:
Burwood said:
I have a law case which gives it great meaning actually
Brilliant case! For the benefit of the others, the ruling burwood referenced includes that "in the ordinary use of such an adjective as "beautiful", when applied to a motor car, is it as least likely that the person hearing that description will think that it is intended to refer not only to the outside appearance but also to the quality of its running and matters of that kind"funkyrobot said:
Of course, this could be the case.
But can anyone 'prove' the seller knew?
Also, why did the OP buy such a complex and expensive car privately? If these vehicles are known to have certain issues, why not go down the dealer/warrantied route?
I think the OP bought based on price and is now suffering some pain because of this.
Surely that's the whole point of taking this to court though?; So that it can be judged independently.But can anyone 'prove' the seller knew?
Also, why did the OP buy such a complex and expensive car privately? If these vehicles are known to have certain issues, why not go down the dealer/warrantied route?
I think the OP bought based on price and is now suffering some pain because of this.
Flooble said:
So it's the word "beautifully" which is the core of the issue? That doesn't come under advertising puffery?
Yes, and your point is correct, it's for the judge to decide where the line is drawn between puffery and statement on case law."Best car I've owned", "Lovely car" etc. one would would be on the puff side of the 'puffery scale'. A statement about the mechanical working of the car when it can be demonstrated that the author knew it was false could be said to be on the other side of the scale.
There is the argument that a non-expert, non-trader is not expected to provide an expert opinion as to the mechanical workings to a car, so that the buyer should not rely on their statements.
The counter-argument in this case is that despite not being an expert, that he knew full well that to provide a statement that the car was running well would be false, but proceeded to do so anyway.
JustinP1 said:
Flooble said:
So it's the word "beautifully" which is the core of the issue? That doesn't come under advertising puffery?
Yes, and your point is correct, it's for the judge to decide where the line is drawn between puffery and statement on case law."Best car I've owned", "Lovely car" etc. one would would be on the puff side of the 'puffery scale'. A statement about the mechanical working of the car when it can be demonstrated that the author knew it was false could be said to be on the other side of the scale.
There is the argument that a non-expert, non-trader is not expected to provide an expert opinion as to the mechanical workings to a car, so that the buyer should not rely on their statements.
The counter-argument in this case is that despite not being an expert, that he knew full well that to provide a statement that the car was running well would be false, but proceeded to do so anyway.
So, a quick update.
Letter from solicitor to seller:
27 September 2016
Dear Sir
Our Client: XXX
Vehicle: Audi S5
We act for XXX, who has instructed us in connection with a contract with you in relation to the purchase of the above vehicle.
The Contract
After seeing an advertisement placed in Auto Trader by you for the sale of the above vehicle, our client arranged with you to view the vehicle on 1 September 2016. Your advertisement described the vehicle as follows:
“Excellent condition throughout. APR software modified for over 1 year, runs beautifully”.
Our client test drove the vehicle on 1 September 2016, during which you confirmed that the vehicle had “no problems”. Following the test drive our client agreed to purchase the car for the sum of £17,200 and paid you a deposit of £X.
On 3 September 2016 our client paid you the balance of the contract sum and collected the vehicle.
Vehicle faults
Following the sale to our client, it became clear during the drive home that there was a serious problem with the vehicle. Our client initially heard a very loud warning alarm and the centre console flashed up with a warning of a “Gearbox Malfunction”. The car then lost all power for a minute before resuming. A few minutes later, the same warning happened again and the car repeatedly lost power. This happened three further times during our client’s journey home.
Our client subsequently spoke to a mechanic who had previously worked for Audi, who plugged a laptop into the vehicle and ran diagnostic tests. The tests revealed that the vehicle suffered from a fault not uncommon to Audis manufactured in that year, whereby the vehicle believes that the clutch is about to fail so it cuts all torque from the engine in order to protect the clutch.
The diagnostic test also revealed that this error message had occurred a total of 14 times, with the first occurrence having happened on 18 August 2016. It is therefore clear that this error had been experienced by you ten times prior to our client purchasing it. A copy of the diagnostic test screen print is enclosed.
Misrepresentation
It is therefore clear that your representations to our client that the vehicle was in excellent condition and was running beautifully were false. These representations were made to our client either fraudulently or recklessly, insofar as you did not care whether they were true or false. Our client relied on your representations when entering into the contract for the purchase of the vehicle, and as a result has suffered loss.
Loss
As a result of your misrepresentation, our client has suffered a financial loss. This is quantified as the cost of repair, in the likely sum of £2,500. Our client is now seeking to recover this sum from you.
Court Proceedings
Please would you therefore arrange to pay to us the sum of £2,500 to this firm within the next seven days, in default of which we are instructed to issue court proceedings for recovery of the said sum together with all interest and costs. Please note our bank account details below or alternatively please make cheques payable to
XXX
We look forward to hearing from you.
