Distance Sale?

[Manxman]

To be equally fair, it was not clear whether they meant someone else by this representative.

True. I assumed it was the person collecting it

[des8]

Seems quite clear cut to me that you had purchased the car and paid for it prior to your carrier taking delivery of the vehicle from the trader.

[Housebound]

Away from the premises? So surely I have rights to cancel under Consumer Contracts 2013 as they didn't provide rights to cancel and its extended to 12 months

[atticus]

You are seeing the complexity of the situation and law, and the kinds of issues that will be raised in court. This forum can discuss the arguments, but will not be able to give you a definitive conclusion.

[Manxman]

Away from the premises? So surely I have rights to cancel under Consumer Contracts 2013 as they didn't provide rights to cancel and its extended to 12 months

What atticus said at #34...



To repeat what has previously been said, if:

(1) you can prove that this was a "distance contract" as defined in reg 5 of The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (legislation.gov.uk); and

(2) you can prove that the dealer did not comply with paragraph (l) of Schedule 2 of those regulations (ie did not inform you of your rights to cancel a distance sale); then

(a) you have up to 12 months and 14 days after* taking delivery to cancel the contract; and

(b) the dealer is not permitted to deduct any amount from your refund to reflect any loss in value of the car caused by your "handling of the goods... ...beyond what is necessary to establish the nature, characteristics and functioning of the goods."


des8 reckons you can establish (1) despite the dealer trying to rely on the concept of a "holding deposit". And it seems to me that if you had fully paid all monies due some hours before the car was collected and all the paperwork and other formalities had also been completed before collection, then yes, this looks like a distance sale.

Even if this is a distance sale, the likely difficulty you will have is establishing that after seven or more weeks - and almost doubling the mileage on the car - that you are still entitled to cancel the contract and get a full refund.

Of course it might simply be that because the dealer wrongly didn't consider this to be a distance sale from the outset, that they didn't see the need to comply with (2) above so they can't show that they did comply with para (l) of Schedule 2. In which case you would probably have an open and shut win.

But if the dealer thinks you want to return the car and get £37,000 back, I suspect you might be in for a fight at court. And if it gets to court nobody here can give you a definitive answer as to how it will turn out.

I've suggested a couple of times that you approach CAB for advice as I'm pretty certain they have dealt with the same issue on car sales (ie not informing the consumer of their rights to cancel a distance contract). I assume you aren't interested in approaching them at all?


* or up to 14 days after they have given you the necessary information, if that is a shorter period. I assume they have not given you that information since you took delivery. Or have they?

[Housebound]

Nope at given me anything since delivery. I have spoken with Consumer Helpine who have more or less confirmed that it's a distance sale. I'm going to send a report into Trading Standards today, already raised a case with Motor Ombudsman, just awaiting his legal team to get back in touch

[HariSeldon]

Seems quite clear cut to me that you had purchased the car and paid for it prior to your carrier taking delivery of the vehicle from the trader.

I'm not sure it is quite that clear cut. The OP had paid for the car but he hadn't purchased it until the contract was completed and the method of collection of the car muddies the waters regarding that.

If the OP's representative had simply turned up, been handed the keys and driven off then I agree that's clear cut; the contract must have been concluded at a distance.

However, if the OP's representative inspected the car first then that suggests to me the car could have been rejected at that point in which case the contract was only concluded at the point the representative affirmed "the man from Del Monte he say yes!". In court I think that could go either way.

The OP hasn't said this but if for example it turns out that the representative actually phoned the OP after inspecting the vehicle to confirm the car was OK then I'd say that's a fatal blow to the OP's case. Similarly if this ends up in court and the representative confirms that part of their service is to inspect the vehicle and make sure it is as expected before collecting it then I think that also seriously weakens the OP's argument.

The real problem here is the amount of the claim; it's too high for Small Claims or Fast Track so legal costs could be substantial. Especially given the relatively weak reason for wanting to reject the car, the OP needs to be absolutely sure of the basis on which the representative was acting on their behalf.

[Housebound]

The "Representative" was simply there to pick up the car and transport it to me. Like previously mentioned he's obviously going to check the car before loading it up so he covers his own back. All money was paid up BEFORE he arrived and invoice with paid in full ticked was sent to me before the delivery company arrived

[Housebound]

Never was it a case of my delivery "representative" asking me for any sort of confirmation about the car.

[HariSeldon]

The "Representative" was simply there to pick up the car and transport it to me. Like previously mentioned he's obviously going to check the car before loading it up so he covers his own back.

That is very much in your favour and if you haven't already would be the crucial point when responding to the trader; you need to make it absolutely clear that the contract was concluded at a distance when you made the balancing payment and the driver simply collected the vehicle with no further reference to you.

All money was paid up BEFORE he arrived and invoice with paid in full ticked was sent to me before the delivery company arrived

This is also in your favour but not quite as conclusively as the collection as there are lots of situations where the contract is concluded much later than when any payment is made.