Hello, my name is Ben and it is my pleasure to assist you with your question today.
When did you buy the car?
ok let me get my advice ready please
When a person buys a second-hand vehicle from a private seller, their rights will be somewhat limited and will not be as extensive as if they had bought it from a dealer. There will be no protection under consumer legislation, such as The Sale of Goods Act.
In general, there is no legal requirement for the vehicle to be of satisfactory quality or fit for purpose. Therefore, the buyer will only have rights in the following situations:
• If the vehicle did not match the description given, whether in the advert or any subsequent discussions. This would amount to breach of contract or misrepresentation
• If the seller broke a specific contractual term – e.g. if they fail to do something they specifically agreed to, for example, fix certain faults or provide an MOT. This is also going to be a breach of contract
• If the vehicle is unroadworthy – this occurs if its brakes, tyres, steering or construction make it unfit for the road. This will also be a criminal offence.
In the first instance, any issues with the vehicle should be resolved directly with the seller. You can also use threats of legal action as a negotiating tool, although I would only recommend formal legal action if you have valid grounds where you can show your situation falls within one of the circumstances listed above.
Whether you are successful at court is anyone’s guess – no one can predict the outcome, whatever the issues or the evidence you may have. It depends on many factors and also on the judge on the day. Also, even if you win, you are not guaranteed payment – the seller can ignore the court judgment and it would then be for you to pursue them for that, so you could end up spending a lot more money trying out different enforcement methods until one works. So bear all of the above in mind because court always carries a degree of risk. But I would suggest you try and resolve this with the seller, perhaps by threatening court action and hoping they resolve this in some way to trey and avoid being sued.
I have tried resolving this with the seller but with no success. So I need advice in what sort of evidence would help my case.
I have an engineers report that states the car had the problem for quite some time, I've kept the condemned parts, what else can I do?
in such cases you would usually require the original advert and any related documents for the purchase, details of the fault, like engineer's report or any other documents that may explain what was wrong with it, plus evidence of your expenses, like receipts
I have the original advert, got receipts, engineers report etc. Do I need to prove he knew the car was already damaged and if so what sort of evidence would I need to prove this?
you would have to prove it but obviously that may be impossible to do directly as getting into their mind so to speak and showing what they knew and did would be impossible. So it would come down to a judge deciding on the balance of probabilities whether they knew about it or not, that may be decided based on the evidence they give, the defence they have etc
It tuned out that the person in question only owned the car for 3 months and in that 3 months he changed the spark plugs, this I believe was him having the problem with the car and him starting to chase the problem, as this was our mechanics first port of call. Would this be something I could use in court?
yes you may if you have the information that this was the case - again if you thing this is what caused the problems, get the mechanic to comment on it
Also he mentions in his advert that he was selling due to having a baby, now it turns out that the baby was already or about due when he purchased the car, therefore again I believe this was his attempt to hide the fact the car had problems by giving a so called reason for sale.
well that will unlikely change the position in relation to the faults, but it can highlight he may not be as trustworthy as he would like to appear. It is a minor point here really
once at small claims court, how does it work?
you submit the claim, they submit a defence, you are then asked to attend with a judge - it is not held in a formal court room, usually in just a room with all parties and the case is discussed, the judge considers each side's position and then will make a decision. That is if the defendant turns up or bothers to defend this in any way
do I need to represent myself, and in what way should I do this? Do they just read though all the note of the case sent in and then the judge ask questions on that or do I have to stand up and present the case?
yes the small claims court is a venue where legal representation is rarely used. It is quite informal, don't expect to be standing up in court and making submissions - as mentioned you are usually all in a room and discussing the case with the Judge - he will look at what you have provided and ask questions as necessary - they take the lead
Could I ask a friend to talk on my behalf as this would make me feel very nervous and worried I would get tongue tied and not get all my points across very well
no harm in asking but it would be for the judge to decide whether to allow this - they will consider your request
So realistically do you thing I have a case? or should I cut my losses
that is an impossible question for me to answer - I simply do not have enough details to form an opinion on that so whilst I can certainly advise you on your rights and what you can do, I cannot give you an opinion on whether to actually go ahead with it, I am sorry
Would help to have the engineer with me as a witness?
yes it may do, but in such cases a report by them outlining the faults and their professional opinion on the matter can easily be sufficient
just thought it may be useful just in case the judge has any further questions in regards to this that I would not be able to answer.
Why is it I need to prove he knew of the problem was present? because the sale of goods act doesn't state anything about intension. Do I not just have to prove that the car was misdiscribed regardless of vendors knowledge of the problem?
this is not a Sale of Goods act matter, it does not apply to private sales
But 'misdescribed' is part of the sale of goods act whether private seller or dealer surely?
but the SGA only applies to consumer purchases, so a business selling to a consumer, not private sales
But it states in the sga section13 and 14 that all goods must meet descrition wheather private to trade
Sorry I was referring to the Sale of Goods Act 1979
What I was trying to say is that you are the one making the claim
As such you have to show that what you are claiming is correct
Otherwise anyone can make whatever claims they want and then try to win by hoping the defendant cannot prove them wrong
so am I. Does it not state this in the sale of goods act then?
well you can check it here: http://www.legislation.gov.uk/ukpga/1979/54
well I have looked but it's not the most easiest document to make sense of.
