Private sale gone so wrong :(

[HaggisnNeeps]

I am not sure where to post this so please move if its in wrong section.

I advertised my old suite on Gumtree 6 weeks ago. Female who lives 60 miles away viewed and gave me full asking price there and then of £150 - I had only wanted a deposit to secure but she was happy paying that. I gave her a receipt and pick up date of Saturday 26th November at 9am. Last week I text reminders and no reply so I called her using a different number and she answered but sounded vague and got off phone quickly - this left me with bad feeling!

Saturday 9am arrived and she never showed up. My new suite arrived and we had to put old one out the front as my living room tiny & couldnt room TWO SUITES! The west of Scotland had awful gales & bad rain so I covered it as best I could. I was CONSTANTLY calling her and texting but nothing!!!!!! Then I had neighbours complaining as we only have a tiny front garden - no fence and it was partly on our footpath causing an obstruction then we were getting strangers knocking the door asking if they could take it WE SAID NOOOOOOOO!!!

Come the next day still no contact and by then my neighbour came to my door and said that it was a fire hazard and we had to do something about it plus the stream of strangers coming continued I text buyer AGAIN saying please contact me or else I need to get rid of this - they never contacted me - I placed another ad in gumtree on freebies section and someone arranged to come take it Sunday evening. I text her again telling her this saying to please respond. She never so suite went. I then text her to say its gone and INSTANTLY she text saying to refund her................

There was no way I could have resold that suite as it was soaked through and been outside for 2 days in gale force winds and terrible rain. I think she had simply changed her mind and just wanted her money back - what do I do - do I need to refund her despite all of the above She is HOUNDING ME with non stop texts - am so sick with worry here - am a single mum and to refund the £150 just like that is impossible as I dont have it

[labman]

Re: Private sale gone so wrong

I assume you still have the texts you sent to her. I assume you've also got witnesses to whom you have told the story, who will verify what you are saying is true.

I'd be inclined to tell her she will have to take you to the small claims court in order to get her money. You appear to do everything you could to get her to collect it, and she breached the verbal contract that was made - ie- the price to be paid and when the goods were to be collected.

[HaggisnNeeps]

Re: Private sale gone so wrong

Thank you for replying.

Yes I still have all the texts and as its on my Iphone it makes it all so much easier to read as on the one page. Witnesses - my neighbours and also the person who got the suite has text me thanking me for the suite - plus still have the advert (its no longer live but still on my account) on Gumtree from Sunday.

Today I have had over 20 texts now from her - basically telling me she is coming up to my door with the police as I am a fraudster I called the police explaining it all and they said its a civil matter and to get proper legal advice. I think I am going to have to see a solicitor about this.

[Gorang]

Re: Private sale gone so wrong

Personally (but this is only my opinion) I would do as labman has suggested above

I'd be inclined to tell her she will have to take you to the small claims court in order to get her money.

send that via one txt then ignore the rest of the txts and phone calls from her, don't get into a txtin marathon with her, just ignore her as I suspect she will get bored and stop,I know it will be hard to ignore tho

I suspect she is now txting for the reaction, so if she does not get a reaction then boredom will soon set in

and if she does start a claim then we can put a defence together for you and probally a counter claim for all the harrassment you have had from her

[charitynjw]

Re: Private sale gone so wrong

+ a 'change of position' defence?

[HaggisnNeeps]

Re: Private sale gone so wrong

charitynjw - am sorry but what does that mean? (sorry to be so dumb!)

I am going to see what happens over the next day or two with her - the texts got so bad am considering changing my number.

I am so grateful for those that have taken the time to reply to me - thankyou

[labman]

Re: Private sale gone so wrong

This type of defence allows you to set against the £150 the amount of 'disenrichment' (the loss of the suite, even if not to her) you've sustained, which you wouldn't have if she'd done what she said.

[charitynjw]

Re: Private sale gone so wrong

charitynjw - am sorry but what does that mean? (sorry to be so dumb!)

I am going to see what happens over the next day or two with her - the texts got so bad am considering changing my number.

