A Mini Adventure.......

[iancognito]

Not sure whether this is good or bad yet so some opinions would be welcome.

OH bought a new Mini earlier in the year, definitely a Friday afternoon model, been in the garage more than out in the 6 months he's had it, not only that but the level of service has been abysmal despite him speaking to the garage owner twice and being assured customer service is their priority.

So the car is 6 months old and has been in the garage for the last 4 weeks, with no update, in the end he phoned them up and told them to keep it and cancel the agreement , I didn't think he had much chance of success, however, they have phoned him today and said they will take back the car and return the deposit and are currently negotiating what is to be done on his repayments.

Out of the 6 months payments we have made, what do you think we should get back and what rights do we have?

[stevokenevo]

Re: A Mini Adventure.......

IMHO - If you get out the agreement without having to pay anything else - i'd jump at it...............

[iancognito]

Re: A Mini Adventure.......

Spoke to Consumer Direct today, my contract is with the finance company not the garage and basically the finance company are trying to penalise me for their breach of contract so I have to write and them and ask them to justify their costs - now, where have I heard that before?

[stevokenevo]

Re: A Mini Adventure.......

I thought that would happen, The finance company calculates and adds interest on at the start, so it would not be as simple as handing back the car and ripping up the agreement

All i can say is good luck!!!

[Guest]

Re: A Mini Adventure.......

Did you buy this car on Hire Purchase or a standard credit agreement?

[iancognito]

Re: A Mini Adventure.......

It's a hire purchase agreement.

Are you thinking I should be paying half?

[Guest]

Re: A Mini Adventure.......

Nope.

This is good news.

Because this is an HP agreement then your rights in this case are under the Supply of Goods (Implied Terms) Act and are against the finance company. You do not have Sale of Goods Act rights against the dealer, as you don't have a direct contract with the dealer. Effectively, the dealer has sold to the HP company, who have then hired the vehicle to you with an option to purchase it from them at the end. Therefore your contract is solely with the HP company and the legislation to be used is as above.

This Act is broadly similar to the Sale of Goods Act in its terms in that it says that all goods must be of satisfactory quality, fit for all normal purposes and as described.

It differs from the Sale of Goods Act in its remedies. Basically the two possible remedies are rejection and damages. However, where the Sale of Goods Act only gives a short time to reject, this is not necessarily the case in HP contracts. You can repudiate the contract at any time until affirmation has taken place. Affirmation is basically legal acceptance of the vehicle, but unlike the Sale of Goods Act legal acceptance does not take place after the passing of a certain amount of time. To affirm the contract, you actually have to do something which communicates to the HP company that you have accepted the car as yours.

Basically unless you have done something that informs the HP company that you are happy to keep the car in the condition it is in, you can repudiate the contract as the car is not of satisfactory quality or fit for its normal purposes.

If you have not done so already, write to the HP company, listing the faults and the history of the car and stating that the vehicle is therefore not of satisfactory quality or fit for its purpose and does not comply with the terms of the Supply of Goods (Implied Terms) Act. You are repudiating the contract for this vehicle and you wish them to collect it from you by (date) at which point your payments to them will cease. Furthermore, you will also be claiming a refund of the payments made for the vehicle to date.

You have a contract with the HP company and they are the ones liable to you for the car they have supplied you with.

Given that the car has been back to the dealer more than once and if the HP company claim that you have affirmed the contract by accepting any previous repairs you would ultimately have to go to court if you still wish to reject rather than negotiate for damages. While the law can technically be interpreted that you can terminate until affirmation has taken place "the hirer loses his right to termination only when he becomes aware of the defect in the goods and then affirms the contract, or waives his right to terminate, or is estopped from relying on his right to terminate."

For some bedtime reading, see Jackson v Chrysler Acceptances Ltd 1978

[iancognito]

Re: A Mini Adventure.......

Thank you

Broadly what Consumer Direct told me but you put it so much more eloquently.

I will write tonight and let you know what they come back with.

[iancognito]

Re: A Mini Adventure.......

Letter attached, if anyone could have a browse and comment accordingly it would be much appreciated.

Ta muchly

[WendyB]

Re: A Mini Adventure.......

