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Used car fault just after purchase

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  • #16
    Well then yes I agree with that statement. So now we have established the question, are you querying whether this position could be challenged in court?
    If you have a question about the voluntary termination process, please read this guide first, as it should have all the answers you need. Please do not hijack another person's thread as I will not respond to you
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    LEGAL DISCLAIMER
    Please be aware that this is a public forum and is therefore accessible to anyone. The content I post on this forum is not intended to be legal advice nor does it establish any client-lawyer type relationship between you and me. Therefore any use of my content is at your own risk and I cannot be held responsible in any way. It is always recommended that you seek independent legal advice.

    Comment


    • #17
      Nope, I was challenging the assertion in post #3 that there is an onus on the consumer, within the first 30 days, to prove the goods were faulty on delivery in order to reject. Whether they were or not is actually irrelevant to the short term right to reject, therefore no onus.

      Comment


      • #18
        Originally posted by ellingtj View Post
        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.
        Sec 19 (14) deliberately refers to "have conformed to it on that day." ie delivery day
        So as post 6 it is for consumer who rejects within first thirty days to show goods did not conform on delivery.

        Comment


        • #19
          Originally posted by ellingtj View Post
          Nope, I was challenging the assertion in post #3 that there is an onus on the consumer, within the first 30 days, to prove the goods were faulty on delivery in order to reject. Whether they were or not is actually irrelevant to the short term right to reject, therefore no onus.
          This comes back to my post about the general position of he who claims must prove. For background, the CRA's predecessor, the Sale of Goods Act 1979 stated that consumers good reject goods and obtain a refund within a reasonable time, but unfortunately 'reasonable time' was a question of fact and therefore the courts had given inconsistent judgments at times. If I remember, the SOGA actually stated that goods which were faulty within 6 months were taken not to conform at the time of sale.

          The CRA addressed some of the inconsistencies within the SOGA and other legislation combining it all together. Traders were concerned however that buyers could simply exercise their short term right to reject without question and obtain a refund which would be unfair and result in trader's losing money. A balance was struck in the CRA so that if the consumer wanted to reject the goods within the first 30 days, then the onus was on them to prove that it was faulty and anytime after that but within 6 months, the goods are deemed to be faulty from the time of sale and the trader has an opportunity to remedy the problem.

          Now strictly speaking, you are right in that goods could appear to conform at the time of sale, collection or delivery and it is almost in every circumstance that faults occur following the consumer taking possession of the goods, but in order to reject the goods, the consumer has to link it to one of the implied terms under the CRA e.g. satisfactory quality, fit for purpose, description of goods etc. and those implied terms link back to the time the sale contract was made, hence why I said the consumer must prove that the goods were faulty at the time of sale, and not for example, user error.

          Going back to post #13 of yours, you said that "The 'guidance for business' references Burden 2 in the first 30 days" but I don't think this is correct. The BIS Guidance actually says:

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          So it was actually fall into Burden 1, in your example as the onus is on the consumer, not the trader.

          If you have a question about the voluntary termination process, please read this guide first, as it should have all the answers you need. Please do not hijack another person's thread as I will not respond to you
          - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
          LEGAL DISCLAIMER
          Please be aware that this is a public forum and is therefore accessible to anyone. The content I post on this forum is not intended to be legal advice nor does it establish any client-lawyer type relationship between you and me. Therefore any use of my content is at your own risk and I cannot be held responsible in any way. It is always recommended that you seek independent legal advice.

          Comment


          • #20
            Originally posted by des8 View Post

            Sec 19 (14) deliberately refers to "have conformed to it on that day." ie delivery day
            So as post 6 it is for consumer who rejects within first thirty days to show goods did not conform on delivery.
            19.14 covers the case in relation to subsections (3)(b) and (c) and (4), but we are talking about subsection 3.a the short-term right to reject

            (3)If the goods do not conform to the contract because of a breach of any of the terms described in sections 9, 10, 11, 13 and 14, or if they do not conform to the contract under section 16, the consumerís rights (and the provisions about them and when they are available) areó

            (a)the short-term right to reject (sections 20 and 22);

            (b)the right to repair or replacement (section 23); and

            (c)the right to a price reduction or the final right to reject (sections 20 and 24).

