Used car fault just after purchase

[SirEdmund]

I purchased a used car from a Trader less than two weeks ago. The car has a fault which the Trader is saying wasn’t there before I purchased it, however due to the nature of the fault, which is an oil leak that requires the gearbox to come out to resolve, it’s very difficult to prove either way. I didn’t notice it when I looked at the car, but I’m not a mechanic.



The car has a warranty but it does not cover oil leaks or gaskets.



If it was a simple fix of £100 or thereabouts, I would take the hit, but the labour costs for a gearbox out job are considerable.



The Trader has offered to pay £100 towards the costs but having just laid out £16k for it, I just don’t have the money at the moment. I have offered to pay half of the costs, which I think is more than reasonable. So my question (at last) is, If I reject the car, do I have to take it back or will they have to arrange to pick it up ?



Thanks for any advice.



SirEdmund

[ostell]

Have a look at the Consumer Rights Act 2015. This gives you 30 days to reject the car and obtain a refund. Here's the CRA section 22 which explains the rights. Here's a Which guide. You will need to write to the dealer telling that you are rejecting the car as being unsatisfactory under the Consumer Rights Act and ask him to make arrangement to pickup the car and refund your money within 14 days. The dealer does NOT have the right to offer a repair, though he may insist that is the case. I presume that there is no credit agreement in place. If there is then as the credit company are the owners of the car you write to them and copy the trader. Keep it all in writing and send by first class post and get a free certificate of Posting from a post office.

Have you got it in writing that he offered £100 to go towards fixing the problem?

[R0b]

If you are within the first 30 days, then the onus is on you to prove that the car was faulty at the time of sale. This is usually done by obtaining a third party report such as companies like the AA or DEKRA which explains the extent of the fault and perhaps whether it was likely that the fault was there at the time of sale.

On the face of it, you've only had the vehicle two weeks so it would seem strange (unless you have done something yourself) that an oil leak has suddenly come about.

Traders have to sell you a car that is of satisfactory quality and fit for purpose and the vehicle must also meet the description as advertised. Do you still have a copy of the advert? It is also common that before the car is handed to you, it would be expected that the trader carries out a pre-delivery inspection, which would satisfy the satisfactory quality aspect of their obligation. If you didn't receive a copy of this at the time of collecting the car and paperwork, then how can the trader prove that the oil leak wasn't there?

As Ostell has indicated, if the car is on finance then you would need to deal directly with the finance company as the car is legally owned by them and they are the supplier of the vehicle. It would also be helpful if you can tell us the age of the vehicle and its mileage on collection, though given the sum of money paid for it I presume it is relatively new?

[ostell]

The trader has offered to pay £100 to correct so this perhaps could be taken as an admission that there is a fault. If it is in writing

[davenewbergr]

If you are within the first 30 days, then the onus is on you to prove that the car was faulty at the time of sale.

I - hesitate to say this but - I think that's wrong. He has the right to reject the car within the first 30 days. At any time up to six months after purchase, defects are presumed as a matter of law to be intrinsic to the vehicle. From six months onward, defects are presumed not to have been intrinsic, viz. have developed after the sale.
If he rejects the car he has to stop using it.
He should check the government web page on consumer rights, and print out the relevant section and send it to the dealer and say he wants to reject the car and can he please have his money back. He has another 16 or so days in which to do that.

[des8]

Sorry davenewbergr but R0b is correct.
The wording of CRA 2015 Sec19 is
(14)For the purposes of subsections (3)(b) and (c) and (4), goods which do not conform to the contract at any time within the period of six months beginning with the day on which the goods were delivered to the consumer must be taken not to have conformed to it on that day.

Subsections referred to only apply to final right to reject/repair or price reduction (ie from 30 days after delivery of goods to 6 months after delivery)

If customer uses short term right to reject he could be required to show item was unsatisfactory when delivered

[ellingtj]

Let me take a different angle. I'm not seeing a requirement under the short term rejection to prove that there was/wasn't a fault at inception, implied or explicit. Yes I see that short-term rejection is excluded from the 6 months element but I don't believe this then automatically puts the consumer at the disadvantage mentioned by others. Is it not more of the case that the goods have failed to conform to the contract terms described in sections 9, 10, 11, 13 and 14 within the 30 days and a short term right to reject is now applicable, therefore no need to prove the fault was/wasn't present at delivery, as whether it was or wasn't is not of consequence, the right is not dependent on it?

