Rights buying a faulty vehicle from a private seller

[RAYRAY84]

On the 27^th March my husband purchased a vehicle via an ebay advertisement.
He paid £500 deposit to hold the vehicle and paid the remaining £2850 cash on collection.
The vehicle was collected from a private seller 2 hours away and half way through the journey my husband contacted the seller to question an issue with 5^th gear sticking.
The seller advised he would contact his mechanic and call back. On returning my husband’s phone call he had advised it should be a cheap fix and should cost no more than £90.
The vehicle has since been to the garage to find it does in fact require a new gearbox.
It was also noted that a ‘quick fix’ had been made to potentially cover up the bigger issue.
After making a few enquiries, I have had a few quotes amounting to around £1200.
I contacted the seller to advise of the situation and asked for a very reasonable £500 contribution.
The seller refused and said he would offer no more than £250 as he had sold the vehicle at a loss.
We explained to the seller that the advert had stated the vehicle was “mechanically excellent and drove perfectly” so he had in fact mis-sold the vehicle.
He still refused and advised we should start legal proceedings.
I have contacted citizens advice who have explained our rights (mainly based on the description).
They also advised that according to ebay the seller has in fact sold other vehicles and could be classed as a trader. My husband believes he may also have been selling vehicles offline.
My question is, do I have a valid case and if so how is the best way to pursue the matter further i.e. as a trader or private seller?
I have stated my rights in a text to the seller and advised of the evidence I have to back up my claim.
Should I now send a letter explaining the action I plan on taking if he still refuses to pay the money? And if no reply is received/we can’t come to a reasonable agreement that I contact the small claims court?
As it stands, we are fairly sure we have been scammed and feel very disappointed.
Any help/advice on this matter would be very much appreciated.

[R0b]

Re: Rights buying a faulty vehicle from a private seller

Hello RayRay,

Do you still have a copy of the advert from eBay? You may need to take a screenshot or print out as evidence if you do pursue the matter.

Whether or not the person selling the vehicles is acting in the course of business will be one for you to prove. Citizens advice are right in that it may be possible to argue that the seller was selling vehicles in the course of a business rather than a personal capacity. Have you checked the seller's current sale items online and if they are all vehicles? Not sure if you can also check review comments or expired advertisements to see how many other vehicles have been sold in the last 1-2 years. This will help to determine if he is in fact acting in the course of business rather than a one off private seller.

If it can be established he is acting as a trader
Firstly you will have the protection of the CPUT Regulations 2008, it is a criminal offence for a trader to mislead a consumer either by way of an action or an omission (regulations 9 & 10). Regulation 12 also provides that it is a criminal offence to create an impression that the person is not acting in the course of business.

You will also have the protection of the Consumer Rights Act 2015 in terms of not fit for purpose and unsatisfactory quality. you will be entitled to a replacement or a repair at the sellers option but a repair will mostly likely be suitable in this case. They have one chance at repairing at their own expense (including collecting the vehicle or pay your reasonable expenses) and if it fails again you are entitled to a refund.

You could also notify trading standards about this person's actions as they may wish to monitor the situation.

If the seller is not a trader
If the first argument cannot be proved then you could argue a misrepresentation and/or negligent misstatement in relation to the description of the vehicle advertised. By advertising the fact that the vehicle is "mechanically excellent and drives perfectly" you are relying on that statement which turns out to be untrue. You will therefore want damages for the amount the vehicle was purchase and/or compensation. Or alternatively compensation for the vehicle to be fixed if you wish to keep it and have it repaired.

Either option will of course take you down the legal proceedings route. It may be that he is banking on the chance that you will not go to court or take it any further. I presume you have the address of the seller or was the vehicle picked up other than the seller's address?

Two links below which show examples of sellers acting as private sellers and not traders.

http://www.tradingstandards.uk/extra...fm/newsid/1372

http://www.tradingstandardswales.org...MarTorfaen.cfm

[RAYRAY84]

Re: Rights buying a faulty vehicle from a private seller

Hello RayRay,

Do you still have a copy of the advert from eBay? You may need to take a screenshot or print out as evidence if you do pursue the matter.

