Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.
Did the buyer have the opportunity to view the car before he paid - i.e. collected it please?
The auction was live for 7 days, I stated that viewing is recomended. He did not come to view no ask any questions. He lives 400 miles from me.
How did the car get to him?
He did not collect the car in person. He sent a trailer man to collect it. He was coming to collect it, but it worked out cheaper for him to get someone to collect it
When you buy a car privately as opposed to from a business seller you have very limited rights. You have a right to require that the seller has lawful title to sell the car and that the car is as described. That is it. Accordingly as you are a private seller as opposed to selling as a car dealer then "caveat emptor" applies - this means let the buyer beware. Accordingly he has no complaint in respect of any issues that are identified after the event of the sale save as follows unless he can identify a misrepresentation (innocent or otherwise) by you in your description of the vehicle.
There is a caveat to the above in the form to the Road Traffic Act 1988 which makes it an offence to sell a vehicle that is not roadworthy. The RTA does not give a definition of what is "unroadworthy" unhelpfully, but instead makes reference to the following areas that, if not satisfactory, may lead to a vehicle being unroadworthy:• Steering and steering gear• Brakes and braking systems• Tyres;• Exhaust systems;• Seat belts and seatbelt anchorages;• General condition (corrosion, suspension etc).
What if the car is to be found unroadworty from an inspection,
s75, s75(7) says - "Nothing in the preceding provisions of this section shall affect the validity of a contract or any rights arising under a contract." So I cant see how s75 can apply to my case?
It is for him to show that the car is unroadworthy if he wishes to seek to return the car under the RTA. He must show that at the time he bought it it was unroadworthy. If he can show this then he can claim that you have committed an offence.
In order to consider his claims you would need to consider asking him for written evidence to support his claims from an independent expert. If you consider that the report does show that the car is likely to be unroadworthy under the above then you may consider accepting a return. If you do not then you will wish to consider a defence on the grounds of lack of evidence or that the evidence supplied does not demonstrate that the car is unroadworthy.
The Road Traffic Act is not relevant to the terms of the contract between me and the purchaser? is this correct?
s75 does apply unfortunately. sub para 7 provides that the provisions of the clause do not effect the sale contract. The RTA is part of criminal law and do not interfere with private contract law. The contract stands however if the buyer can show that you have breached s75 RTA he can claim you have committed an offence in selling the car and therefore seek damages under your sale contract.
So whilst it is correct to say that the RTA doesn't cancel or alter the sale contract in itself, the seller can potentially use the section in the Act to claim damages under the contract.
what potentially could he claim from that?
Would it turn into a criminal offence? and not a civil matter?
Accordingly key is assessing his evidence. From the issues you mention - he has no claim in respect of heating. His only claims would lie in whether he can show that the cars condition or corrosion make it unroadworthy. Although the car may be illegal in height based on present requirements it does not follow that is was illegal when it was made.
The car is 40 years old, If an AA man gave it a head to toe inspection I'm not sure how it would fair up. And if it is found to be unroadworthy the inspection costs would land on my door step, aswell as paying for transportation to and from Scotland.
If he can show that the car was unroadworthy, it constitutes a criminal offence under the Road traffic act however, in order to be guilty of a criminal offence, and action must be brought in the Magistrate's Court which is not what your buyer has done
has brought an action in the County Court cannot come down criminal penalties so you need not concern yourself with regards to any criminal liability which is difficult to prove in any event
If I send back my CCJ with my defence it should close the sale of contract case.....Could he then open up a Magistrate's Court case?
I would be most surprised if he were to seek to bring an action in the magistrates court because it is quite difficult for a layperson to prosecute criminal case and doesn't hold any particular benefits for him because his primary goal is to recover his outlay. If you choose to defend claim on the basis that you are not convinced that the car is unroadworthy as he claims then the matter will proceed to court and it will be for the buyer to prove on the balance of probability that the car is indeed unroadworthy for which he will require expert evidence.
if he is successful in convincing the judge that the car is indeed unroadworthy them the worst case scenario is that the judge will order that he refund the cost of the car the costs of transportation. There will also be some relatively limited legal costs in terms of court fees they solicitors costs and so on cannot be claimed.
Accordingly, if you doubt the evidence that he has supplied to you or that the car is in fact unroadworthy, your choices are to give up and return the price of the car together with any other costs that you can negotiate between you with the buyer such as transportation costs and so or defend the claim in the County Court with the risk that in addition to the above, you may end up having to pay some court costs on top. If you believe you have a reasonable chance of defending the opposition then on the above analysis, defending the claim would appear to be the appropriate course of action
The burden of proof is upon the buyer to demonstrate that the car is unroadworthy
Is there anything above I can clarify for you any further?
I'm just reading your summary, one second....
So I should proceed with defending my CCJ, what he has opened up there I'm all good with Buyer Beware. But if he opens up a Magistrate's Court case I will need to take have a good think about the evidence that he has supplied. and take it from there
I would be very surprised if he considers magistrate court action. It is unlikely to make any sense financially to him.
However in the highly unlikely event that he does do this obviously you may wish to consider your position again.
Are you happy with the information I have provided to you above or is there anything above I can clarify for you any further?
If he wins in magistrate court, would he still be out of pocket as he carnt claim all his layers fees etc? H'es afer £3000 for the car and £400 for transport. Is this a small amount of money to be taking to magistrate court in your oppinion, If he came to you with this case would you advise him fight in a magistrate court or take it a a lesson learnt buying an old car blind?
A magistrates court cannot award any damages under the contract. All they can deal with is the criminal aspect and hand down a fine. So the buyer gains nothing. As such he is unlikely to even consider pursuing the matter in the Mags court. If he were my client I would certainly not advise considering the Mags court as he gains nothing and the burden of proof is higher than the county court. It makes no sense for him to consider the Mags court in my view
The county court is the only court that makes sense to try but only if he is reasonably certain that he has satisfactory independent evidence that the car is not roadworthy as provided for by the RTA.
Is there anything else I can help you with at this stage?
I think im done,
Thanks. If I can assist any further as the situation develops please do no hesitate to let me know.
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