Emotional distress in small claims for faulty goods

[des8]

Re: Emotional distress in small claims for faulty goods

Not Afghan but Saluki.
One of a couple we have.
Been owned by salukis since 1970.......... must be mad

[elsa123]

Re: Emotional distress in small claims for faulty goods

UPDATE!!

The prelegal letter was signed for 2/4/15 so I texted today to find out when they were collecting the tank:

text messages:

me: I note you have signed for and thus read the prelegal letter. Can you confirm when you are coming to collect the tank and refund our cash thanks

vendor You will hear from our solicitor in due course. Your letter clearly states a 14 day response. Kindly do not text me again

me: please give time frame for solicitors letter. We only have a small house and have no storage space available and want tank out the house asap. We have no space for a new and fully functioning tank while this hulking great thing is in our living room. Our 2 working tanks are overstocked and is unsafe for fish to stay in them. Please sort this out asap.

vendor: within the 14 day period as stated clearly in the previous text

me: please can you get lawyers letter asap as the fish which did not die are at risk from being in overstocked aquarium. I have already had 6 deaths thanks to your mis selling and do not want any more

vendor did not respond further.

A bit shocked an worried they have involved a lawyer so early on but my lawyer friend did tell me they are not welcome at small claims.

just want the 14 days to be up so I can dump that tank back on them

[Carnelian]

Re: Emotional distress in small claims for faulty goods

I have a few comments as an aquarium owner. FIrst the filter should have bacteria in, but you shoud know that. Then you say you saw before you bought, surely you must have looked closely at the filter as that is the one thing that keeps the tank clean and safe? Also all aquarium shops will say buy new filters, they are after a sale.
Buyer beware and all that, but how did you find the tank, where was it advertised? Have you gone through the advertiser' s complaint procedure?

[elsa123]

Re: Emotional distress in small claims for faulty goods

I looked at the outside of the tank and the filter casing looked new to me. This is the first tank I have ever bought that is not a biorb and with the biorb tanks the filter is like a donut inside the tank.
This is an external filter and was described as brand new. It is in a black box and I never opened it up and did not know what was inside. Was sold as new and outside black casing looked new.
It is not a case of it having a bit of bacteria in it. I took it to our local fish shop and they said the sponge bits, which cannot be seen unless you open the black casing, are so dirty and worn the filter cannot function. I am not talking about one or two bacteria, this thing is disgusting and when the guy at the fish shop opened the casing it stank to high heaven. Not what one would expect for a brand new item.
If I had looked inside the filter there is no way I would have purchased the tank. However I have only ever had biorbs and so did not look inside it. Just looked at outside of tank and it is a pretty tank.
As for the heater, when I examined the tank it the vendor's garage the heater was there. However it arrived without the heater and vendor said this was the transport company's fault as they arrived early to collect the tank and so vendor forgot to put it in the ASDA bag with all the other bits.
Found the tank on eBay and eBay will not refund as I examined tank before collection. Problem is I only looked at the outside of the tank and the heater was there at the time. With hindsight I should have examined the filter inside but did not.

[elsa123]

Re: Emotional distress in small claims for faulty goods

I read that the SoGA does cover faults that are not apparent on immediate inspection. This stinky filter was not immediately apparent and as someone who has never owned this type of tank I did not know to look inside. Outside casing looked new and so I took it on vendor's word it was new.

[elsa123]

Re: Emotional distress in small claims for faulty goods

Found this online about buyer beware, or caveat emptor:

Whenasaleissubjecttothiswarningthepurchaserassumestheriskthattheproductmightbeeitherdefectiveorunsuitabletohisorherneeds.ThisruleisnotdesignedtoshieldsellerswhoengageinFraudorbadfaithdealingbymakingfalseormisleadingrepresentationsaboutthequalityorconditionofaparticularproduct.Itmerelysummarizestheconceptthatapurchasermustexamine,judge,andtestaproductconsideredforpurchasehimselforherself.

I would argue buyer beware does not apply here as I am not a filter expert and so never examined the inside. I did not even know I should look inside. I was not in a position to see the tank operating as it was in vendor's garage with no water in so could not see it working. In the sale of a car a judge could not reasonably expect a normal buyer who is not a car expert to examine under the hood.

