Another Caveat Emptor Thread - with a slight twist

[Burwood]

JustinP1 said:

chriswg said:

Let's see if he is man enough to meet me and talk through the case in front of a mediator.

It'll be on the phone.

IMHO mediation will also be your best bet here.

Due to the issue I mention in the last para of my post above, if this case runs through to a hearing with the facts as I understand them today and a judge who sees it the same way, I think the fact that you had a mechanic with you at the sale will nullify that you relied upon the seller's representation, as in effect, you relied upon your mechanic's opinion.

But he doesn't sound like a mechanic and is a friend with no qualifications. It's not like he has an audi garage check it over.

[walm]

JustinP1 said:

I think the fact that you had a mechanic with you at the sale will nullify that you relied upon the seller's representation, as in effect, you relied upon your mechanic's opinion.

But doesn't the key remain the ECU evidence.
The mechanic didn't check the ECU, which maybe a mistake on the part of the mechanic, but that doesn't stop what the seller did being misrepresentation does it?

The buyer relies on all the info not just one part of it.

[JustinP1]

walm said:

JustinP1 said:

I think the fact that you had a mechanic with you at the sale will nullify that you relied upon the seller's representation, as in effect, you relied upon your mechanic's opinion.

But doesn't the key remain the ECU evidence.
The mechanic didn't check the ECU, which maybe a mistake on the part of the mechanic, but that doesn't stop what the seller did being misrepresentation does it?

The buyer relies on all the info not just one part of it.

I see the point you make but consider:

Attwood v Small

http://www.bailii.org/uk/cases/UKHL/1838/J60.html

Short precis - if the buyer has an agent check the validity of the statement of the seller, then he has not relied upon it.

So, the seller can be lying through his teeth, but if the OP employed an agent to check if the car was 'running beautifully' then he did not rely upon the statement of the seller. If he didn't rely upon the statement, it did not falsely induce him into buy the car.

Ironically, if the OP warned the seller that he'd get a mechanic to check it, but the mechanic didn't turn up, then the misrepresentation would stand. This comes down to the exact status of the OP's mechanic/friend.

Edited by JustinP1 on Wednesday 5th October 17:41

[walm]

JustinP1 said:

Short precis - if the buyer has an agent check the validity of the statement of the seller, then he has not relied upon it.

Fair enough, I guess that I was hoping for the OP's case he might be able to say that the agent only checked SOME of the seller's statements!

[anonymous-user]

JustinP1 said:

I see the point you make but consider:

Attwood v Small

http://www.bailii.org/uk/cases/UKHL/1838/J60.html

Short precis - if the buyer has an agent check the validity of the statement of the seller, then he has not relied upon it.

So, the seller can be lying through his teeth, but if the OP employed an agent to check if the car was 'running beautifully' then he did not rely upon the statement of the seller. If he didn't rely upon the statement, it did not falsely induce him into buy the car.

Ironically, if the OP warned the seller that he'd get a mechanic to check it, but the mechanic didn't turn up, then the misrepresentation would stand. This comes down to the exact status of the OP's mechanic/friend.

^ That's why I asked the question. However if it depends on the extent of the mechanics inspection - a mechanic for example only looking at the wheels will negate that part of the sellers description if its wrong not the rest. In this case the mechanic specifically didn't look at the ECU so that part of the misrepresentation stands as that. So, the condition of the engine/gearbox is still misrepresented and proved known about by the seller - even only as a warning light - that has not been communicated to the buyer and therefore the term 'drives beautifully' is wrong therefore the buyer still has a case.

[JustinP1]

walm said:

JustinP1 said:

Short precis - if the buyer has an agent check the validity of the statement of the seller, then he has not relied upon it.

Fair enough, I guess that I was hoping for the OP's case he might be able to say that the agent only checked SOME of the seller's statements!

It's a good point, and I guess that argument might stand up if the statement was:

"Clutch running perfectly" or "No engine warnings since the last service".

Then the argument would be that although the OP's agent checked other parts of the vehicle, that the agent specifically did not check the clutch or the presence of engine warnings because he relied on the statement. I'd suggest that hypothetical situation would be in the OP's favour.

However, if the statement is 'running beautifully', then the question is "Did the OP employ an agent to check the car was 'running beautifully'?" and unless more facts emerge otherwise it's difficult to consider any position other than he did. Ergo, he did not rely on the statement.

As derivative and tiny this point seems, if the claim gets to this point IMHO the whole claim hinges on this.

