Faulty Scooter - Advice needed!

keefymagic

Okay, before I start, please don't tell me what I SHOULD have done before I bought the scooter - I'm well aware of how silly it was to go in eyes wide shut. What I need is clarification on what I can do now!

Let me explain...I bought a 2nd hand scooter from a dealer in London. As I didn't have the correct licence, I had to wait 2 months before I attempted to ride it (it was delivered to me). When I did try, low and behold, it didn't work. The RAC took it to my local motorbike shop, who, after 3 weeks, have told me that the list of faults is endless, and that quite frankly, I would be better off selling the bike for scrap. Not exactly the "absolute bargain" it said it was on their website! I could have cried! (But I didn't)

I phoned trading standards, who gave me some great advice, and said it was a breach of contract. Even better, thanks to Martin's advice, I bought it on a credit card - section 75 now comes into play (the bike was £700 - Oooommphh, I hear you say).

So, here are my questions.
1) As the repairs are so extensive, am I legally within my rights to ask them to give me a refund straight away, and not give them the chance to repair it?
2) How do I notify a credit card company that I am claiming section 75 against them?
3) Can I MAKE them come and collect the bike?

Any thoughts on the matter would be greatly appreciated. And yes. I've learnt my moneysaving lesson.....

Keef

Bossyboots

Lucky you bought it from a dealer and by card as this gives you far more leverage. Can you say how long ago you bought it as this might be relevant to your first question.

In answer to question 2, ring your card company and ask them. I would expect them to send you a form to complete with all the details.

I doubt you will have to MAKE them come and collect the bike once they realise you are not going to roll over on this one and intend to claim your money back from the credit card company who in turn will no doubt be looking for the bike company to repay them. Perhaps you should ask that question when/if you end up lumbered with it.

Wig

1. Need to know how long you've had the bike, sounds like it's too late, as it has been at least 3 weeks after you got your licence. You could argue that the 2 months to wait for your licence was a reasonable time to wait (as you had no licence), but then you have the time taken to get the RAC out, and the time it took the repairers (3 weeks!!!) to give a report. Then you have on top of that the time taken to think about it, go to trading standards and post on here, all in all I'd say it was waaaaaay too late to reject the bike. And the best course of action is the credit card.

Bernstein v Pamson Motors, where Bernstein tried to reject a new car after 3 weeks and was told by the judge that he could not <<< courtesy of furrypolka
http://forums.moneysavingexpert.com/showpost.html?p=4200447&postcount=8

2. Phone them up, go back to trading standards for help to complete the claim.

3. Dunno, maybe if your claim is successful, you can. Or charge them for cost of disposal (after giving them ample time to collect).

I personally hate it when people don't update what happened in the end, so please don't turn out to be someone who doesn't let us know the final outcome.

keefymagic

Hi guys,

Thanks for the help so far. More info: Bike was bought Sat 18th November. Wig, by saying "the best course of action is the credit card" do you think I should just go straight to them? Or wait to see if they will repair it first maybe...

I've sent a secure email to Egg, should hear from them soon.

The guy in my local motorbike shop, who has assessed the bike, has said that as they delivered it, they are legally obliged to come and collect it.

So, here's what I'm going to do. Write a letter to the Bike shop where I bought it, explaining the problems. (Keep in mind that I haven't even ridden this bike 1mile. NOT 1 MILE!) I will ask them to arrange collection within a week, and then to collect the following week. I will then give them 2 weeks to repair it, and send it back to me. If they refuse to do any of that, then I will demand my money back from Egg. What do you think? Solid strategy?

gyzmo

The fcat that you have had the bike for a few weeks does not necessarily mean you cant get your money back. You are entitled to have a reasonable time to examine the goods (and the courts are rather inconsistent as to what is reasonable). There is certainly a breach of condition, and so you will be entitled to rescing the contract. Repair woulod be unreasonable and replacement impractical. get your money back, and dont take the "deduction for fair usage" line - there wasn't any fair usage.

furrypolka

gyzmo wrote:

The fcat that you have had the bike for a few weeks does not necessarily mean you cant get your money back. You are entitled to have a reasonable time to examine the goods (and the courts are rather inconsistent as to what is reasonable). There is certainly a breach of condition, and so you will be entitled to rescing the contract. Repair woulod be unreasonable and replacement impractical. get your money back, and dont take the "deduction for fair usage" line - there wasn't any fair usage.

As stated above, though, as you have had it for this length of time it is unlikely that the courts will allow you to simply reject and claim a full refund outright, as they would tend to use the precedent set in Bernstein v Pamson Motors quoted above.

However... the trader is entitled to offer a repair or replacement in the first instance, but is that really possible here? The repairs will almost certainly be disproportionate to the value of the bike, i.e. not worth it! A like-for-like replacement is probably unlikely, as second hand vehicles are all very individual.

Therefore if neither repair nor replacement are possible/economical you'd be looking at rescission of the contract, which basically means a partial refund (refund less any amount for wear and tear). You can argue that as you have not ridden the bike at all despite having had it for a few months, you have had no benefit from it and therefore should be entitled to rescind for a full refund.

