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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 26069
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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I bought what was described by advertisement and on the invoice

Resolved Question:

I bought what was described by advertisement and on the invoice as a Vintage 1962 Fender Stratocaster guitar at an auction I attended for £4,900. Three days later the guitar was examined by an expert who provided his written report and concluded that it was a Counterfeit ( probably Chinese ) with a value of £300. The auction house won't provide a refund because they say that they are not covered by the Sale of Goods acts. Visa won't give a refund because they have no authority over 3rd party sellers. The matter has been reported to Trading Standards, but so far no response. Is there anything that can be done.
Submitted: 4 years ago.
Category: Law
Expert:  Joshua replied 4 years ago.

Josh-2010 :

Thanks for your question. Please kindly RATE my answer when you are satisfied

Josh-2010 :

Do you still have access to the auction catalog please?

Customer:

Yes, published online still viewable google ' shepherds auctions vintage... '

Josh-2010 :

Thanks. Do you have a link?

Customer:

then page 15 I think - shows Vintage Fender Stratocaster 1962 valued £20,000 after restoration

Josh-2010 :

Thanks - do you have a link to the catalogue?

Customer:

I'm not particularly computer savvy - could you google from your end

Josh-2010 :

I have found their website but it sends me to ibidder for their catalogue. Is this right? What was the date of the auction?

Customer:

yes, I - bidder, auction 27th July, page 15 of the catalogue I think

Josh-2010 :

Thanks. I have managed to find the terms.

Josh-2010 :

The terms provide as the auctioneer states that the Sale of Goods Act is excluded. However this does not necessarily mean that the auctioneer is away scott free.

Customer:

I actually attended the auction in person - not online. The invoice description was exactly the same as the description provided online

Customer:

Any suggestions as to where to go next ?

Josh-2010 :

The auctioneer is entitled to exclude SoGA for second hand goods but only in so far as it is reasonable to do so - the exclusion is subject to a reasonableness test. . He cannot make any false statement in respect of the goods and can be liable if he is negligent in his statements.

Customer:

The guitar was uplifted by Shepherds Baillifs for rent distress - assosciate company of Shepherds Auctioneers, the bailiffs uplift and the auction house sells - bailiffs and auctioneers pretty much one and the same

Josh-2010 :

If you can show that they described the guitar negligently or knowingly falsely then you have the basis of a claim against them despite the exclusion of the SoGA because the unfair Contract Terms Act prohibits them from unreasonably hiding behind the exclusion.

Josh-2010 :

You may wish to ask your expert to advise whether it is reasonable to expect an auctioneer to identify that the guitar is a fake. If he confirms that it is reasonable to so expect this would be quite the feather in the cap of your claim.

Customer:

The auctioneer did make a false statement in the advertisement and on the invoice - probably they were taken in - just like me. The expert would not expect the auctioneers to know the guitar was a fake.

Josh-2010 :

Accordingly you may wish to consider contacting the auction house and advise that notwithstanding the exclusion of the SoGA you consdier that they have falsely described the item and have done so negligently and accordingly intend to pursue a claim against them for the difference in the cost of the guitar as a fake and genuine item.

Customer:

The auction house are still not offering any sort of full or partial refund - which court of law would I have to resort to

Josh-2010 :

You can issue proceedings to attempt recovery of your money in the small claims court. Legal costs cannot be recovered and court fees are modest so the risk are very manageable.

Josh-2010 :

The simplest way to issue proceedings is by using the courts online issuing service:

Josh-2010 :

https://www.moneyclaim.gov.uk/

Customer:

yes, that's what I was wondering

Josh-2010 :

You can ask the auction house for details of the seller if ou do not know them - they do not have to tell you but you can ask. If you know who the seller is you can join the seller in on proceedings too.

Josh-2010 :

Is there anything above I can clarify for you?

Customer:

would the seller be their assosciate bailiff company in the office next door ?

Josh-2010 :

Possibly so if they have seized the goods under a warrant but ideally you would seek to obtain some confirmation of this rather than proceed on an assumption.

Customer:

I already have an email from the auctioneer confirming this to be the case

Josh-2010 :

On that basis you can consider joining in the bailiff company in on proceedings as a joint defendant.

Customer:

OK - thanks, XXXXX XXXXX been very helpful - Kind Regards, Paul

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