Edited by JustinP1 on Wednesday 5th October 17:58

[eldar]

JustinP1 said:

As derivative and tiny this point seems, if the claim gets to this point IMHO the whole claim hinges on this.

Edited by JustinP1 on Wednesday 5th October 17:58

The 'mechanic' was paid, rather than just a mate. Thus a more professional check on the buyers behalf. Reinforces your conclusion, I think.

[Flooble]

Burwood said:

Chris- have you looked closely at various Audi Forums using the car reg and his name to see if he posted something about the fault. I have a strong feeling the proof is out there on the inter web
. were the cars reg plate hide on the advert. You can use certain apps to search the web for a pic of the actual car. search his Facebook account.
...

Was this what you were thinking of? https://www.tineye.com/

[anonymous-user]

Flooble said:

Burwood said:

Chris- have you looked closely at various Audi Forums using the car reg and his name to see if he posted something about the fault. I have a strong feeling the proof is out there on the inter web
. were the cars reg plate hide on the advert. You can use certain apps to search the web for a pic of the actual car. search his Facebook account.
...

Was this what you were thinking of? https://www.tineye.com/

Good idea it'll be on there somewhere as a 'how do I fix this' And replies saying 'get codes wiped and sell it denying all knowledge'

[Red Devil]

Flooble said:

Burwood said:

Chris- have you looked closely at various Audi Forums using the car reg and his name to see if he posted something about the fault. I have a strong feeling the proof is out there on the inter web
. were the cars reg plate hide on the advert. You can use certain apps to search the web for a pic of the actual car. search his Facebook account.
...

Was this what you were thinking of? https://www.tineye.com/

Not sure how that helps. TinEye needs an image address to find the pic.*

Also, TinEye looks for the specific image you uploaded, not the content of the image. TinEye does not identify people or objects in an image.

A name/username (if you know the latter) search on Bookface or car forums is likely to be a better bet.

 * I tried it with one of my pics which has been posted on several car forums and got this - 0 Results.

[gobuddygo]

TinyEye a bit old hat when you have this - Google Image Search

[ModernAndy]

JustinP1 said:

It's a good point, and I guess that argument might stand up if the statement was:

"Clutch running perfectly" or "No engine warnings since the last service".

Then the argument would be that although the OP's agent checked other parts of the vehicle, that the agent specifically did not check the clutch or the presence of engine warnings because he relied on the statement. I'd suggest that hypothetical situation would be in the OP's favour.

However, if the statement is 'running beautifully', then the question is "Did the OP employ an agent to check the car was 'running beautifully'?" and unless more facts emerge otherwise it's difficult to consider any position other than he did. Ergo, he did not rely on the statement.

As derivative and tiny this point seems, if the claim gets to this point IMHO the whole claim hinges on this.

Edited by JustinP1 on Wednesday 5th October 17:58

I think you've made a number of really strong points and highlighted a relevant case. I do wonder though, in a court, if it can be established through the fault codes that the seller was likely to have known of the fault, is there then a difference between there simply being a fault with the car and the car being deliberately misrepresented? i.e. not just proving the fault was present (an issue which your mechanics check may nullify) but showing the buyer was hiding the fault where it is possible for a professional to miss it.

[chriswg]

Some good comments so thanks for all the input so far.

The point about the mechanic is an interesting one. As I mentioned, he drove the car on the test drive and had a look at the tyres / brakes e.t.c. He didn't inspect anything under the bonnet and certainly didn't check the ECU codes. The only way this could have been diagnosed was if we had gone for a longer test drive and caused the error code to come up, or had the cable and laptop to be able to plug into the car but those are quite specialist items.

There is a really good chance others test drove this before I did and pulled out when the errors came up. Would be great if one of those stumbled on this thread!

[Burwood]

The Misrepresentations Act 1967 is the OPs friend i believe. NB: It does not matter if the sellers representations were innocent or even believed to be true when he made them. All that matters is that there was reliance by the buyer (and there was) and that a fault existed. If he can prove the seller knew (Malicious) then the entire deal can be unwound. If innocent, damages apply.

I think the reliance on a mechanic absolving the seller is completely wrong! Firstly, the guy was a back yard spanner turner. Did the OP rely on him, well yes insofar as the tyres were good, the brakes were good, paint, interior. Particularly resprays. He didn't get involved in code reading. It was a basic inspection. Code reading requires specialist tools and he did not carry out such checks and as such there is zero reliance on his inspector friends. Nor will the law penalise him for not carrying out such checks. The OP had relied on a misrepresentation. The Act states clearly that even if the seller made the comments in good faith, he is still liable for a fault. He never should have said it runs beautifully when it does not. This coupled with dates and timing of the fault being highly suspect.