            (4)If the goods do not conform to the contract under section 15 or because of a breach of requirements that are stated in the contract, the consumerís rights (and the provisions about them and when they are available) areó

            (a)the right to repair or replacement (section 23); and

            (b)the right to a price reduction or the final right to reject (sections 20 and 24).


            (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.

            Comment


            • #21
              Originally posted by R0b View Post

              This comes back to my post about the general position of he who claims must prove. For background, the CRA's predecessor, the Sale of Goods Act 1979 stated that consumers good reject goods and obtain a refund within a reasonable time, but unfortunately 'reasonable time' was a question of fact and therefore the courts had given inconsistent judgments at times. If I remember, the SOGA actually stated that goods which were faulty within 6 months were taken not to conform at the time of sale.

              The CRA addressed some of the inconsistencies within the SOGA and other legislation combining it all together. Traders were concerned however that buyers could simply exercise their short term right to reject without question and obtain a refund which would be unfair and result in trader's losing money. A balance was struck in the CRA so that if the consumer wanted to reject the goods within the first 30 days, then the onus was on them to prove that it was faulty and anytime after that but within 6 months, the goods are deemed to be faulty from the time of sale and the trader has an opportunity to remedy the problem.

              Now strictly speaking, you are right in that goods could appear to conform at the time of sale, collection or delivery and it is almost in every circumstance that faults occur following the consumer taking possession of the goods, but in order to reject the goods, the consumer has to link it to one of the implied terms under the CRA e.g. satisfactory quality, fit for purpose, description of goods etc. and those implied terms link back to the time the sale contract was made, hence why I said the consumer must prove that the goods were faulty at the time of sale, and not for example, user error.

              Going back to post #13 of yours, you said that "The 'guidance for business' references Burden 2 in the first 30 days" but I don't think this is correct. The BIS Guidance actually says:

              Click image for larger version

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              So it was actually fall into Burden 1, in your example as the onus is on the consumer, not the trader.
              Rob, you state 'Traders were concerned however that buyers could simply exercise their short term right to reject without question' but this isn't the case, the consumer still needs to prove the goods are actually faulty are therefore breach 'satisfactory quality', 'fit for purpose' etc..

              Moving onto the BIS document, if you look elsewhere in that document you will a matrix and an example which is what I was alluding to in #13
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              But I believe these are misleading, especially FAQ 17, because what is the consequence of a consumer having a faulty product but being unable to show it was like that at delivery? I am indeed saying the BIS document is either wrong or misleading. Within the 30 days the goods must be of satisfactory quality, fit for purpose etc. This is the test, I still see no required link between this right-to-reject period and the condition upon delivery.

              Comment


              • #22
                'Traders were concerned however that buyers could simply exercise their short term right to reject without question' but this isn't the case, the consumer still needs to prove the goods are actually faulty are therefore breach 'satisfactory quality', 'fit for purpose' etc.
                Yes I was saying this in the context of the provisions of the SOGA.

                The CRA is the successor to the SOGA which has had a lot of history and various revisions over time. Having looked back at the SOGA provisions, I can see that the right to reject under Section 20 and 22 corresponds with Section 48A of the SOGA (see below).

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                You'll see that 1(b) refers to goods that do not conform at the time of delivery and (3) then goes on to say that goods that do not confirm within the first six months are deemed to have not conformed at the date of delivery. It has long been established prior to CRA that you need to prove the goods did not conform at the time of delivery as per S.48A, and the same applies with the CRA so nothing has changed in that respect. Nothing has changed in that respect and although it's not expressly made clear, it is implied.

                To give an example, a consumer would not be able to argue that the goods conformed at the time of delivery and for a period of 15 days but on day 16 something went wrong with it and therefore the goods cannot be of satisfactory quality - this context is my understanding of what you are trying to get at.

