Private Car Sale - Legal advice please???
Discussion
MatrixXXx said:
I always write "sold as seen" on my receipt to the buyer. after all something could go wrong with a car at any time, Its up to the buyer to thoroughly test the vehicle , or get someone like the AA to inspect it . it would save you money in the long run.
Indeed but "sold as seen" has no basis in law as such. The law is clear on a private sale - Caveat Emptor applies.The exception is the misrepresentation act.
For completeness:- certain parts of the Sale of Goods Act 1979 apply to a sale by a non business seller. The implied terms as to quality and fitness do not apply, but terms as to title and sale by description do. In addition to the Misrepresentation Act, the common law as to misrepresentation applies in respect of all sales.
philario said:
Hi all, me again!
Just a quick update, I've now received a 'Notice of Proposed Allocation to the Small Claims Track'
I take it I've just got to fill the questionnaire in and return it?
You're at the directions stage. The claimant will have received a questionnaire too. The next stage is allocation. If the hearing is not slated for your nearest County court (as you are the defendant this should be done routinely) it is well worth asking for it to be transferred, This will be an advantage if the claimant lives far enough away as they may then not bother to appear. They will have to request it be heard in their absence.Just a quick update, I've now received a 'Notice of Proposed Allocation to the Small Claims Track'
I take it I've just got to fill the questionnaire in and return it?
Note that the court may well propose to decide the case 'on the papers' without a hearing. This is to save time and is quite normal. In which case it is essential to have your ducks in a row and be very clear and concise in your argument(s) because you will not have the opportunity to say anything else. Not being present means the judge will have no additional opportunity of forming an opinion about your credibility. The spoken word often has more power than the mere written one.
Red Devil said:
philario said:
Hi all, me again!
Just a quick update, I've now received a 'Notice of Proposed Allocation to the Small Claims Track'
I take it I've just got to fill the questionnaire in and return it?
You're at the directions stage. The claimant will have received a questionnaire too. The next stage is allocation. If the hearing is not slated for your nearest County court (as you are the defendant this should be done routinely) it is well worth asking for it to be transferred, This will be an advantage if the claimant lives far enough away as they may then not bother to appear. They will have to request it be heard in their absence.Just a quick update, I've now received a 'Notice of Proposed Allocation to the Small Claims Track'
I take it I've just got to fill the questionnaire in and return it?
Note that the court may well propose to decide the case 'on the papers' without a hearing. This is to save time and is quite normal. In which case it is essential to have your ducks in a row and be very clear and concise in your argument(s) because you will not have the opportunity to say anything else. Not being present means the judge will have no additional opportunity of forming an opinion about your credibility. The spoken word often has more power than the mere written one.
It was the case that MCOL and the Salford bulk processing centre will transfer the claim at this stage to the home court of the Defendant. OP - check that they have done, and if not, request that it is. Otherwise, you'll be trekking to wherever their home court is.
The only other consideration at this stage is whether as others have mentioned that you move to strike out the claim on the basis that it has no real prospect of success. The other option as has been mooted previously is making it clear to the Claimant that their claim has no prospect of success, and reminding them that you will be seeking costs of coming to court.
On the one hand (unless it is your job) litigation is just a bloody hassle, and you'll have to stop what you're doing to come to court and that might be a day which is pretty inconvenient. So, if you can avoid that, so the claim is actively discontinued, or they realise that they have to pay another couple of hundred quid to get to a hearing they cut their losses, then that's perfect.
However, on the other hand, your day in court will not be as stressful as you think. It's not like on TV. You'll highly likely be in Judge's chambers which is merely a medium size room with a set of desks, the Judge on one side and the Claimant and Defendant on the other. The Judge will (usually) be clued up on the issues of the case, and will handle proceedings and obtain any facts he needs from the parties to make a decision.
It's a shame that your buyer will be wasting about £400 in court fees, but, you are safe in the knowledge that you can roll up to court in 3 months time, and it's pretty unconscionable that you will lose.
Surely you mean "pretty unlikely that you will lose", Justin.
OP, you are unlikely to lose on the facts that you have stated in this thread (although in litigation nothing is certain except hassle). The only possible angle for the claimant is the term "excellent condition" in your advert, but a sensible Judge should regard that as mere puffery.
OP, you are unlikely to lose on the facts that you have stated in this thread (although in litigation nothing is certain except hassle). The only possible angle for the claimant is the term "excellent condition" in your advert, but a sensible Judge should regard that as mere puffery.
And to reiterate what I said in your (OP's) other thread, between now and the court date, both sides will be asked if they are willing to use mediation - via a court-appointed, trained third party. If you both agree (you don't have to), the mediator will set a day+time to call each of you in turn and then discuss the details, to and fro, and try to find out if there's a mutually agreeable middle ground.
The mediator may appear to pressurise you (it isn't really pressure but it seems that way) by suggesting possible outcomes that are far worse than a middle ground figure. These can sound scary, especially if you think that he's hinting that your case will fail. He'll be doing the same to the other party, too. It's just up to you to decide whether and how you settle. Or not. For some people, even when they are 100 percent in the right, a couple of hundred quid is preferable to doubt/hassle.
