Second hand goods sold privately, looking for law which covers this

[jamescl131]

Hello,

I'm taking an Ebay buyer to court for not returning goods (despite multiple requests to), the Ebay case got closed in my favour but Paypal refunded the buyer (incorrectly in my view) 4 months after the multiple failed return attempts.

I have all the evidence that the item wasn't returned, the multiple offers to accept a return, all the Ebay claim information, all the correspondence with the buyer etc to back up my claim and we have a hearing date set for January.

My question is, I've looked through the Consumer Rights Act 2015 and there's nothing in there about the sale of used good by a private seller. What I want to demonstrate to the court is that I gave the buyer ample time to return the goods (over 3 months from the point which they claimed an issue with them) but they didn't return them in 3 successive attempts.

Of course the buyer wanted a refund and to keep the goods, he was trying it on in my view which is why I've taken it to court so he won't get away with it (hopefully).

I want to show that I was a reasonable and responsible seller and that the buyer repeatedly failed to return the item for a refund. Can anyone give me any pointers as to which specific pieces of law I can rely on and what the definition of reasonable is generally deemed to be when it comes to returning goods? I suspect 30 days?

Thanks in advance, I'm not being lazy here I really have read a lot of pages, but I still haven't been able to pin down exact references yet.

[jamescl131]

Nobody able to advise? I know I struggled to find a reference.

[R0b]

It's a bit late asking for help on the relevant law when you've already issued a claim against the eBay buyer.

To answer your question, the CRA 2015 doesn't apply to contracts between two private individuals and usually in that type of contract, there is generally little law to assist when things are bought and sold.

However, the applicable law in your situation is probably going to be restitution by way of unjust enrichment, and wrongful interference with goods under the Torts (Interference with Goods) Act 1977. There are several different types of claims under the Torts IG Act but the ones most likely relevant to you is conversion or trespass to goods. Conversion is the more serious offence in that it is a deliberate interference of another's property with the intention to deprive the true owner of it (think of it as a civil equivalent to criminal theft) whereas trespass to goods is concerned with minor interference such as touch or moving goods, or even causing some minor damage such as scratching paintwork.

Like I said though, its a bit late wanting to know what to argue if you haven't pleaded them because that's what you should have done in the first place. You can't bring up new allegations further down the line unless you pay to amend your claim, but that said, as we haven't seen your particulars of claim, I suppose its down to a judge to decide whether to accept your arguments around the above points.

[2222]

The OP says "I'm taking an Ebay buyer to court". Have proceedings already been issued?

Personally, I would issue a complaint against Paypal. They are the ones who have taken your money away in a decision you disagree with. If necessary, take the complaint to FOS.

[des8]

The OP says "I'm taking an Ebay buyer to court". Have proceedings already been issued?Hearing date set for January

Personally, I would issue a complaint against Paypal. They are the ones who have taken your money away in a decision you disagree with. If necessary, take the complaint to FOS.

answer in red

[2222]

answer in red

Thanks.

[jamescl131]

The claim is issued with all the facts of the case, it is only a small claim that the buyer claimed the goods were faulty, but the fault is a smell on a washable item and I sold 2 identical items to 2 buyers and no issue from the other buyer.

All the signed statement numbered is set out with a linear timeline of events and the Ebay and Paypal claims and other evidence. Basically in December they asked for a return which I agreed to and funded return postage for, the return wasn't used and Ebay closed the case in December. Then the buyer made another claim against Paypal in February and then didn't return it again and Paypal found in my favour. Then 4 months later they appealed the Paypal decision and paypal gave them a third chance to return it without my agreement and I refused due to the length of time and 2 previous failed attempts. Paypal refunded them.

Since the buyer has the funds and the goods I have made a claim against the buyer. I had already looked into the position in terms of law that there are very little protections for consumers when it comes to second hand private sales and that I had been reasonable by giving the buyer 3 months from when they asked for a return to return it before I said no.

What I really wanted was just the a final chance to quote maybe a sentence or two of law which is specifically relevant, as it is a small claim I didn't think it was always necessary to quote specific legislation or case law as long as all the facts of the case were clearly set out in advance. I thought it would be nice to just add on something and maybe print out and bring with me a particular piece of law which backs up my case.

I have an opportunity to send the final package to the defendant or the court and I have a deadline for that, certainly the original claim sets out the basis for the claim in terms of multiple failures to return goods. I really struggled to back up what I read on Which and consumer sites with specific law, as everything seems to assume you're a consumer and the seller is a business. It is really hard to find legislation on used goods sold by a private seller.

I'll read up on the Interference with Goods Act 1977, thanks. Am I right in thinking as it is a small claim that is is ok to bring a print out of this to the hearing? certainly all the facts are on a signed witness statement if they'll allow me to reference the Interference with Goods Act in the hearing and I can find the applicable section that (I'm thinking) should help my case. I could even include it in the final package if needed.

[R0b]

Just because your claim has been allocated to the small claims track doesn't mean that it is any less different to any other court. The County Court is still a court of law and although small claims disputes are slightly less formal, you do need to prove your case and I think you would be perhaps a little naïve to simply quote one or two lines from a piece of legislation and think that's it - It's not as simple as that.

