Considering Taking Private Car Seller to Small Claims

[Nuluvius]

I recently bought a car and the advert very specifically stated that it did not have any warning lights or faults and that everything worked.

However the vehicle has an intermittent, yet very reproducible and quite serious fault which manifested on the way home from picking it up from the seller: Sometimes on a key cycle the airbag system registers a fault and the airbag warning light will remain illuminated. I have a timestamped photograph of the dashboard with the mileage shown as proof that this occurred on the same day that I picked the vehicle up.

I have since contacted the seller regarding this and he has made it clear from his reply that this is not something that he is prepared to accept responsibility for. I am obviously going to get a diagnostic performed but have had to find and arrange for this and am currently waiting for the appointment.

I am wondering if there's any grounds for me to take the seller to Small Claims Court and if so to get a sense as to how strong of a case I may have.

I am aware that there is the stipulation that legally, the seller must accurately describe the car and not misrepresent it (eg tell you something about the car which isn’t true). The only caveat is that the sellers advert also states (somewhere near the bottom) that the car 'is sold as seen'. Although I suspect that this may not matter given that it stated no warning lights or faults and that everything worked.

Very appreciative of any help and advice regarding this matter.

[TR-lawyer]

The grounds, as you indicated, are whether or not there was a misrepresentation/misdescription. A misrepresentation is an untrue statement of fact which induces the other party to enter into the contract. The evidence of the examination would be useful to discover whether he/she thinks the seller knew when he sold it that there was a problem (ie did everything work) and therefore support the view that he described the vehicle knowing there were faults.
However, if at the time he made the description there were no warning lights and things were "working" that would not be a misrepresentation even if he knew there was an underlaying problem which he had just masked (eg. by re setting error messages and knowing the messages [faults] would reappear). That is because "sileince" is not generally a misrepresentation, but sometimes a statement that does not present the whole truth might be regarded as a misrepresentation. But I would emmphasize the word "might".
Buying from a private individual is always a lottery as you don't have the protections of the Consumer Rights Act; it is always best to ask specific questions and get specific answers or take along a mechanic before you decide to buy.

[Nuluvius]

The grounds, as you indicated, are whether or not there was a misrepresentation/misdescription. A misrepresentation is an untrue statement of fact which induces the other party to enter into the contract. The evidence of the examination would be useful to discover whether he/she thinks the seller knew when he sold it that there was a problem (ie did everything work) and therefore support the view that he described the vehicle knowing there were faults.
However, if at the time he made the description there were no warning lights and things were "working" that would not be a misrepresentation even if he knew there was an underlaying problem which he had just masked (eg. by re setting error messages and knowing the messages [faults] would reappear). That is because "sileince" is not generally a misrepresentation, but sometimes a statement that does not present the whole truth might be regarded as a misrepresentation. But I would emmphasize the word "might".
Buying from a private individual is always a lottery as you don't have the protections of the Consumer Rights Act; it is always best to ask specific questions and get specific answers or take along a mechanic before you decide to buy.

Thanks for that, it is pretty much as I'd suspected, though it is reassuring to have it from someone else. I will update once I've obtained some diagnostics.

[Kati]

tagging des8 R0b too xx

[R0b]

Hello,

There are three types of misrepresentation, fraudulent, negligent and innocent misrepresentation, all of which have different remedies. There is an alternative cause of action which lies in negligent misstatement (and is sometimes people confuse the two) but generally you would want to go down the misrepresentation route because, in negligent misstatement claims you have to establish that there was a 'special relationship' which can cause difficulties whereas under misrepresentation, you only need to show that the representation was untrue and the burden of proof then shifts to the seller to prove that at the time of advertising the car he believed it to be true. In truth, that can be difficult for the seller unless he has some unquestionable evidence to hand. Unless you have strong evidence confirming fraudulent misrepresentation, it is not worth pleading in any claim as the court takes allegations like that very seriously and if found to be unproven, may land you with costs.

For negligent misrepresentation, the remedy is rescission of the contract and you are entitled to all monies paid under it, unless the court chooses to make an award of damages in lieu of rescission. If the seller can show that he had reasonable grounds for believing that there were no lights showing at the time but nonetheless a misrepresentation occurred then you could claim innocent misrepresentation and the remedy for that again is rescission unless the court awards damages.

Do you still have a copy of the advert for the car?

Did the advert show any photos showing no lights on the dashboard?

Did you test drive the car prior to purchase?

Was there a discrepancy between the mileage on the car as advertised and when you came to collect? That could be an indicator that the seller may have been aware. Also if the price was sold for less than it might have reasonably been obtained for, an inference could be made as to the seller's knowledge that there were some problems i.e. intermittent warning lights.

I also wonder, perhaps des8 can advise but if there is an airbag warning maybe it has been in a previous accident?

[des8]

The airbag light illuminated "on the way home".
Presumably you were able to examine the car before actually paying for it, and had the opportunity to test drive it, and at that point the light remained off?