[elsa123]

Re: Emotional distress in small claims for faulty goods

When a sale is subject to this warning the purchaser assumes the risk that the product might be either defective or unsuitable to his or her needs.This rule is not designed to shield sellers who engage in Fraud or bad faith dealing by making false or misleading representations about the quality or condition of a particular product. It merely summarizes the concept that a purchaser must examine, judge, and test a product considered for purchase himself or herself.

Trying to post the buyer beware thing again....hopefully with some spaces in it!

[des8]

Re: Emotional distress in small claims for faulty goods

Have you kept a copy of the advertisement?
Presumably this was NOT an eBay auction.
You say it was a private seller. Are you sure he is not a business pretending to be a private seller?
Where did you "read that the SoGA does cover faults that are not apparent on immediate inspection"?
Do you now have the heater?

Generally speaking with reference to sales between private individuals, if the purchaser has the opportunity to examine the goods before concluding the sale, they have very few rights.
However you would not be expected to strip down the item, and if there was no opportunity to see the item working (when it had been described as fully functional) you would have a case against the seller if it did not work.
I don't know anything about aquariums, but would it not have been possible to buy a new pump set up and then charge the seller with the cost. As one party to a contract you are supposed to mitigate your losses, and would that not have been a cheaper (and easier) option than complete rejection?

[Carnelian]

Re: Emotional distress in small claims for faulty goods

I'm not wanting to be picky here, but if the tank had an external filter and you are not familiar with that kind of tank, or the need to rinse the filter regularly and clean it and renew the sponge parts in rotation so that there are always icky filled with bacteria pieces present, then you would not realise that there should be billions of bacteria present? The filters are designed to be opened frequently for inspection, and a new one is relatively cheap compared to a big item like a tank, but still you would keep the icky bacterial filled sponges to keep the fish alive! New sponges need to have a bacteria colony grown on them before introducing to any tank.

I am not sure that any court will find for you because of this and the fact you inspected it, and perhaps you should consider other routes as the stress of a trial would usually be impossible for someone with AS to cope with adequately.

[elsa123]

Re: Emotional distress in small claims for faulty goods

yes, we have a copy of the advertisement and all the ebay messages that went back and forth
the private seller sells about 50 items per year, all low price, mainly ladies clothes. The vendor is a woman, however it is the husband's tank and all correspondence we have had is with the husband.
Not sure if 50 sales per year qualifies them as a business as they are all low ticket items and not related to fish/aquariums. I am assuming the lady just sells her clothes and shoes when she gets sick of them.
You are correct that we could pay out for a new heater, which we still are not in possession of, and new filter sponges.
However this has caused me so much upset I want it gone, more for emotional reasons than anything else.

[elsa123]

Re: Emotional distress in small claims for faulty goods

Carnelian the eBay vendor described it as a second hand tank with a "brand new upgraded" filter. A brand new item should not have any bacteria in it as it is "brand new".
Plus I saw the heater and never got it.

[elsa123]

Re: Emotional distress in small claims for faulty goods

Just found this on a Citizens Advice Website:

Traders pretending to be private sellers

It can sometimes be difficult to tell the difference between a private seller and a business seller. Sometimes, this is because a business seller deliberately pretends to be private to try and get out of giving you your statutory consumer rights.
For example, someone advertising a car for sale in a newspaper may claim it’s a used car they own as a private individual, but may in fact be a used car dealer.
It’s a criminal offence for a business trader not to make it clear that they are a trader and not a private seller. If you suspect someone isn't making this clear you should report them to Trading Standards.
If you buy goods from a trader pretending to be a private seller you can insist on the same rights as you have when you buy from a business seller. For example, if the goods are not of satisfactory quality or fit for purpose, you may have the right to a refund.

If they are selling 50 items per year, which are low ticket and not related to fish, are they a business or private vendor? I am confused now!

[wales01man]

Re: Emotional distress in small claims for faulty goods

Would think they are NOT a trader

[elsa123]

Re: Emotional distress in small claims for faulty goods

Thanks Walesman. It looks to me like the vendor just sells on stuff she does not need, mainly clothes and shoes that I am assuming she bought for herself and then just wanted a change. This is the first high ticket item she has sold.

[wales01man]

Re: Emotional distress in small claims for faulty goods

I would bet that they have not and will not contact a Solicitor best you keep pursuing them by recorded delivery do not get involved in phone calls or messages if they do not respond with an offer take the time and get some more advice before you issue a claim.

Sorry to say but IMO trying to claim for anything but the cost of replacement or repair would fail