Item not as described - collected

rob4001

Hi,

I recently bought 2 animals off somebody based on a classified advert from an online forum (not Ebay!!!) which specified the weight of the animal (important for breeding purposes) - i still have this advert.

When i got home i realised the animals were 33% lighter than specified.

Does the fact that i saw the animal during the pick up render my purchase not a "Sale by Description".

As per...

2. S.13 sale by description

s.13(1) provides that where there is a contract for the sale of goods by description, there is an implied term that the goods will correspond with the description.

It is important to note that this section only applies where the sale is solely by description. If the buyer sees the actual goods before the sale then s.13 can not be relied upon. This position was clearly stated in Harlington & Leinster Enterprises v Christopher Hull Fine Art [1991]

consumeractiongroup.co.uk/forum/showthread.php?117106-Sale-of-Goods-basic-guide-to-rights-and-obligations

I questioned the weight at the time as they looked a bit light but the seller verbally reiterated the (false) weight. (can't prove) I asked to weigh them at the house but the seller claimed he had no scales. Yes i know i should have gone with my instincts here and insisted.

Obviously the seller is refusing a refund.

I am wondering if i can still claim misdescription?

Thanks

pulliptears

No idea how it works with animals, but if you bought say a car and the ad said 'this is a red car' and you then found the car was blue then yes, you can certainly go for the seller under the misdescription act 1967.

People will undoubtedly say to you 'sold as seen'. Its a pretty useless phrase really and doesn't affect your statutory rights. If seller has described one thing and sold you something else, he is a bit naughty.

I guess the first thing you'd have to do is reject the goods, send a recorded letter of rejection explaining why you are rejecting.

As I say though, as this is an animal it may be completely different. Can you not fatten the animal up?

rob4001

Hi there,

I'm sending a formal letter recorded delivery tomorrow - which he will inevitably ignore.

I don't think it makes a difference it being an animal. The weight difference is well outside of possible fluctuations.

It's really whether i have eliminated my "sold as described" status by collecting it vs having it delivered.

According to that example in the quote i presented, it feels as if i would have done.

Rob

RainbowDrops

Was there no oppertunity to weigh the animals on collection?

rob4001

I often bring scales but mine were broken.

I asked if i could use his and he said he didn't have any - he probably did and this should really have been an alarm bell to me.

So, not at the time, no.

pulliptears

rob4001 wrote: »

Hi there,

I'm sending a formal letter recorded delivery tomorrow - which he will inevitably ignore.

I don't think it makes a difference it being an animal. The weight difference is well outside of possible fluctuations.

It's really whether i have eliminated my "sold as described" status by collecting it vs having it delivered.

According to that example in the quote i presented, it feels as if i would have done.

Rob

Even if you inspected it, it should still be 'as described' so no, you certainly haven't eliminated it.

I guess what you need to do now is follow the process, send the letter rejecting and giving 14 days to refund. When that ends send the next letter stating 14 days or we are going to court. If that fails then file a small claim.

My only concern would be how you can prove the weight of the animal. Is there some type of club who could independently cerify the animal? Or a veterinary report?(It would be helpful to know what the animal is really) Either way you are going to need some independent proof that the animal is as you say.

Next thing to consider is costs, you have court fee's, hearing fees plus whatever it costs to have a report on the animal. Is the cost of that more than the cost of the animal etc?

Lots to think about really and sometimes the 'he's conned me!' emotion can take a while to give way to rational thought.

rob4001

The animal is a Royal Python

Ok, i may ring CAB and ask how i can verify the weight as it is now. As obviously that will change over a month or so depending on how well they eat.

What do you reckon the ball-park is on costs?

I am probably about £150 out of pocket here. I'm not too fussed about breaking even etc though, i earn quite a lot of money and i like to see justice served. Also i'll need to get rid of them which is more hassle. Though i take your point out re emotion.

Okydoky25

rob4001 wrote: »

I often bring scales but mine were broken.

I asked if i could use his and he said he didn't have any - he probably did and this should really have been an alarm bell to me.

So, not at the time, no.

If he didn't own scales how did he explain how he knew it's weight?

rob4001

Okydoky25 wrote: »

If he didn't own scales how did he explain how he knew it's weight?

Claimed they were probed (sexed) and weighed at the local reptile shop.

pulliptears

rob4001 wrote: »

The animal is a Royal Python

Ok, i may ring CAB and ask how i can verify the weight as it is now. As obviously that will change over a month or so depending on how well they eat.

What do you reckon the ball-park is on costs?

I am probably about £150 out of pocket here. I'm not too fussed about breaking even etc though, i earn quite a lot of money and i like to see justice served. Also i'll need to get rid of them which is more hassle. Though i take your point out re emotion.

Ok, I'm guessing then you are going to need a reptile specialist to examine the snake and provide a report. I have no idea how much this costs to be honest, a vet who specialises in reptiles could help maybe? You are going to need to move quite quickly on that one though I should think, my friend has a few Pythons and I've seen how much they eat

You do tend to get emotional, been there and worn the hat, its natural to feel annoyed. To file a claim and your hearing fee will probably see you another £150 down, then you have the report to obtain. Obviously if you go to court and win you will get your costs back, but that brings up the old adage 'you can't get blood out of a stone'. You can't guarantee that winning will get your cash back, so realistically you could end up £150 down on top of what you have paid for the snake.

If you are stubborn enough and can afford to do it, and realise that you could still end up with nothing then yes I agree, in principal I'd go for it as well because I hate liars.

rob4001

Ok buddy,

Thanks for the advice.