It's not quite the same as rejecting, but it could have the same outcome!

Quoting from relevant parts of SoGA Part 5a legislation:

Repair or replacement of the goods

48B.

(1) If section 48A above applies, the buyer may require the seller—
(a) to repair the goods, or
(b) to replace the goods.

(2) If the buyer requires the seller to repair or replace the goods, the seller must—
(a) repair or, as the case may be, replace the goods within a reasonable time but without causing significant inconvenience to the buyer;
(b) bear any necessary costs incurred in doing so (including in particular the cost of any labour, materials or postage).

(3) The buyer must not require the seller to repair or, as the case may be, replace the goods if that remedy is—
(a) impossible, or
(b) disproportionate in comparison to the other of those remedies, or
(c) disproportionate in comparison to an appropriate reduction in the purchase price under paragraph (a), or rescission under paragraph (b), of section 48C(1) below.

Reduction of purchase price or rescission of contract

48C

(1) If section 48A above applies, the buyer may—

(a) require the seller to reduce the purchase price of the goods in question to the buyer by an appropriate amount, or

(b) rescind the contract with regard to those goods,

if the condition in subsection (2) below is satisfied.

(2) The condition is that—

(a) by virtue of section 48B(3) above the buyer may require neither repair nor replacement of the goods; or

(b) the buyer has required the seller to repair or replace the goods, but the seller is in breach of the requirement of section 48B(2)(a) above to do so within a reasonable time and without significant inconvenience to the buyer.

(3) For the purposes of this Part, if the buyer rescinds the contract, any reimbursement to the buyer may be reduced to take account of the use he has had of the goods since they were delivered to him.

gyzmo

That depends on whether it is a warreanty or condition. It will also depend on whether you choose to go down the SoGA route or the Regulations. The courts are inconsistent - whether it is reasonable will depend on the facts of the case.

furrypolka

gyzmo wrote:

That depends on whether it is a warreanty or condition. It will also depend on whether you choose to go down the SoGA route or the Regulations. The courts are inconsistent - whether it is reasonable will depend on the facts of the case.

I don't understand what you mean about whether it's a warranty or a condition?

Satisfactory quality is always a condition. "Reasonable time" is not defined in the law (and would be neither a warranty or a condition).

The consumer has a reasonable time in which to reject the goods for a full refund. This is the same whether you use the original Sale of Goods Act or the amended Act once the Sale and Supply Of Goods To Consumers Regulations amended them in 2003, giving the additional options of repair or replacement. Case law suggests that the time for rejection is usually about 2-3 weeks in most cases.

The SoGA route against the trader would be the same as the Regs (provided you are referring to the same ones I mentioned) as it's basically incorporated legislation.

Agreed, a reasonable time would depend on the facts of the case but previous cases would strongly suggest a matter of weeks.

gyzmo

The Act and the Regulations have different interpretations in the wording. furthermore, the remedies under each one differ. Whether one chooses to opt for the Regulations or teh Act will affect the rights that they have.
What I was saying about whether warranties ro conditions have been breached will also affect any remedies. If any warranties have been given and these are breached, then damages can be sought also. This may make up, for example, if a partial refund is given.

furrypolka

Trying to clarify, a warranty is a part of the contract which is not integral to the contract and a breach of warranty is not as serious as a breach of condition. For example, delivery time is not a condition of the contract but a warranty.

However, the issue here is that the motorcycle is not of satisfactory quality, the OP hasn't mentioned anything which might be considered a breach of warranty. "Satisfactory quality" is a condition of the contract, therefore the issues he mentions are a breach of condition.

If he pursues it under the Act he can reject the item within a reasonable time (case law states this is unlikely) or claim damages (compensation). Those are the two remedies under the old Act before the Regs amended it.

The Regulations bring in the additional remedies of repair or replacement in the first instance, followed by rescission of contract if it cannot be repaired or replaced (quite likely in this case).

I feel the OP would be looking at rescission of the contract, which is basically a refund less an amount for any wear and tear he has had from the goods. See my quote above which is Part 5a of the Sale and Supply of Goods to Consumers Regulations which amended the Sale of Goods Act from 31/3/03.

You would tend to sue under the SoGA as the Regs are now incorporated into this Act, hence the words (as amended) after the legislation.

Wig

Surely if he wants to recind the contract he has to allow a repair to be accepted or denied by the retailer, 48B3 says the buyer should not require a repair if....blah blah blah. What it does not say is whether it is the buyers right to decide (for the retailer) whether a repair is to be offered or not. If the retailer says "repair is out of the question", then recission is the next step surely?

Again it goes on to say
"(a) by virtue of section 48B(3) above the buyer may require neither repair nor replacement of the goods; or "

The word "require" implies to the layman that it is the buyers decision, but I would imagine it is just legal jargon meaning that once repair or replacement have been ruled out (by the retailer) as acceptable, then the buyer may not require repair or replacement. IYSWIM


To Keefymagic,
I am no expert, but yes I would request that they repair the bike to be satisfactory in the first instance. Then do what has been discussed above.