A witness statement contains all the factual information with reference to evidence to support those facts but it should not be used as a vehicle to advance your legal arguments because that is what the hearing in January is for. So any references to legislation or legal arguments should be omitted from your witness statement and wait until then, though there is no harm in you sending the legislation over to the other side as part of your evidence bundle.

The link below gives a basic outline of the legislation but as I said, there are several strands of claims under that Act. You should also look into arguing unjust enrichment too.

https://www.inbrief.co.uk/sales-law/...ce-with-goods/

[2222]

I've issued small claims several times, and I've never needed to quote chapter and verse of the law. The judge has always filled that bit in. Indeed, when I sued a firm of solicitors for nonpayment of my bill, they argued about everything that they could think of, but not that I had failed to mention the act I was claiming under!

You run the practical risk that the defendant gets the case transferred to their local court, and you then have to consider whether to travel what may be a considerable distance for what I assume is a very small claim.

[jamescl131]

I've issued small claims several times, and I've never needed to quote chapter and verse of the law. The judge has always filled that bit in. Indeed, when I sued a firm of solicitors for nonpayment of my bill, they argued about everything that they could think of, but not that I had failed to mention the act I was claiming under!

You run the practical risk that the defendant gets the case transferred to their local court, and you then have to consider whether to travel what may be a considerable distance for what I assume is a very small claim.

Same, I have presented the facts of the case in a nicely prepared bundle with printouts of evidence relating to the case and a witness statement which has all the paragraphs numbered and in the right layout.

I am already travelling for this one, but it isn't the money which motivates me. It is a relatively small amount and I'll make a loss on having the day off and traveling to the court, but I'm stubborn old b and I don't like people taking the P and making claims on goods hoping they can just keep them and have a refund as well while I'll lose the money. I also enjoy the process and like reading up on the law. I always used to listen to Daniel Barnett on LBC, but sadly the Legal Hour is ended.

I too have won previously, the barrister was NOT happy when an individual (not legally qualified) walk in and wins, I could tell from her face!

Last time the judge did ask for citation and a print out of the Act I referred to and I didn't have the whole thing, just a pointer and quote. I thought this time, in case the same happens it would just be nice to be prepared. If it were Consumer Rights Act 2015 it would be simple, but as demonstrated by the thread it is a little more tricky to dig out the relevant law relating to the return of alleged faulty goods, sold as "used" second hand by a non commercial seller.

I do have some pointers though from Rob, so that'll give me a few hours of reading this weekend. If anyone has any further info which might help for that specific scenario it would be very much appreciated.

Picture of the previous judgement I mentioned

[R0b]

I would suggest that when referring to any legislation or case law, you print out the heading with the name of the Act / case details and then the relevant section or page you want to rely on. Under normal rules, you would have to provide the full legislation or court case but as its small claims, you could probably get away with that and to keep printing costs to a minimum.

The elements of required to satisfy a claim of conversion can be fHouse of Lords case Kuwait Airways Corp v Iraqi Airways Co [2002] UKHL 19 (link here). Paragraphs 38-39 are relevant (my underlined):

39. In my view this line of argument was misconceived. I need not repeat the journey through the textbooks and authorities on which your Lordships were taken. Conversion of goods can occur in so many different circumstances that framing a precise definition of universal application is well nigh impossible. In general, the basic features of the tort are threefold. First, the defendant's conduct was inconsistent with the rights of the owner (or other person entitled to possession). Second, the conduct was deliberate, not accidental. Third, the conduct was so extensive an encroachment on the rights of the owner as to exclude him from use and possession of the goods. The contrast is with lesser acts of interference. If these cause damage they may give rise to claims for trespass or in negligence, but they do not constitute conversion.

In relation to unjust enrichment which is a claim entirely independent of contract or tort, there is 4 elements as discussed in Banque Financiere v Parc (Battersea) Ltd [1998] UKHL 7 (link here):

Four questions arise: (1) Has OOL benefited or been enriched? (2) Was the enrichment at the expense of BFC? (3) Was the enrichment unjust? (4) Are there any defences? The first requirement is satisfied: the repayment of £10m. of the loan pro tanto improved OOL's position as chargee. That is conceded. The second requirement was in dispute. Stripped to its essentials the argument of counsel for OOL was that the interposition of the loan to Mr. Herzig meant that the enrichment of OOL was at the expense of Mr. Herzig. The loan to Mr. Herzig was a genuine one spurred on by the motive of avoiding Swiss regulatory requirements. But it was nevertheless no more than a formal act designed to allow the transaction to proceed. It does not alter the reality that OOL was enriched by the money advanced by BFC via Mr. Herzig to Parc. To allow the interposition of Mr. Herzig to alter the substance of the transaction would be pure formalism.

[jamescl131]

Super helpful, thank you. I really appreciate the time to post that and I'll do some further reading and take on board all feedback.

[2222]

Bear in mind that I may have been lucky in the past!