I am so grateful for those that have taken the time to reply to me - thankyou

Any apology should be from me for not explaining!

In a nutshell, a 'change of position' defense is that, given all the circumstances of your situation, you honestly believed that you were entitled to the payment & have spent it elsewhere.

For a more technical explanation, it concerns the law of restitution & the Lipkin Gorman defense (Lipkin Gorman (a firm) v Karpnale Ltd.

(I'm sure that others can expand on this!)

[Gorang]

Re: Private sale gone so wrong

labman, Charitynjw

thank you for that explainations

is there any defences on the site of this nature that you know of, as I for one had never heard of this type of defence before

or anything else on this I could read up on apart from Lipkin Gorman (a firm) v Karpnale Ltd.

As I would like to know/learn more about this type of defence

[labman]

Re: Private sale gone so wrong

Gorang,

pm coming in so as not to confuse OP.

[Guest]

Re: Private sale gone so wrong

Any apology should be from me for not explaining!

In a nutshell, a 'change of position' defense is that, given all the circumstances of your situation, you honestly believed that you were entitled to the payment & have spent it elsewhere.

For a more technical explanation, it concerns the law of restitution & the Lipkin Gorman defense (Lipkin Gorman (a firm) v Karpnale Ltd.

(I'm sure that others can expand on this!)

Hi not sure where this is coming from didnt the money have to be refunded in this case you mention. Seem to remmember the change of position was due to a differnt approach to obtaining a refund wasnt it?

If any one was unfairly enriched wouldnt it be the OP, she had the money and the goods.

Was there a contractural obligation for the buyer to collect the goods within a certain time or fortiet the money. What efforts did the OP make to refund the cash when it bacame obvious the sale had fallen through, how can the seller not be sure the goods wernet sold somewhere else. Shouldnt the seller have made sure the contract was concluded before distroying the goods, duty of care, i could go on, and on

Repay the money.

Peter

[charitynjw]

Re: Private sale gone so wrong

"Where an innocent* defendant’s position is so changed that he will suffer an injustice if called upon to repay or to repay in full, the injustice of requiring him so to repay outweighs the injustice of denying the plaintiff restitution"

Lord Goff
Lipkin Gorman [1991] 2 AC 548, 579.

*encompasses the concept of 'innocent wrongdoer'.


"The defence should be regarded as founded on a principle of justice designed to protect the defendant from a claim to restitution in respect of a benefit received … in circumstances in which it would be inequitable to pursue that claim, or to pursue it in full"

[Dextra [2002] 1 All ER (Comm) 193, 205 (Lords Bingham and Goff for Lords Bingham, Goff, Hobhouse, Sir Martin Nourse and Sir Patrick Russell) (emphasis added).]


Each case will turn on it's own facts, I reckon.

[HaggisnNeeps]

Re: Private sale gone so wrong

Hi not sure where this is coming from didnt the money have to be refunded in this case you mention. Seem to remmember the change of position was due to a differnt approach to obtaining a refund wasnt it?

If any one was unfairly enriched wouldnt it be the OP, she had the money and the goods.

Was there a contractural obligation for the buyer to collect the goods within a certain time or fortiet the money. What efforts did the OP make to refund the cash when it bacame obvious the sale had fallen through, how can the seller not be sure the goods wernet sold somewhere else. Shouldnt the seller have made sure the contract was concluded before distroying the goods, duty of care, i could go on, and on

Repay the money.

Peter

Hi Peter I can very easily prove that the suite wasnt resold - as I have the original advert from the freebies section of Gumtree - then the reply from the man who did collect etc - plus we have had torrential weather past week which has been making headlines and the suite was absolutely soaked - it could only have been given away free by then!!!

[labman]

Re: Private sale gone so wrong

I stand by what I said - let them try to take you through the small claims court. :tinysmile_grin_t:

[HaggisnNeeps]

Re: Private sale gone so wrong

Was trying to leave some "thanks" but cant seem to -- must be because I am new I think! Well thank you to everyone for taking the time out to help me - very grateful