Seems good to me. Short and to the point, covers all the relevant stuff from what i can see.

[iancognito]

Re: A Mini Adventure.......

Their reply attached, much as I expected really, any comments would be gratefully received, I'll post my reply in a bit.




letter removed temp

[Guest]

Re: A Mini Adventure.......

You did not make a "request to reject" you have demanded it as is your right and therefore, his paragraph at the end of page one is meaningless. Much the same in fact as his weak effort at suggesting that his company pride themselves on blah blah blah.

Affirmation does not occur on it's own, you must do something to affirm acceptance. There are 3 ways in which you as a buyer will be regarded as having "accepted" goods; if you tell the seller that you accept; if you retain the goods beyond a reasonable time without telling the seller that you wish to reject them; or if you do an act which suggests that the seller no longer owns the goods (for example, if you had taken the car to another garage for repair.)

Acceptance prevents a buyer rejecting goods for breach of contract, except that in the case of HP agreements, this is not as clear cut.

I have pasted below the summary of the case I mentioned above. There are some interesting parallels, I think you will agree.

Jackson v Chrysler Acceptances Ltd [1978] RTR 474

Court of Appeal (Civ Div)

SALE OF GOODS - BREACH OF THE CONTRACT - REMEDIES OF THE BUYER - BREACH OF CONDITIONS AND WARRANTIES - WARRANTIES - MEASURE OF DAMAGES - BREACH OF WARRANTY OF QUALITY - FAIR MARKET PRICE FOR GOODS HAD DEFECTS BEEN KNOWN

Summary

The plaintiff entered into a hire purchase agreement with the defendants to buy a new car, the total hire purchase price being £1,976. He made it clear, before buying it, that he required the car for a holiday in France a few months later, and he hoped to sort out any ‘teething troubles’ before the holiday. The car suffered from many defects, some serious, before, after and during the holiday. The third party dealers carried out many of the repairs, free of charge, under the guarantee. The plaintiff, both before and after his holiday indicated to the dealers, as agents for the defendants, that he wished to return the car in exchange for a return of the money already paid, but his requests were refused. He brought an action in the county court alleging the car had never been of merchantable quality, therefore the defendants were in breach of the hire purchase agreement and he was entitled to a refund of his money. The defendants denied the breach and claimed that in any event the plaintiff had affirmed the contract by paying the instalments for seven months, using the car for at least 6000 miles despite its condition and allowing it to be repaired free of charge by the dealers. At the hearing the judge told the plaintiff that the contract could not be rescinded because of the length of time since the purchase of the car, and that instead his claim lay in damages. The damages awarded were £200 for the defects in the car and £75 for the detrimental effect on the plaintiff’s holiday. The plaintiff appealed against the amount of damages awarded:

Held allowing the appeal, in order to assess damages it was necessary to assess what the fair market price would have been if the lack of merchantability and lack of suitability for purpose had been known to the plaintiff when the car was purchased. Taking all the factors into account, including the repairs which had been carried out by the dealers free of charge, and the degree to which the holiday had been spoiled, the damages awarded would be £750. The possibility of whether the contract could be rescinded was not considered as the plaintiff stated that he was no longer seeking a rescission of the contract.

You should write back stating that, should they not comply with your previous instructions, you will seek redress through the court and if it is deemed that affirmation has taken place, you will seek damages as in Jackson v Chrysler Acceptances Ltd and your claim at that time will include court costs and interest and if he is in any doubt as to what to do next, then he should place your letter before his solicitors without delay.

[iancognito]

Re: A Mini Adventure.......

I'm getting a bit mad now, and when I get mad I also tend to get a little less detached and a little more sarcastic, so my reply is below, any comments/amendments would be gratefully received.

I write regarding your letter dated 14th September 2007, received 22nd September.

May I remind you that a duplicate offer, in the guise of early settlement, has already been refused by myself on the advice of Consumer Direct (formally Trading Standards).

To clarify the situation for you, this car has been constantly booked in for, or actually in for repair from the date I took delivery, I have never accepted the vehicle, either formally or otherwise as it fails to meet the legal requirements under the terms of theSupply of Goods (Implied Terms) Act 1973.

