Second hand car problems

*Anna* wrote: »

Just a quick update the garage sent someone out to look at the car this morning and it seems the whole of the oil filter fixing is loose, he could not tighten it because the whole lot was moving. (he said he had never seen this before) They were supposedly sending a pick up truck to collect car straight away however they still have not arrived.

I am losing all faith with them, they seem to tell me one thing and do another, what I would like to know is would I be within my rights to just ask for a refund?

Thank you.

This is where advice becomes difficult. There are plenty of people on here who will say 'yes' reject the car. But that doesn't make them right. My own opinion on this is that it is kind of 'yes' and 'no'. Law is not always clear cut (in fact, arguably it is very rarely clear cut), it only becomes clearer through case law - that is when people go to court, lose, and appeal to the higher court, then 'case law' is created

You had warranty <<< that's good, because it implies an expectation of trouble free motoring As shown in Lutton v Saville Tractors
BUT Luton v Saville Tractors was a 3 year old performance car, and the judge (Carswell) said
"that if the vehicle was an older model, with higher mileage, sold at a lower price and did not create expectations of high performance, defects of the kind detected would not have rendered it unmerchantable." But I don't know what the defects actually were. In your case the car is 8 or 9 years old and it may be argued that even though there was a warranty the kind of defects found do not make the vehicle 'unsatisfatory' (no longer called 'unmerchantable' the words were changed in 1994, how this might affect your case is anyones guess as to my knowledge it has not been tested in respect to used cars but see Thain v Anniesland below).

You have had the car only a short time Just over a week? << that's kind of good (for the purposes of rejection) because you have to reject goods rather quickly after purchase if you find fault with them. 1 week I would have thought is short enough to be allowed.... you see it is not defined anywhere how long you have got until you can no longer reject, but when this invisible line in time has been crossed you are said to have "accepted" the goods even though you never said "I accept them" Which is why I said give them a letter saying you are refusing to accept the goods under the Sale of Goods Act pending the vehicle repair to a satisfactory condition. As shown in:
Farnworth Finance v Attryde (1970)
Farnworth supplied a new motorbike on hire purchase to Attryde. Delivery was made in July. From the beginning the motorcycle gave trouble and was returned to the dealers and manufacturers for repairs. These were only partially succesful and the motorbike cont. to give trouble until November when Attryde rejected it He had paid 4 installments. The motorbike had covered 4K miles and given 7 weeks use since delivery, 4 months earlier. Farnworth disputed the right to reject.
Held Attryde was entitled to reject. He had not affirmed the contract; in fact he made it plain that he would not affirm unless the defects were remedied.
NB This was not a sale governed by SOGA but a hire purchase agreement where the right to reject was governed by common law.***

Porter v General guarantee corporation
Porter took delivery of a car on hire purchase at the end of January. On 4th March he tried to reject it. Attempts were made to repair but Porter finally rejected on 20th March
held The rejection was not too late.
NB This was not a sale governed by SOGA but a hire purchase agreement where the right to reject was governed by common law.***

*** The bits in red are of concern as we are in your case using SOGA not common law so I don't know how that could affect it.

The right to reject can not exist at all in cases involving used cars, for example:
Thain v Anniesland tradecentre (1997)
Ms Thain purchased a car from a dealer, Anniesland the car was 5 - 6 yrs old Renault 19 and had cocered approx 80K miles.
Ms Thain paid £2995 for the car, she declined an option to buy a 3 month warranty, after 2 weeks she discovered a gearbox bearing was worn and decided to reject the car, a repair being uneconomic, the dealer offered a number of replacement cars, but Ms Thain insisted on a full refund claiming the car was not of satisfactory quality, the dealer refused.
Held The relevent aspects of s14. were 'fitness for purpose' (S 14(2B)(a)) and 'durability' (S 14(2B)(e)). The gearbox bearing was not faulty at the time of sale and so the car was at that time fit for its purpose, the defect could have emerged at any time due to normal wear and tear given the age and mileage of the Renault. Therefore the cars durability was a matter of luck. The price was reasonable, much less than the new model. In the circumstances a reasonable person would accept that there was a risk of expensive repairs. Ms Thain could have covered the risk by purchasing a warranty thus the car was of satisfactory quality.

