Used car "not as described" - dealer claiming that description was "puffery"

[PETERCW]

Good afternoon all,

I'm looking for some advice on a dispute I'm currently having with a used car dealer.

In summary:

Car was a distance purchase, a 2016 Suzuki Baleno bought for £7k + £200 for delivery. The advert said it was in "excellent condition". Before purchase, I specifically asked whether the car was in good condition. The dealer told me by email it was in "fantastic condition". The car was delivered on 21st Jan 2021 and all seemed well...for a few weeks. I then discovered the air con wasn't working.

I notified the seller. He asked me to take the car to a local dealer. I booked it in. Before the time came, I discovered the horn was working only intermittently. I informed the seller of this. When the garage looked over the car, they said it was heavily corroded. This was why the horn was faulty and they suspect also why the air con's not working. I got them to fix the horn. They said the air con fix could cost £300-600. They also pointed out excessive corrosion to other components under the body, including brake pipes, suspension components, and subframes. They asked if the car had been kept near the sea, and my own digging proved they were right. I spoke to the previous owner (usefully, the seller had left his name and address in the document pack) and he turned out to live 400m from the coast - in fact he decided to get rid of the car because of how much it was corroding and got around ~£4200 for it from the seller in part exchange.

I informed the seller. They essentially said it was my problem as the car was fine when it left them. I reminded them of the CRA and the 6 month period. They handed the case over to a law firm. The law firm wrote to me saying (in summary) it was my problem as the car was fine when it left the showroom - they said the seller had inspected it, and hadn't seen any of the problems I was now pointing out. They also pointed out it had passed an MOT back in October 2020, with no advisories.

By this point I had decided I didn't want the car - the garage who looked it over recommended I reject it as the level of corrosion indicated future problems. I wrote back to the law firm stating that the seller had been wrong to say the condition was fantastic and excellent and arguing that these terms implied the car was in "better than expected" condition, whereas in reality it was in "worse than expected" condition. As the car was "not as described" I requested they refund the purchase price + what I'd spent on repairs (minus an allowance for fair use) and take the car back.

I also pointed out that two bodywork inspections had been missed and that the anti-perforation corrosion warranty was now void. I argued that this meant the car didn't have a "full service history" because those inspections are part of the service schedule.

They wrote back asking for pictures which I provided. They said the corrosion looked normal to them, but offered to pay for a new MOT. I said I didn't see the point as it would probably pass, but that wouldn't prove the car was in "fantastic condition".

They have now written back claiming again that the corrosion is "superficial, at best" and that the words "fantastic" and "excellent" with respect to the condition "appear to be little more than 'puffery'." They have offered £500 "without admission of liability and as a gesture of goodwill", as long as I don't tell anyone, ever. I am not minded to accept. This will likely cover the aircon to be fixed, but will still leave me with a heavily-corroded car when I paid for a car in fantastic condition.

I did pay about half by credit card so I can go down the S75 route - my question is, is "puffery" a real thing?! I have looked it up and it seems to be "a promotional statement or claim that expresses subjective rather than objective views, which no "reasonable person" would take literally" (according to Wikipedia!).

Are they right? Are they just trying it on? Surely it can't be ok for a dealer to say "this car is in fantastic condition", and then when it turns out to be in substandard condition, simply say "we didn't really mean that literally"?

Any advice would be much appreciated.

Many thanks

Peter

[efpom]

CRA Section 50

[R0b]

There can be a fine line between 'mere puff' and a representation. The legal meaning of a mere puff is exaggerated, unrealistic or extravagant statements with the intention of capturing one's attention but with no intention to be legally binding. Unfortunately there is no set formula for determining whether a statement is puff or not, but the courts will usually look at the statement in the context of the contract and evidence overall based on an objective assessment i.e. what would a reasonable person think and would he/she take those statements seriously in all the circumstances.

Obviously the law firm is trying to palm it off as puffery but I doubt that would fly. The fact that the advert has described the characteristics of the vehicle as being in excellent condition, which you then specifically clarified with the dealer as to the car being in a good condition and they responded as fantastic. I would suggest there is little room for arguing that both the initial description and response would be classified as just puffery. It's clear that you wanted to know what condition the car was in and the words 'excellent' and 'fantastic' would be taken to mean that the car's overall condition is above average and I reckon a court would agree that an objective person would take the same view.

The MOT is only as good as on the day of inspection so that's a poor excuse, particularly where the purchase is some months after that was carried out. Did the dealer do any pre-sale checks, do you have a record of that?

As Efpom mentioned, section 50 of the CRA would give you the support to reject the vehicle even if you went to court and a judge sided with the dealer as to the car's description on the advert. There are some case decisions that support your position and I'm sure there's one case albeit decided many years ago where the court held the seller accountable when he said that 'it was a very good bus'. I think another case referred to a description of perfect condition and held the seller responsible in that case too.

If you are going to claim from your credit card provider you need to put them on notice now, if they reject your claim the you should look at issuing proceedings against the dealer and the credit card company as defendants to get your best chances of success. The CC company will probably counterclaim against the dealer in that case to recover any losses.

[des8]

I would write to trader (copy in the "law" firm...care to name them?) rejecting the vehicle as unsatisfactory and not as described.
Tell them that if they do not respond in a satisfactory manner ie acceptance of rejection within 14 days you will initiate
court action without further reference to them.