Whether or not the person selling the vehicles is acting in the course of business will be one for you to prove. Citizens advice are right in that it may be possible to argue that the seller was selling vehicles in the course of a business rather than a personal capacity. Have you checked the seller's current sale items online and if they are all vehicles? Not sure if you can also check review comments or expired advertisements to see how many other vehicles have been sold in the last 1-2 years. This will help to determine if he is in fact acting in the course of business rather than a one off private seller.

If it can be established he is acting as a trader
Firstly you will have the protection of the CPUT Regulations 2008, it is a criminal offence for a trader to mislead a consumer either by way of an action or an omission (regulations 9 & 10). Regulation 12 also provides that it is a criminal offence to create an impression that the person is not acting in the course of business.

You will also have the protection of the Consumer Rights Act 2015 in terms of not fit for purpose and unsatisfactory quality. you will be entitled to a replacement or a repair at the sellers option but a repair will mostly likely be suitable in this case. They have one chance at repairing at their own expense (including collecting the vehicle or pay your reasonable expenses) and if it fails again you are entitled to a refund.

You could also notify trading standards about this person's actions as they may wish to monitor the situation.

If the seller is not a trader
If the first argument cannot be proved then you could argue a misrepresentation and/or negligent misstatement in relation to the description of the vehicle advertised. By advertising the fact that the vehicle is "mechanically excellent and drives perfectly" you are relying on that statement which turns out to be untrue. You will therefore want damages for the amount the vehicle was purchase and/or compensation. Or alternatively compensation for the vehicle to be fixed if you wish to keep it and have it repaired.

Either option will of course take you down the legal proceedings route. It may be that he is banking on the chance that you will not go to court or take it any further. I presume you have the address of the seller or was the vehicle picked up other than the seller's address?

Two links below which show examples of sellers acting as private sellers and not traders.

http://www.tradingstandards.uk/extra...fm/newsid/1372

http://www.tradingstandardswales.org...MarTorfaen.cfm

Wow, thanks! Great response.

Whilst on the phone to citizens advice I did have a nose through his ebay feedback and I can see he has sold another vehicle (within a year) of this one so I will grab a screenshot of that.

I do have the sellers address and really do believe he thinks we will just disappear - we won't. This has never happened to us before and it has really knocked by husband.

During text conversations the seller did make a comment along the lines of 'how do I not know you just made a bad gear change'.

Now I drive an automatic car, but something tells me this isn't something that just happens and this comment probably wont fall much in his favour?

If I can go ahead with the trader argument, can you just advise whether this gives us a little more clout and chance of getting somewhere? Or are they both just as much of a chance as eachother?

Thank you again for your help.

[ostell]

Re: Rights buying a faulty vehicle from a private seller

If you can show that the seller was a trader then as the fault was discovered within 30 days you have the right to reject and get a refund of your money.

[R0b]

Re: Rights buying a faulty vehicle from a private seller

If the seller has only sold one other vehicle in the last 12 months it might be difficult to argue that he is acting in the course of a business. If for example, 2 or 3 vehicles were being sold per month then that could be a different story. You may wish to do some research into the seller e.g. facebook, LinkedIn, Twitter, Gumtree, Autotrader etc. and find out if he is selling other vehicles or whether there is information which shows sells vehicles as a business.

I'm no expert but unless the gearbox was already buggered, a bad gear change is unlikely to cause the need of a new gearbox. Even so, the onus would be on the seller to prove that not yourself.

If you can prove that the seller is acting as a trader, I couldn't foresee any problem in a judgment in court being awarded in favour of you based on what I have said above.

With misrepresentation, there are two types of you can plead, negligent and innocent misrepresentation. The difference between the two is that for negligent misrepresentation you will claim contractual damages and innocent misrepresentation is when the contract is rescinded and the parties put back into the position they were before the contract was entered into. If you can't prove negligent misrepresentation then you could argue innocent misrepresentation at the very least. This is where a representation is made entirely without fault and the seller can show he had reasonable grounds to believe it was true.

The problem with either of the arguments is that civil proceedings is judged on a balance of probabilities, thats to say whoever has the the strongest argument will win. The judge has to believe your side of the story 51% more than the seller. Provided that you submit a strong argument then it might be difficult for the seller to defend, or he may not turn up at all. The seller may not even acknowledge the claim or file a defence which in that case you can apply for a default judgment in your favour.