In this case the car was supplied in working order, and failed soon afterwards it was not a fault that was failed at the time of supply (because when this part failed the car became undrivable) In your case it is easily argued that the fault was there at the time of supply, so rejection would be easier. This case was decided with the new wording 'satisfactory' not 'unmerchantable'.

*******************************************
So from all of the above we have to decide what applies in your case. Your fault was there at the time of sale, you have driven it with that fault, and worringly how many miles were driven by the previous owner with the fault? And is this oil fault now showing itself in the fault codes for the knocking sensors and throttle motor? i.e. has damage been done?

Well I understand that you don't want to wait and find out, and possibly find out when your 3 month warranty has run out.

So what can you do?
First of all I would be polite and not use legal words like "reject", I would say "Can I have a refund, as I'm sure you understand this is a serious fault and we don't know how many miles it has done, with possibly very little oil reaching the cylinderhead" Hopefully they will agree, in which case you ask for an immediate refund to be processed no waiting till next day, if they won't do it, then ask them for written confirmation that they are accepting the return of the vehicle and will process a full refund ASAP.

If they don't agree to refund, have your pre written letter in your bag to hand over, which will say something like...(and I welcome other peoples input here as to good wording of a letter of rejection)
"Due to the serious oil leakage fault found on the engine of the car I purchased on xxxxx aswell as various fault codes and engine management & ABS warning lights showing on the vehicle I wish to formally reject the vehicle under the Sale of Goods Act 1979 (as amended), S14. (2), (2A), (2B) (a)(c)(d) & (e) Please refund my credit card with the full purchase amount."

http://www.which.co.uk/advice/returning-goods-your-legal-rights/how-to-complain/index.jsp

It might be an idea not to reject it until they have it back in their possession - remove all your belongings from the car and press them tomorrow to come and pick the car up. But if they don't come and get it, well you may have to give them a letter of rejection tommorrow even thought it is still on your property.

What happens next? Hopefully they have the car when you reject. They may refuse to accept (they will have already refused a refund for you to be at this stage) so you leave the car with them refuse to take re-delivery of the car and you take them to the small claims court
The costs of which are shown here
http://www.hmcourts-service.gov.uk/courtfinder/forms/ex50_e.pdf
How much was the car?

The way they can fight back is to charge you storage fees per day, which if you lose the case you may have to pay..... thinking about this, it might actually be better to reject it whilst it sits on your drive, because if they don't come to collect it atleast they can't charge you storage, on the other hand you could charge them storage.

If you do shy away from a full immediate rejection then consider what Attryde did in Farnworth Finance v Attryde.

HTH

IANAL TINLA

I'd like to see more comments from other contributors on this thread.

*Anna* wrote: »

Actually no the fault was not there at the time I agreed to buy the car and paid my £100 deposit, when I test drove the car and had a look at it before I bought it, the oil level was fine and quite clean because that is one of the checks I carried out, and it drove lovely no lights on dash. The problems started when they 'serviced and changed the cam belt', it certainly did not have an oil leak when I looked over the car and paid my deposit. I paid £1495 for the car in total.

They collected the car last night about 5pm, I am quite happy to keep the car if the repairs are fixed, the only problem being I have no idea if driving the car with low oil it will have damaged it. Would another garage be able to take a look over the car and tell me? or is it just one these time will tell things?

Thanks again for taking the time to advise me I really appreciate it.

It will unfortunately be a "time will tell" matter, unless the engine is dismantled and fully inspected (including the bottom end).

If the oil was just at the bottom of the dipstick, then you should be fine.

It's worth noting that any used car has the possible danger of it previously being run low on oil, as a quick top up very simply/cheaply removes any indication of low oil.

I think it's fair to say that the performance of oils has increased in leaps and bounds over the years, and that is probably why engines are lasting well. Personal choice has always been Castrol, and have been using Magnatec for quite a while, which can sometimes be a blessing when you forget to top up....