As to sec 75 claim, you can start one simultaneously. The credit card issuers tend to drag their feet, and whilst court takes time they can take longer and if finally they reject your claim your 3b months further down the line.

Obviously if you win on one front, you have to discontinue the other. You cannot receive a double pay out.

[PETERCW]

Thank you EFPOM, ROB, and DES8, for your helpful replies.

I've looked up Section 50 of the CRA; my understanding is that it means that the descriptions of the car are included as terms of the contract because they clearly were "taken into account by the consumer when deciding to enter into the contract".

But I'm not sure how that Section would give me "the support to reject the vehicle even if I went to court and a judge sided with the dealer as to the car's description on the advert" - can you elaborate? I would have thought if the judge sided with the dealer (and said the car was in fantastic and excellent condition) I would be unable to reject the vehicle.

The dealer did do pre-sale checks and has argued that the problems identified weren't there when they did those checks. But I only have their word for it and surely the seller can't just say "the faults weren't there when I sold it"...otherwise every seller would do that?

I'll go back to the dealer/law firm as advised and start working on the S75 claim in parallel.

[des8]

I'm not quite sure where Sec 50 of CRA 2015 fits in your claim.
Sec 50 deals with "services", and I think Sec11 is more appropriate

[R0b]

Well, your right both of you in that s.50 applies to services however, you made a partial payment via your credit card which is a service not goods. If you look to s.48 the whole of Chapter 4 applies to a contract for a trader to supply a service to a consumer. Trader is also defined in s.2(2) as a person acting for purposes relating to that person’s trade, business, craft or profession, whether acting personally or through another person acting in the trader’s name or on the trader’s behalf.

In my view, banks and lenders would be regarded as falling within the definition of Trader as per my underline and given that s.75 confirms you have a like claim against the lender for breach of contract or misrepresentation. So any reliance on s.50 would be applicable to the credit card co. only and not against the trader.

You can couple that stance with s.11 as Des has mentioned.

Hope that makes sense.

[PETERCW]

Thanks again both. I have written back rejecting their offer. I have also lodged a claim with the Motor Ombudsman as it is now over 8 weeks since I first informed the dealer of the problem with the vehicle. However the ombudsman is saying it could take 6 months for them to reach a decision.

In parallel I'm kicking off the s75 process, though I'm not expecting that to be quick either...

[PETERCW]

So the dealer and their legal rep said they would take the car back if I agreed to a deduction for fair use of 45p/mile, which would be around 20% of the £7k cost of the car!

I don't understand the logic being this approach as the 45p/mile rate is to cover the costs of running a car, which have been my responsibility since I bought it (e.g. I've paid for petrol, insurance, etc.).

The legal rep says "There are several methods employed by the Courts to determine usage. Mileage based on the HMRC rate is an accepted methodology."

Is he bluffing? I don't understand what the HMRC rate has to do with anything.

I have instead offered to accept a fair use deduction of £250, which is the drop in the value of the car during the time I've had it (4 months, 3000 miles). Am I being reasonable?

[des8]

You are quite correct in rejecting usage cost at 45pm as HMRC rate includes many things.
A more realistic charge is between 10 & 15p pm

They can only charge for fair usage.
I believe Finance companies charge about 10p pm for exceeding mileage allowance, so that should be your starting point

[MIKE770]

Fancy stating 45 p per mile (a renown rate for mileage claims which covers fuel/insurance/maintenance cost) in real time mileage claims i.e:- use of own car on business runs, this company feel they are on a loose footing or dam right ignorant to facts, seems they are trying to mislead the poster! makes me so annoyed that they can get away with treatment in such cases.

[PETERCW]

Just to close this thread off, a few months late - thanks in no small part to the advice here, I rejected the seller's lawyer's offer of a £1500 refund, and eventually we agreed on £1850, which was just over 25% of the cost of the car.

So the negotiations went a bit like this: "Nothing to do with us and you have no claim against us" ---> "Would you like a free MOT?" ---> "How about £500?" ---> "How about £1500?" ---> "Ok how about £1850?"

Regarding the attempt to apply a 45p/mile rate when refunding the cost of the car, it really helped to discover an article online by the very lawyer I was dealing with saying that "the Courts will look at how much the vehicle has depreciated during the period between delivery/sale and rejection/return and the cost of long-term hire of a similar vehicle during the same period and pick the median or midpoint."

Thanks for all the help! Good outcome for me.

[R0b]

Congrats on your win.

Not sure what that article suggested how you would go about calculating that difference but another way of looking at it is to perhaps check what the finance companies charge for that vehicle in relation to excess mileage charges (I presume this is what the article alluded to as long-term hire?) and use that as a baseline for negotiation and you'll find it is very much around the mark Des suggested in an earlier post of 10-11p per mile or even less around 8p per mile.

[PETERCW]

Congrats on your win.

Not sure what that article suggested how you would go about calculating that difference but another way of looking at it is to perhaps check what the finance companies charge for that vehicle in relation to excess mileage charges (I presume this is what the article alluded to as long-term hire?) and use that as a baseline for negotiation and you'll find it is very much around the mark Des suggested in an earlier post of 10-11p per mile or even less around 8p per mile.

Thanks Rob. I did suggest that too.

This was the article in question: https://www.lawgistics.co.uk/blog/le...ocket-science/

[R0b]

Is there any update to you case or is it still ongoing?