The mileage you have listed, which you claim proves acceptance of the car, includes a proportion of mileage for travelling to and from the garage for repairs and, one assumes, a proportion of test driving following repairs. I accept some of the mileage is personal, in between visits to the garage but then why would I buy a car if not to drive it? In addition the courtesy cars provided for my use have all been lower specification and older than my own. I could have saved myself a lot of expense by buying an older, lower specification car had I wanted one. However, I am willing to pay this mileage charge and any other justifiable costs in relation to this matter.

I would have been happy to return the car immediately upon receipt as it has never been the “punchy engine, crisp transmission and lively acceleration make the MINI Cooper S an all-round star” I was promised by BMW Mini, however I felt obliged to provide David Holmes every opportunity to remedy the problems, which they have failed to do, in fact the problems have been exacerbated.

As far as the car being ready for collection is concerned, if you check with David Holmes, you will find the car was accepted back by them over a week ago and the courtesy car subsequently returned. I have also transferred the registration plate back onto a retention slip with DVLA at my own expense. I will forward the V50 document to yourselves once the matter has been resolved and funds paid in full.

I am quite happy for this matter to be resolved in court should you be unwilling to make a satisfactory offer, if it is deemed that affirmation of the contract has taken place, I will be seeking damages as in Jackson v Chrysler Acceptances Ltd and the claim will include court costs and interest if you are unsure of the consequences, I suggest you put the matter in the hands of your solicitor without delay.

I look forward to your prompt reply.

[Amy]

Re: A Mini Adventure.......

I write regarding your letter dated 14th September 2007, received 22nd September and I note your points with interest. However I would like to make clear that I did not make a ‘request’ to reject. I have demanded it as is my right.

I also take great issue with your comment in the first paragraph of the second page of your letter “as you have covered 4992 miles over a period of 7.5 months I am of the opinion that you have affirmed our agreement’.

There are 3 ways in which I as a buyer will be regarded as having "accepted" goods; if I tell the seller that I accept; if I retain the goods beyond a reasonable time without telling the seller that I wish to reject them; or if I perform an act which suggests that the seller no longer owns the goods (for example, if I had taken the vehicle to another garage for repair.). I have done none of these things and as such I am perfectly entitled to repudiate the contract at any time as this vehicle also fails to meet the legal requirements under the terms of the Supply of Goods (Implied Terms) Act 1973.

As you are aware this vehicle has been constantly booked in for, or actually in for repair from the date I took delivery. The mileage, which you claim proves affirmation, includes a proportion of mileage for travelling to and from the garage for repairs and, one assumes, a proportion of test driving following repairs. I accept some of the mileage is personal, in between visits to the garage but then why would I buy a car if not to drive it? In addition the courtesy cars provided for my use have all been lower specification and older than my own. I could have saved myself a lot of expense by buying an older, lower specification car had I wanted one.

I would have been happy to return the car immediately upon receipt as it has never been the “punchy engine, crisp transmission and lively acceleration make the MINI Cooper S an all-round star” I was promised by BMW Mini, however I felt obliged to provide David Holmes every opportunity to remedy the problems, which they have failed to do, in fact the problems have been exacerbated.

As far as the car being ready for collection is concerned, if you check with David Holmes you will find the car was accepted back by them over a week ago and the courtesy car subsequently returned. I have also transferred the registration plate back onto a retention slip with DVLA at my own expense. I will forward the V50 document to yourselves once the matter has been resolved and funds paid in full.

I am quite happy for this matter to be resolved in court should you be unwilling to make a satisfactory offer and if it is deemed by a court that affirmation of the contract has indeed taken place, I will be seeking damages as in Jackson v Chrysler Acceptances Ltd and the claim will include court costs and interest.

If you are in any doubt as to what action to take now, I suggest you put the matter in the hands of your solicitor without delay.

I look forward to your prompt reply.

[iancognito]

Re: A Mini Adventure.......

OK Mini's reply attached.

I'm away now until Thursday but if anyone has any POC ideas for the end of the week they would be much appreciated.....:okay:

Thanks guys xxxx




letter removed temp