Yours faithfully
XXX
Letter from solicitor to seller:
27 September 2016
Dear Sir
Our Client: XXX
Vehicle: Audi S5
We act for XXX, who has instructed us in connection with a contract with you in relation to the purchase of the above vehicle.
The Contract
After seeing an advertisement placed in Auto Trader by you for the sale of the above vehicle, our client arranged with you to view the vehicle on 1 September 2016. Your advertisement described the vehicle as follows:
“Excellent condition throughout. APR software modified for over 1 year, runs beautifully”.
Our client test drove the vehicle on 1 September 2016, during which you confirmed that the vehicle had “no problems”. Following the test drive our client agreed to purchase the car for the sum of £17,200 and paid you a deposit of £X.
On 3 September 2016 our client paid you the balance of the contract sum and collected the vehicle.
Vehicle faults
Following the sale to our client, it became clear during the drive home that there was a serious problem with the vehicle. Our client initially heard a very loud warning alarm and the centre console flashed up with a warning of a “Gearbox Malfunction”. The car then lost all power for a minute before resuming. A few minutes later, the same warning happened again and the car repeatedly lost power. This happened three further times during our client’s journey home.
Our client subsequently spoke to a mechanic who had previously worked for Audi, who plugged a laptop into the vehicle and ran diagnostic tests. The tests revealed that the vehicle suffered from a fault not uncommon to Audis manufactured in that year, whereby the vehicle believes that the clutch is about to fail so it cuts all torque from the engine in order to protect the clutch.
The diagnostic test also revealed that this error message had occurred a total of 14 times, with the first occurrence having happened on 18 August 2016. It is therefore clear that this error had been experienced by you ten times prior to our client purchasing it. A copy of the diagnostic test screen print is enclosed.
Misrepresentation
It is therefore clear that your representations to our client that the vehicle was in excellent condition and was running beautifully were false. These representations were made to our client either fraudulently or recklessly, insofar as you did not care whether they were true or false. Our client relied on your representations when entering into the contract for the purchase of the vehicle, and as a result has suffered loss.
Loss
As a result of your misrepresentation, our client has suffered a financial loss. This is quantified as the cost of repair, in the likely sum of £2,500. Our client is now seeking to recover this sum from you.
Court Proceedings
Please would you therefore arrange to pay to us the sum of £2,500 to this firm within the next seven days, in default of which we are instructed to issue court proceedings for recovery of the said sum together with all interest and costs. Please note our bank account details below or alternatively please make cheques payable to
XXX
We look forward to hearing from you.
Yours faithfully
XXX
And reply from seller:
Dear Sirs,
reference XXX
Further to your letter I completely refute that I in any way misrepresented the vehicle in question, in common with most people I have no idea how a modern car works and find the sheer complexity of the electronic and control systems baffling to use and a complete mystery. Like any modern car when started, numerous (warning?) lights come on and then go off, I assume the warning light that you refer to did the same, as it presumably wasn’t on when your client and his mechanic conducted a thorough inspection of the vehicle, it was and still is my honest opinion, that the vehicle was in “excellent condition”.
I would also state that the sale advertisement was placed on the 8th of August, which prior to when any alleged fault is supposed to have occurred, furthermore as I am not the only driver, and given that we do not have the benefit of a diagnostic laptop or any friends that can operate one, how was I supposed to know that there might be a problem, and given your client brought a mechanic and spent almost an hour examining the vehicle without finding fault, I reiterate, it was my honest opinion that the vehicle was in “excellent condition”.
Regarding the first paragraph of your letter “The Contract” the only contract I have knowledge of is the attached receipt “sold as seen” and once again it was my honest opinion that the vehicle was in “excellent condition”.
Best regards,
Dear Sirs,
reference XXX
Further to your letter I completely refute that I in any way misrepresented the vehicle in question, in common with most people I have no idea how a modern car works and find the sheer complexity of the electronic and control systems baffling to use and a complete mystery. Like any modern car when started, numerous (warning?) lights come on and then go off, I assume the warning light that you refer to did the same, as it presumably wasn’t on when your client and his mechanic conducted a thorough inspection of the vehicle, it was and still is my honest opinion, that the vehicle was in “excellent condition”.
I would also state that the sale advertisement was placed on the 8th of August, which prior to when any alleged fault is supposed to have occurred, furthermore as I am not the only driver, and given that we do not have the benefit of a diagnostic laptop or any friends that can operate one, how was I supposed to know that there might be a problem, and given your client brought a mechanic and spent almost an hour examining the vehicle without finding fault, I reiterate, it was my honest opinion that the vehicle was in “excellent condition”.
Regarding the first paragraph of your letter “The Contract” the only contract I have knowledge of is the attached receipt “sold as seen” and once again it was my honest opinion that the vehicle was in “excellent condition”.
Best regards,
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