When it comes to legal proceedings it can be difficult sometimes work out how successful a claim can be. Sometimes this is easy when there is a undisputed debt but a situation like yours isn't the same.

What you can do is case/fact analysis. Simply write down all of your arguments and attach a % for each argument depending on the evidence you have to go with it. Do the same for the seller and then deduct the difference. this will give you a very rough estimate of how successful your claim might be at trial but it should also identify any gaps where you might need some evidence.

I think in your case, the hardest part will be proving the seller is the trader if you only have 1 vehicle sold in a year to go off. As for the misrepresentation, you could have a good chance there because of the wording that has been described on the advert. You have relied on the fact that it was mechanically excellent and you relied on the description and induced you to purchase the vehicle. The seller should have said something like a reasonable condition or to the best of his knowledge which would absolve him from any misrepresentation.

Either way you look at it, there will be an expense in terms of paying court fees which if successful you will be able to recover from the seller. The question will then be whether the seller has the money to repay you and there are various methods of enforcement such as bailiffs, money being taken direct from his salary if he is employed etc.

You also need to be aware that when buying from private sellers there is always the buyer beware situation and you generally have little rights against the seller, except in this case of misrepresentation as to the description of the advert.

[RAYRAY84]

Re: Rights buying a faulty vehicle from a private seller

If the seller has only sold one other vehicle in the last 12 months it might be difficult to argue that he is acting in the course of a business. If for example, 2 or 3 vehicles were being sold per month then that could be a different story. You may wish to do some research into the seller e.g. facebook, LinkedIn, Twitter, Gumtree, Autotrader etc. and find out if he is selling other vehicles or whether there is information which shows sells vehicles as a business.

I'm no expert but unless the gearbox was already buggered, a bad gear change is unlikely to cause the need of a new gearbox. Even so, the onus would be on the seller to prove that not yourself.

If you can prove that the seller is acting as a trader, I couldn't foresee any problem in a judgment in court being awarded in favour of you based on what I have said above.

With misrepresentation, there are two types of you can plead, negligent and innocent misrepresentation. The difference between the two is that for negligent misrepresentation you will claim contractual damages and innocent misrepresentation is when the contract is rescinded and the parties put back into the position they were before the contract was entered into. If you can't prove negligent misrepresentation then you could argue innocent misrepresentation at the very least. This is where a representation is made entirely without fault and the seller can show he had reasonable grounds to believe it was true.

The problem with either of the arguments is that civil proceedings is judged on a balance of probabilities, thats to say whoever has the the strongest argument will win. The judge has to believe your side of the story 51% more than the seller. Provided that you submit a strong argument then it might be difficult for the seller to defend, or he may not turn up at all. The seller may not even acknowledge the claim or file a defence which in that case you can apply for a default judgment in your favour.

When it comes to legal proceedings it can be difficult sometimes work out how successful a claim can be. Sometimes this is easy when there is a undisputed debt but a situation like yours isn't the same.

What you can do is case/fact analysis. Simply write down all of your arguments and attach a % for each argument depending on the evidence you have to go with it. Do the same for the seller and then deduct the difference. this will give you a very rough estimate of how successful your claim might be at trial but it should also identify any gaps where you might need some evidence.

I think in your case, the hardest part will be proving the seller is the trader if you only have 1 vehicle sold in a year to go off. As for the misrepresentation, you could have a good chance there because of the wording that has been described on the advert. You have relied on the fact that it was mechanically excellent and you relied on the description and induced you to purchase the vehicle. The seller should have said something like a reasonable condition or to the best of his knowledge which would absolve him from any misrepresentation.

Either way you look at it, there will be an expense in terms of paying court fees which if successful you will be able to recover from the seller. The question will then be whether the seller has the money to repay you and there are various methods of enforcement such as bailiffs, money being taken direct from his salary if he is employed etc.

You also need to be aware that when buying from private sellers there is always the buyer beware situation and you generally have little rights against the seller, except in this case of misrepresentation as to the description of the advert.

Thank you so much. This information is just great.

I will proceed with the information you have given me and do my research before initiating action.

I really am thankful.