Used Car Sale - Terms & Conditions

clarkey3262

Equaliser123 wrote: »

I rather prefer law.

If the deposit was not a genuine pre-estimate of the loss likely to be suffered by the retailer in the event of the customer not keeping to the contract, then it must be repaid as penalties cannot be lawful under English law.

If it was a genuine pre-estimate, then it can be retained.

Realistically, the dealer has not really lost anything - the car still exists and can be sold to a third party.

Which law is this you refer to?

bingo_bango

If the money paid up front is a deposit (expressly designated in the contractual dealings as a deposit or subject to total forfeiture) then current case law (Howe v. Smith 1884) declares it to be non recoverable even if no loss is suffered by the non breaching trader. The penalty rule does not currently apply to deposits (but the Law Commission has recommended that it should do in a working paper).

If the money paid in advance is NOT expressly designated as a deposit or subject to express forfeiture, then it is simply part payment. This is recoverable on termination of the contract (Dies v. British & International Mining & Finance Corporation Ltd 1939) subject to any set-off for performance prior to termination of the contract.

If there is any doubt as to whether a payment is a deposit or prepayment, then the Dies case also gives us the answer to that, because it tells us that the monies paid in advance are then to be treated as a prepayment.

So if OP was told that it was a deposit or subject to forfeiture he isn't entitled to it back.

If he wasn't told this, he can claim it back. The trader could claim some of it for costs incurred, but they would have to prove those costs and could not claim anything over that figure.

s_b

clarkey3262 wrote: »

Which law is this you refer to?

if you do a google of the words because poster was too lazy to make his own you will find he plagarised a pdf full of bad spulling:)

they aint a clue some on here,thankfully they obviously dont run businesses because frankly i wouldnt give them 6 months in the real world

Equaliser123

s_b wrote: »

if you do a google of the words because poster was too lazy to make his own you will find he plagarised a pdf full of bad spulling:)

they aint a clue some on here,thankfully they obviously dont run businesses because frankly i wouldnt give them 6 months in the real world

If you are referring to me, then no, I don't google such things. Just my experience of 15 years as a contracts solicitor.

Leading case is Pye -v- British Automobile Commercial Syndicate Ltd [1906] 1 KB 425.

I am not in my usual office today so only have Trietel's "The Law of Contract" with me. My trusty Chitty on Contract is elsewhre.

And yes, I do run a business.

clarkey3262

bingo_bango wrote: »

If the money paid up front is a deposit (expressly designated in the contractual dealings as a deposit or subject to total forfeiture) then current case law (Howe v. Smith 1884) declares it to be non recoverable even if no loss is suffered by the non breaching trader. The penalty rule does not currently apply to deposits (but the Law Commission has recommended that it should do in a working paper).

If the money paid in advance is NOT expressly designated as a deposit or subject to express forfeiture, then it is simply part payment. This is recoverable on termination of the contract (Dies v. British & International Mining & Finance Corporation Ltd 1939) subject to any set-off for performance prior to termination of the contract.

If there is any doubt as to whether a payment is a deposit or prepayment, then the Dies case also gives us the answer to that, because it tells us that the monies paid in advance are then to be treated as a prepayment.

So if OP was told that it was a deposit or subject to forfeiture he isn't entitled to it back.

If he wasn't told this, he can claim it back. The trader could claim some of it for costs incurred, but they would have to prove those costs and could not claim anything over that figure.

As the OP signed the recipt saying it wa a deposit, we can assume it was and therefore the OP has no right to it back, thank you

ManuelT

It was a deposit pure and simple. The OP know's it and the Garage knows it.

For those who's saying that the garage has lost nothing, How do you know? For a start if they banked the deposit they will probably have lost some of it,Banking for business normally costs money. If they had a phone call enquiring about the car in the time the car was "sold" they have lost other potential sales. It may now sit there another week or two using up space they could have had on other cars and part of their insurance and all the other costs that go along with being a garage.

A word of warning for those suggesting chargebacks, if this happened to me i'd start proceding to recover the cash against the OP straight away.

What I really don't understand is that the Garage said they will still take the car as PX (probably because the profit from the sale is still there even with the PX price taken in to account) and yet the OP is trying so hard to get out of the deal. Just take the car there if you don't I can't see any argument in having your money back.

If they try to change the deal when they see the car then you might have an argument but to me it just seems like the OP is just trying to change his mind and excatly what a deposit is designed to protect against.

s_b

Equaliser123 wrote: »

If you are referring to me, then no, I don't google such things. Just my experience of 15 years as a contracts solicitor.

Leading case is Pye -v- British Automobile Commercial Syndicate Ltd [1906] 1 KB 425.

I am not in my usual office today so only have Trietel's "The Law of Contract" with me. My trusty Chitty on Contract is elsewhre.

And yes, I do run a business.

no not to you that was the point
you quoted perfectly in my opinion:)

Equaliser123

clarkey3262 wrote: »

As the OP signed the recipt saying it wa a deposit, we can assume it was and therefore the OP has no right to it back, thank you

Again, not what the law says.

clarkey3262

Says what, it was not a deposit? Or a legally binding contract? Because the recipt (as per the OP saying) says it was a deposit. As for it not being legally binding, remember a verbal contract is just as good, but it is in writing therefore backing up the fact it is a deposit

ManuelT

Equaliser123 wrote: »

Again, not what the law says.

If your trying to say that any judge in his or her right mind could find for the OP, then the law is an !!!!

It's clear what the intend is here from both parties which if the value is under £5000 is the the important thing.