                The short term right to reject essentially has two parts to it as you identified by the BIS Guidance. Staying with the example above, if you provide a report which simply confirms the goods are faulty, that doesn't implicate the trader as the consumer could have caused the damage through their own negligence or mistake. The report would have to go beyond just saying that there was a fault and explain in some way that the fault was likely there from the start or that it was unlikely that the fault would have occurred after 15 days of use (taking into account the criteria under S.9(2) and (3) of the CRA). If a consumer simply accepts that the goods were fine on taking delivery then there is no recourse and the consumer would have to pay for any repair out of their own pocket because it conformed at the time of sale or delivery and therefore the fault occurred through use of the goods as opposed to the trader providing goods that were faulty.

                Whilst I can see the point you are making, and I am not saying that you are 100% wrong, I just can't see a judge agreeing with you if given the background and context of the SOGA. I also do not think that the BIS guidance is misleading or wrong, nor do I think FAQ 17 is wrong either for the reasons I've said here.

                If you have a question about the voluntary termination process, please read this guide first, as it should have all the answers you need. Please do not hijack another person's thread as I will not respond to you
                - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
                LEGAL DISCLAIMER
                Please be aware that this is a public forum and is therefore accessible to anyone. The content I post on this forum is not intended to be legal advice nor does it establish any client-lawyer type relationship between you and me. Therefore any use of my content is at your own risk and I cannot be held responsible in any way. It is always recommended that you seek independent legal advice.

                Comment


                • #23
                  Originally posted by R0b View Post
                  Yes I was saying this in the context of the provisions of the SOGA.

                  The CRA is the successor to the SOGA which has had a lot of history and various revisions over time. Having looked back at the SOGA provisions, I can see that the right to reject under Section 20 and 22 corresponds with Section 48A of the SOGA (see below).

                  Click image for larger version

Name:	S.48A SOGA 1979.png
Views:	1
Size:	100.2 KB
ID:	1420468

                  You'll see that 1(b) refers to goods that do not conform at the time of delivery and (3) then goes on to say that goods that do not confirm within the first six months are deemed to have not conformed at the date of delivery. It has long been established prior to CRA that you need to prove the goods did not conform at the time of delivery as per S.48A, and the same applies with the CRA so nothing has changed in that respect. Nothing has changed in that respect and although it's not expressly made clear, it is implied.

                  To give an example, a consumer would not be able to argue that the goods conformed at the time of delivery and for a period of 15 days but on day 16 something went wrong with it and therefore the goods cannot be of satisfactory quality - this context is my understanding of what you are trying to get at.

                  The short term right to reject essentially has two parts to it as you identified by the BIS Guidance. Staying with the example above, if you provide a report which simply confirms the goods are faulty, that doesn't implicate the trader as the consumer could have caused the damage through their own negligence or mistake. The report would have to go beyond just saying that there was a fault and explain in some way that the fault was likely there from the start or that it was unlikely that the fault would have occurred after 15 days of use (taking into account the criteria under S.9(2) and (3) of the CRA). If a consumer simply accepts that the goods were fine on taking delivery then there is no recourse and the consumer would have to pay for any repair out of their own pocket because it conformed at the time of sale or delivery and therefore the fault occurred through use of the goods as opposed to the trader providing goods that were faulty.

                  Whilst I can see the point you are making, and I am not saying that you are 100% wrong, I just can't see a judge agreeing with you if given the background and context of the SOGA. I also do not think that the BIS guidance is misleading or wrong, nor do I think FAQ 17 is wrong either for the reasons I've said here.
                  Rob, it does not matter what the SOGA says as it has been superseded in relation to this subject. Saying it is implied does not make it so either, without case law you're guessing what a judge would say. So according to your example you are telling me that if I buy a TV which works on day one and then fails on, say, day three, then I'm on my own? We both know this is not the case in reality. According to your interpretation you are creating a dead-zone where the consumer is out in the cold, or at least it appears that way, until the 30 day period passes. Given your interpretation, then using the TV example, I would be best doing nothing and waiting from day 3 until day 31, then taking action against the seller. This, logically, surely cannot be true unless something has gone clearly wrong in the drafting of the act. The BIS guidance is not the law either. Only case law can resolve our differences in this matter.