You are not obliged to settle, though, and if the claimant's case is as poor as it seems, refusing to settle is fine and proceedings then go to court.
The mediator may appear to pressurise you (it isn't really pressure but it seems that way) by suggesting possible outcomes that are far worse than a middle ground figure. These can sound scary, especially if you think that he's hinting that your case will fail. He'll be doing the same to the other party, too. It's just up to you to decide whether and how you settle. Or not. For some people, even when they are 100 percent in the right, a couple of hundred quid is preferable to doubt/hassle.
You are not obliged to settle, though, and if the claimant's case is as poor as it seems, refusing to settle is fine and proceedings then go to court.
Breadvan72 said:
Surely you mean "pretty unlikely that you will lose", Justin.
OP, you are unlikely to lose on the facts that you have stated in this thread (although in litigation nothing is certain except hassle). The only possible angle for the claimant is the term "excellent condition" in your advert, but a sensible Judge should regard that as mere puffery.
I see your point BV - however, the tide is firmly pressed against the Claimant, and I'd daresay the Judge will have decided the very likely outcome from skimming the papers and the Claimant would have to do huge amount to convince a Judge to do as they're asking, that is, to order a total refund on a second hand car they inspected and test drove. OP, you are unlikely to lose on the facts that you have stated in this thread (although in litigation nothing is certain except hassle). The only possible angle for the claimant is the term "excellent condition" in your advert, but a sensible Judge should regard that as mere puffery.
I agree that there is the 'randomness' of litigation, more so at the bottom end where this may end up before a Deputy District Judge, but it would take a very strange decision to interpret 'excellent condition' as anything other than puff, especially when the non-expert background of the OP is taken into account. Such a statement was surely not relied upon.
If we imagine such an order being made as is requested by the Claimant, it is effectively arguing that in the situation of an entirely innocent non-professional car seller who allows full checks to be made to a vehicle, if a few hundred miles down the road a fault occurs that the seller is liable to have the car broken back 3-4 months later and obliged to give a full refund. I'd say that there would have to be clear misrepresentation there to make that a legally equitable situation and to override caveat emptor. Hence my 'unconscionable' remark. Maybe I'll revise that to 'highly unlikely'...
IMHO the biggest scope of risk to the OP is the allegation that the OP said he had it checked by a mechanic. The Claimant may very much be mistaken, however I have experienced parties over time elaborate their recollections and making something out of nothing, and elaborating to 'win' as oppose to tell the truth.
Edited by JustinP1 on Monday 20th October 13:07
cars1993 said:
She cant do anything as its a private sale.
Whilst that may be true on the facts of this case, it is unwise to assert this as a generalisation. One of the internet pub myths is that a buyer from a non business seller can never have any remedy in respect of the sale. Thus is not the case, as the seller must have title to sell the goods, and must not make any misrepresentation about them. A non business seller is not subject to the statutory implied terms as to quality and fitness of goods.As BV has said, it's not as clear cut as that at all, and it's certainly possible to succeed in a claim depending on the circumstances.
For example, a car advertised as a 1.8 ending up being a 1.6. Or for example, a car advertised with 'electronics in full working order' and 'electric windows' and finding the electric windows did not work could give rise to a totally legitimate claim.
For example, a car advertised as a 1.8 ending up being a 1.6. Or for example, a car advertised with 'electronics in full working order' and 'electric windows' and finding the electric windows did not work could give rise to a totally legitimate claim.
Not sure where the legal position is about selling a de-DPFd diesel privately, whether you declare the fact (and note it on the receipt) or keep shtum in the hope the buyer doesn't ask, only for it to then fail an MOT or be picked up at service that it is missing?
From a garage I suspect SOGA would apply as the vehicle would not be fit for purpose, so you could require them to put it right or compensate you accordingly. You'd have to convince the courts it hadn't been done since you bought it of course....
From a garage I suspect SOGA would apply as the vehicle would not be fit for purpose, so you could require them to put it right or compensate you accordingly. You'd have to convince the courts it hadn't been done since you bought it of course....
Muncher said:
You have to wonder whether giving people ready access to the County Courts without some form of pre-claim advice beforehand is a good thing if it allows badly, or non-advised people to waste everyone's time and money on claims with little or no prospect of success.
There used to be a thing called Green Form Legal Aid for initial consultations, but that was scrapped long ago. The tax cost of providing advice to all potential claimants would be high.Breadvan72 said:
There used to be a thing called Green Form Legal Aid for initial consultations, but that was scrapped long ago. The tax cost of providing advice to all potential claimants would be high.
Maybe once the claim forms have been submitted they should be reviewed by a junior lawyer and the claimant should be told their case isn't arguable and maybe they should reconsider or take further advice before proceeding.Gassing Station | Speed, Plod & the Law | Top of Page | What's New | My Stuff