[des8]

Let me take a different angle. I'm not seeing a requirement under the short term rejection to prove that there was/wasn't a fault at inception, implied or explicit. Yes I see that short-term rejection is excluded from the 6 months element but I don't believe this then automatically puts the consumer at the disadvantage mentioned by others. Is it not more of the case that the goods have failed to conform to the contract terms described in sections 9, 10, 11, 13 and 14 within the 30 days and a short term right to reject is now applicable, therefore no need to prove the fault was/wasn't present at delivery, as whether it was or wasn't is not of consequence, the right is not dependent on it?

You might not see the requirement, but the judges do

[R0b]

The way you should look at it is that the long-standing general rule is for the claimant to prove its case. As Des has pointed out, the burden of proof is reversed where the fault was realised between day 31 and day 180 and it is then the trader who must prove that the car conformed.

If Parliament had intended that the burden of proof should sit with the trader if the car was faulty within the first six months, (including the first 30 days) then it would have explicitly stated this. The fact that the CRA only mentions the right to repair, replace, price reduction or final right to reject implies that the onus is on the consumer to prove that it was faulty at the time it was purchased or when you took possession if they are to exercise the short term right to reject.

You could negotiate with the trader to see if they are prepared to split the cost 50/50 and if it turns out that the car was faulty, then they repay your half of the cost.

[ellingtj]

Umm, still not sure, also doesn't align with guides such as that from which? https://www.which.co.uk/consumer-rig...mer-rights-act

Willing to change my mind in the presence of case law, as alluded to, if you could oblige? In short, if there is a fault in the first 30 days then the goods are faulty and there is no burden on either party to prove whether the fault was there, or not, originally, as it is not of consequence, the goods are faulty. The consumer may have to demonstrate the goods are faulty but not as to when this started, whilst in the 30 day period.

Rob you second paragraph isn't clear. There is an explicit burden on the seller in the first six months except for the first 30 where burden is irrelevant.

[R0b]

Well, I am going to say that Which? are misleading and wrong. Take your pick from the links below, all of which confirm the burden of proof rests with the consumer within the first 30 days, and I have even attached the BIS Guidance (first link, on page 42) which clearly states at the bottom of that page that the reverse burden of proof does not apply to the short term right to reject.


https://www.businesscompanion.info/s...s-Sep-2015.pdf

http://www.longmores-solicitors.co.u...ights-act-2015

https://www.tozers.co.uk/6442-2/

https://www.retailmotorlaw.co.uk/ind...pany&Itemid=78

[des8]

Not case law , but this quote is taken from the explanatory notes which accompany the statute (my italics)
http://www.legislation.gov.uk/ukpga/...tes/division/3

Section 19
Subsections (14) and (15) provide that, if a breach of the statutory rights – for example a fault - arises in the first 6 months from delivery, it is presumed to have been present at the time of delivery unless the trader proves otherwise or this presumption is incompatible with the nature of the goods or the particular breach or fault. This applies where the consumer exercises their right to a repair or replacement or their right to a price reduction or the final right to reject. This does not apply where the consumer exercises the short-term right to reject.

[ellingtj]

Chaps, I understand the reverse burden of proof doesn't apply in the first 30 days but this isn't my argument, let's clearly state there are two burdens:
1. The goods fail to meet the requirements of the act
2. The goods fail to meet the requirements of the act when they were delivered

Burden 1 is always on the consumer.
Burden 2 can switch around
Rejection for full refund in the first 30 days only requires burden 1

The 'guidance for business' references Burden 2 in the first 30 days but it doesn't matter, if the goods were ok when delivered but go wrong within the first 30 days then the short term right to reject is still in play. From what I can see there is no AND statement in the first 30 days, i.e. the goods don't conform AND the they didn't when delivered, their state upon delivery does not seem to be of relevance.

Other law firms state inline: http://www.geldards.com/the-consumer...traders-1.aspx


However, we need case law for definitive interpretation, I have had a go through BAILII but have found nothing relevant to the discussion.

[R0b]

I'm sorry but I am struggling to follow what you are trying to get at.

Are you suggesting that a consumer has (or doesn't have) the short term right to reject if the goods conformed on delivery but subsequently failed afterwards yet within the first 30 days?

The 30 day period cannot be lost, except by expiration of time.

Is the above what you are referring to?

[ellingtj]

The consumer HAS a short term right (30 day) to reject goods (if they, the goods, do not meet the requirements in the CRA) regardless of whether they conformed upon delivery.