[Burwood]

added- looking at the written(seller) response, he had landed himself in it by saying he still believes 'excellent condition'-the Act does not care what he thinks to be true or innocent. I would also be stating that it was not a 'thorough' inspection. the inspection was for body damage/accident repair etc. That code reading is a specialist job and he did not do that or have the equipment, i.e no third party reliance. The OP states the inspector 'did not lift the bonnet'. So no mechanic reliance. same as if he never had any inspection.

[eps]

Hmm... I think if I'd been spending 17k on a car I'd have taken it for a bit more of a test drive. E.g. A road / Dual Carriageway and at least until the oil in the engine was up to temp. Especially if from a private buyer.

[Vaud]

eps said:

Hmm... I think if I'd been spending 17k on a car I'd have taken it for a bit more of a test drive. E.g. A road / Dual Carriageway and at least until the oil in the engine was up to temp. Especially if from a private buyer.

I think the OP is aware of the benefit of hindsight and is looking for constructive legal advice.

[Burwood]

eps said:

Hmm... I think if I'd been spending 17k on a car I'd have taken it for a bit more of a test drive. E.g. A road / Dual Carriageway and at least until the oil in the engine was up to temp. Especially if from a private buyer.

eps posted last month -don't tell me you were going to rely on internet advice rather than get a full inspection

"Does anyone own one of these with more than 100k miles on it? (110,000 to be precise) Anything a prospective buyer should look for or ask? It seems to have had Full Audi Dealer Servicing done on it, so guess it's had everything done on it that needs to be done.. One previous owner.

It's on Autotrader and PH Classifieds..

[eps]

Burwood said:

eps said:

Hmm... I think if I'd been spending 17k on a car I'd have taken it for a bit more of a test drive. E.g. A road / Dual Carriageway and at least until the oil in the engine was up to temp. Especially if from a private buyer.

eps posted last month -don't tell me you were going to rely on internet advice rather than get a full inspection

"Does anyone own one of these with more than 100k miles on it? (110,000 to be precise) Anything a prospective buyer should look for or ask? It seems to have had Full Audi Dealer Servicing done on it, so guess it's had everything done on it that needs to be done.. One previous owner.

It's on Autotrader and PH Classifieds..

Before buying or test driving

[JustinP1]

Burwood said:

The Misrepresentations Act 1967 is the OPs friend i believe. NB: It does not matter if the sellers representations were innocent or even believed to be true when he made them. All that matters is that there was reliance by the buyer (and there was)...

You can't unpick a situation and see how it fits into the law by general feeling, or hunch you have to have a specific claim.You can't come to court and say "he told me lies".

For the claim to be successful the OP will have to show exactly which statement is misrepresentative and that he relied upon it. In this case, the statement which is misrepresentative is 'running beautifully'.

So, the question is did the OP take the seller to his word, or, did he carry out his own investigations as to the validity of the claim?

He didn't trust the seller's opinion, he got his own opinion from a mechanic (who I understand he paid) to check whether the car was indeed 'running beautifully', or not, and case law outlines that it is seen that in this scenario the buyer relies on the investigations of his agent NOT the statement of the seller. If the OP's agent missed that for some reason it was not 'running beautifully', that is unfortunate, however in law, it is the mechanic's professional opinion the OP has relied upon to enter into the sale.

The OP does have a counter argument (and I'm sure there is a case law to reference for this) whereby if a statement is made, and subsequently the status quo changes and that statement becomes false, that the seller would have a duty to disclose.

The OP's argument might be that (as long as he can prove the seller knew of the fault) the initial action was that the seller would in law have to disclose that his statement was no longer true. Had the seller done this, the argument would follow that he would not have even viewed the car, or, that specific checks would have been done regarding the clutch.

I am hypothesising here as on the day, depending on the statements of claim, and how the Judge directs himself through the arguments, he/she will make a decision accordingly. The statements of claim might not include these arguments and the Judge may not think of them, and in any case it will be their decision to weigh up which of the principles are paramount.

My main point to the OP is that the professional mechanic's opinion of the car significantly weakens his position in proving misrepresentation, and really, the solicitor should have considered that - presuming the OP informed him of that fact.