You say the fault is intermittent, yet reproducible so presumably you know what the fault is.?
More info might be helpful.


There are many reasons for these lights to come on.
In principle it is a simple system of sensors , a module to read the signals and a bag with a small explosive charge. And it is self monitoring.
Those sensors are all round the place, even the seats which get slid forwards and backwards and bounced upon, which can result in stretching of wires.
Suddenly the driver changes, and the change could be enough to set a sensor off.
The sensors themselves fail.

Don't know what vehicle you have, but have you had the module read?
Some of them record historic information which may help you if you are looking for misrepresentation

[Nuluvius]

There are three types of misrepresentation, fraudulent, negligent and innocent misrepresentation, all of which have different remedies. There is an alternative cause of action which lies in negligent misstatement (and is sometimes people confuse the two) but generally you would want to go down the misrepresentation route because, in negligent misstatement claims you have to establish that there was a 'special relationship' which can cause difficulties whereas under misrepresentation, you only need to show that the representation was untrue and the burden of proof then shifts to the seller to prove that at the time of advertising the car he believed it to be true. In truth, that can be difficult for the seller unless he has some unquestionable evidence to hand. Unless you have strong evidence confirming fraudulent misrepresentation, it is not worth pleading in any claim as the court takes allegations like that very seriously and if found to be unproven, may land you with costs.

For negligent misrepresentation, the remedy is rescission of the contract and you are entitled to all monies paid under it, unless the court chooses to make an award of damages in lieu of rescission. If the seller can show that he had reasonable grounds for believing that there were no lights showing at the time but nonetheless a misrepresentation occurred then you could claim innocent misrepresentation and the remedy for that again is rescission unless the court awards damages.

Thank you that's very helpful to be aware of.

Do you still have a copy of the advert for the car?

Yes I do.

Did the advert show any photos showing no lights on the dashboard?

Yes it had photos and no they did not show any warning lights.

Did you test drive the car prior to purchase?

Yes and no warning lights appeared. That said however, the nature of the fault is intermittent and only manifests on random key cycling. Personally I have never thought to key cycle a vehicle multiple times when inspecting (I shall from this point forth though).

Was there a discrepancy between the mileage on the car as advertised and when you came to collect?

No, the mileage was accurate.

Also if the price was sold for less than it might have reasonably been obtained for...

The price was one of the distance checks that I did perform and found it to be reasonable for the make, model, age and described condition. The other check that I performed was the MOT history, and all of that was very good indeed.

...if there is an airbag warning maybe it has been in a previous accident?

That is an interesting point to consider.

The airbag light illuminated "on the way home".

Correct, it was some distance so a stop was required.

Presumably you were able to examine the car before actually paying for it, and had the opportunity to test drive it, and at that point the light remained off?

Correct, and as I mentioned, I didn't think to try key cycling multiple times when inspecting.

You say the fault is intermittent, yet reproducible so presumably you know what the fault is.?
More info might be helpful.

Indeed it is intermittent yet reproducible. When one starts the vehicle the system goes through a self test, the light is on for a few seconds and the usual behaviour is for the light to switch off and remain off until the next key cycle. Sometimes the light will switch back on again and remain on until the next key cycle (or for a number of other key cycles until one may switch it off again). The light is not on when the ignition is off, it self tests and will re illuminate shortly after.

I do not know what or why this is... and there's not declarable pattern that I can detect thus far.

There are many reasons for these lights to come on.
In principle it is a simple system of sensors , a module to read the signals and a bag with a small explosive charge. And it is self monitoring.
Those sensors are all round the place, even the seats which get slid forwards and backwards and bounced upon, which can result in stretching of wires.
Suddenly the driver changes, and the change could be enough to set a sensor off.
The sensors themselves fail.

Yes indeed, I am aware of some of the specifics of the system as we have another vehicle that is currently going through a repair for an airbag sensor/wiring related issue.

Honestly I am not out to get this person, I would love to give them the benefit of the doubt and move on with life, and as you have rightly said, it could be anything. But if it can be proven to have been a historic problem, especially if it is uneconomical to repair (and from a safety aspect as we take children about in this vehicle) then I will do whatever it takes to minimize our losses on this adventure.

Don't know what vehicle you have, but have you had the module read?
Some of them record historic information which may help you if you are looking for misrepresentation

An excellent point, when I take it for diagnostics I shall request a full data dump if possible.

[R0b]

Unless there is something obvious you may have difficulties in bringing a successful claim and I suspect it will turn on the actual wording of the advert. If the advert suggested that there were no warning lights and a photograph showed that then strictly speaking that could be deemed true, unless you can show the seller was aware otherwise.

However, despite the above, if the advert said that "everything was in working order" or "the car was fault free" and it turns out to be untrue as per your discoveries, then that could warrant a claim for negligent misrepresentation or at the very least, innocent misrepresentation.

All of this might sound pedantic but in many court cases, nothing is ever straightforward and a large percentage of them rest on the specific details and interpretation.

Further investigation would be necessary and get all your facts straight before even considering any potential claim.