I understand, so to make it simpler I will have to go back a few lines and say again that the issue is you are making the claim and you need to show that your claim is valid, otherwise you can just make any old claim and just because the other party finds it difficult to defend that, you can win, but it does not work like that - it is for you mainly to convince the court you have reasons to win the claim and they will decide whether that is a case through a combination of ways, like going through the documents and asking both parties questions
Yes I understand this, but the question I am asking is does it state in the sale of goods act that items must fit there description, whether private seller or dealer?
not explicitly but the way you can argue it is that the Act says at the beginning it applies "to contracts of sale of goods" (so any contract) and that the specific exceptions that are not covered in private sales are for the item to be of satisfactory quality or anything to do with the quality or fitness of the goods (this exclusion is in section 14)
So the rights under section 13 should apply in private sales
But this is about interpretation of the wording and what a lawyer would argue
My point being purely that if I state sale of goods act that I will be stating it correctly, I understand it's then down to me to prove it did not fit the description.
sorry I mean if I quote sale of goods act
yes you may state it, but remember that this is the small claims court, it is not for you to get involved in finding the specific laws and sections of what applies here - you are not legally qualified and the court will not expect you to know the law - that is why the small claims court was introduced, where individuals can take on their claims without having to involve lawyers and incur additional expenses
So do you feel this will go against me? The only reason I quote this is when all this happened I needed to find out if there was anything I could do about it, and to be honest it has been impossible to find out. As I sure you can appreciate it is quite frustrating that a buy a car in good faith and then need to spend over half the value again to repair it, there should be some come back on the seller for this, I had the car for one day before it ended up in the garage. hense why so much research.
I appreciate that but I must state again I cannot form an opinion on whether you will be successful or not - I am here to tell you about the law and your legal position, I can't tell you if you will win or lose. You have rights which you may pursue, so you are covered in that respect, but what happens afterwards is not something I can guess...because that is exactly what it would be - just a guess and it would be unprofessional for me to say anything about it
I am going to pursue this what I wanted to know is what is the VERY best way to do so and how to do so. So basically is what I was hoping for is if I was to have a solicitor how they would fight this case.
Well a solicitor would sit down with you, go over any documents you have, ask you about the situation and help you prepare your claim form and any witness evidence. But this takes time and costs money - lawyers' time is not cheap, so you will not be able to get full details of how a case is prepared here I am afraid - you either go and instruct a solicitor to do that for you, or you don't. This is a Q&A site where we can advise you of your rights, but to tell you how to prepare a case in the best way is impossible
so based on that is there anything else you would like me to deal with in relation to this?
Do I need to send everything in with the judges directions ie receipts, engineers report, advert and my statement of why I'm taking him to court, or do I just bring that all on the court day?
you will be told in due course - at first you simply fill out the claim form and provide brief details of your claim, then you will be expected to provide some more details but every step you will be told what to do by the court
Well unfortunately so far this hasn't been the case, only through lots of research and head aches have I found out what I have found out. When appling to small claim no information was given, I'm now had the questionnaire to fill in, but doesn't state if I need to send anything with it or what I should do next.
Last thing I want to do is make a error or miss something at this stage that will jeopardise my case.
have you made the claim yet?
I've put the claim in
where? online or posted to the court?
and what stage are you at exactly, what has happened so far?
I have the questionnaire, this is why I need info so I can make an informed decision on if I should take it to court or cut my losses/
is that what you have received?
yes looks similar
so what is the issue with filling out exactly?
I'm filling it in but it doesn't explain very much?
you do not need to send any documents with the form just complete it by following the notes on the last page
it does state you can send documents but that is not the formal stage where you do so
this is just a questionnaire to decide how the claim is to be allocated and what directions are to be issued
But where it states witnesses, is that just me, should my partner be one as he was there when I purchased the car, do I bring in the engineer as a witness, do I need to send a copy to the defendant/ like I said it,s not explained very well, what happens after I've sent it, how long do I wait for a court date, who will be in the court room with me, do the witness get called in separately
ok I will be happy to provide more advice on this but this is now going slightly over what the original query was for - we have now been discussing this for 3.5 hours so for the current fee it would be uneconomical; for me to continue much longer, after all you only asked for medium detail and it is easily becoming a high detail answer now. So if you want you may post the question about completing the form as separate one for my attention and I can go through it with you. Thanks
sorry I was under the impression that if I paid the fee I could 'chat back and forth as much as needed to get my questions answered- no additional fee'?
yes correct but we could carry on for days, you could ask me to help you with every single aspect of the claim all the way to the hearing, so it is only supposed to be a reasonable discussion or time and after 3.5h I will have to consider cutting my losses as I could carry on for hours and get nothing in return unfortunately
So what exactly does this mean?
if you want further advice on how to complete the form then you will need to ask this in a separate question
so pay more?
if you open another question then yes you would, but I cannot continue providing more advice here unfortunately as it is just becoming uneconomical for me now
are you able to leave a rating for the advice so far please, then you may continue separately whenever you wish, thanks
I will leave a rating, but I will not be continuing. thanks
ok I understand, thanks
Hi, not sure if the rating registered, can you please confirm - thanks
it says I can not rate you as you,ve not finished answering.
you should be able to, if not you can just type it instead on here, many thanks