                  Comment


                  • #24
                    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 here. 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?

                    Comment


                    • #25
                      ellingtj i have to disagree regarding the SOGA being irrelevant merely because it has been superseded by the CRA. I'm not going to go into great detail because statutory interpretation is a whole subject in itself, but for centuries, the Courts have used various external aids (also known as instruments) to interpret and construe legislation where there is ambiguity. This can include written reports, materials, commentary explanatory notes, hansard and of course the history of legislation.

                      The CRA is an Act which seeks to consolidate consumer rights that were spread over several pieces of legislation. A court would therefore look at the previous law to understand and interpret the provision that is currently in debate. As an example, I quote the below from the House of Lords case NWL Ltd v Nelson and Laughton:

                      "
                      'It is wrong to attempt to construe any section or subsection of these Acts without reference to their legislative purpose. And it is also necessary to have regard to the history of the statute law and the case law since 1906 for a full understanding of them."

                      Therefore if I were this point in front of a judge, I would be pointing out that the CRA consolidates previous consumer legislation into a single Act and there has not been any dramatic shift in the law itself save for some enhanced rights such as the right to reject. Dismissing the SOGA simply because it has been superceded would be wrong.

                      Regarding the other points you made, I would repeat what I've already said above. In your TV example I would say yes, you are on your own u less you can prove that the TV was faulty when sold. If it is accepted that the TV was working at the time of delivery, then in the traders eyes, the TV was of satisfactory quality.

                      Equally, an independent report that says the TV is faulty would not (in my opinion) be sufficient to prove that the trader sold a TV that was not of satisfactory quality. The trader could argue that the report is not conclusive as it the TV could have been damaged by the consumer and they are now trying to (fraudulently) claim it was ot of satisfactory quality. The onus is on the consumer to prove that he or she was sold goods not of satisfactory quality or fit for purpose and the only way to claim that is to argue it was faulty at the time of delivery.

                      Of course you are right only a judge in an authoratitive court can conclude this argument but given that most cases are resolved at County Court level, the CRA is still new legislation and these types of cases turn on their own facts of individual cases, I don't think you can apply a broad brush approach. At the same time, I doubt very much that a judge would simply disregard all previous case law in relation to the SOGA where it would be appropriate to consider earlier authorities. Again, the Courrs do this on a regular basis.

                      Finally, you are also right that I am guessing what a judge might conclude, but that is what all litigation is about. History of legislation, case law and external aids are used to interpret the law and my opinion is based on all of that. You can never tell someone that they will be successful 100% but in this case, I think a well informed judge would likely conclude the views of both Des and I. However, I would say that there is also a chance a judge might find in your favour provided there is a well argued point.


                      If you have a question about the voluntary termination process, please read this guide first, as it should have all the answers you need. Please do not hijack another person's thread as I will not respond to you
                      - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
                      LEGAL DISCLAIMER
                      Please be aware that this is a public forum and is therefore accessible to anyone. The content I post on this forum is not intended to be legal advice nor does it establish any client-lawyer type relationship between you and me. Therefore any use of my content is at your own risk and I cannot be held responsible in any way. It is always recommended that you seek independent legal advice.

                      Comment


                      • #26
                        Hello. I would like a clarification on the short term right to reject. can anyone help please. I understand the burden of prove becomes the responsibility of the consumer on the first 30 days if one uses the short term right to reject. That is because the rejection will automatically allow the consumer a full refund. However, what if the consumer do not reject for a refund? if the consumer ask a repair even if it is under 30 days, does that mean that burden of proof become the responsibility of the trader?

                        Comment


                        • #27
                          I would suggest you start your own threads so the two problems don't get mixed up.

                          Comment

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