Damp proofing - verbal guarantee not being honoured

InsideInsurance

unholyangel wrote: »

I used to think it would be like scotland and from discovery also but then I read a few judgements and apparently, in contracts, there is no knowledge element required. Its when the breach occurs, not when the other party becomes aware of the breach.

And of course, thats ignoring the fact that OP will have a hard enough time proving the contract has been breached. Without a guarantee or proof of guarantee, the OP has no evidence that a breach of contract even occurred.

Well the above is from the existing English act which does state that in cases of fraud, concealment or mistake then there is a delay to when the other party discovers, or reasonably should discover, it.

If it were not the case anyone buying a "gold watch" etc would have to go away and have it tested to ensure it is as described rather than being reliant on the fact that if it subsequently turns out to be gold plate despite the hallmarks they'd still be able to make a claim against the merchant.

It also ties in with the in house solicitors comment that misrepresentation does extend the timeline

unholyangel

InsideInsurance wrote: »

Well the above is from the existing English act which does state that in cases of fraud, concealment or mistake then there is a delay to when the other party discovers, or reasonably should discover, it.

If it were not the case anyone buying a "gold watch" etc would have to go away and have it tested to ensure it is as described rather than being reliant on the fact that if it subsequently turns out to be gold plate despite the hallmarks they'd still be able to make a claim against the merchant.

It also ties in with the in house solicitors comment that misrepresentation does extend the timeline

But even if that is the case, they'd still have to prove there was fraud/concealment - and it will be for OP to prove this, not for the company to disprove it. To play devils advocate, theres also the requirement of reasonable diligence. If (theorising here since OP hasnt been to answer yet) the paperwork makes no mention of a guarantee or perhaps defines a different limitation period/guarantee period then the courts may rule that OP should have been aware of the cause of action either at the time of entering into the contract or shortly thereafter.

And on top of that. we have no idea what the terms of the guarantee are. A guarantee doesnt always offer cover whatever happens, and evidently from what OP has said, there are limitations on this guarantee.

OP at this stage has:
No proof that the guarantee formed part of the contract
No proof that the terms of the guarantee have been breached
No proof that the company acted fraudulently

Snowballs chance in hell is the phrase I believe covers it.

InsideInsurance

unholyangel wrote: »

But even if that is the case, they'd still have to prove there was fraud/concealment - and it will be for OP to prove this, not for the company to disprove it. To play devils advocate, theres also the requirement of reasonable diligence. If (theorising here since OP hasnt been to answer yet) the paperwork makes no mention of a guarantee or perhaps defines a different limitation period/guarantee period then the courts may rule that OP should have been aware of the cause of action either at the time of entering into the contract or shortly thereafter.

And on top of that. we have no idea what the terms of the guarantee are. A guarantee doesnt always offer cover whatever happens, and evidently from what OP has said, there are limitations on this guarantee.

OP at this stage has:
No proof that the guarantee formed part of the contract
No proof that the terms of the guarantee have been breached
No proof that the company acted fraudulently

Snowballs chance in hell is the phrase I believe covers it.

Agree with the prognosis due to lack of evidence.

Just to clarify the clause covers for fraud, concealment or mistake and so it doesnt require malicious intent by the vendor as mistake is also there and could apply if the vendor did state it was included in error or had intended to include it and simply forgot to mark the system to say it was.

Ultimately it would all be for a judge to determine what is reasonable and what on the balance of probability happened. So back to the hypothetical, if the OP had an original advert from the builder saying all work covered by a 30 year no quibbles guarantee then there would be a fairly strong argument that it wasnt unreasonable not to see it on the invoice nor be given terms for it given it stated "all work" and "no quibbles".

unholyangel

InsideInsurance wrote: »

Agree with the prognosis due to lack of evidence.

Just to clarify the clause covers for fraud, concealment or mistake and so it doesnt require malicious intent by the vendor as mistake is also there and could apply if the vendor did state it was included in error or had intended to include it and simply forgot to mark the system to say it was.

Ultimately it would all be for a judge to determine what is reasonable and what on the balance of probability happened. So back to the hypothetical, if the OP had an original advert from the builder saying all work covered by a 30 year no quibbles guarantee then there would be a fairly strong argument that it wasnt unreasonable not to see it on the invoice nor be given terms for it given it stated "all work" and "no quibbles".

I'll admit i'm presuming OP doesn't have original advert etc as they said they had nothing in writing and basically only have their recollection of a conversation that happened roughly 10 years ago,


I suppose if they could show theres a noticeable difference between the price they paid and the price other companies would have charged it would support that they paid more in order to get a 30 year guarantee. But short of that I genuinely can't think of any way they could argue this with no probable evidence to support them.

shaun_from_Africa

As it was a local company, I was wondering if it would be worth posting something on a neighbourhood forum asking if there are any other people who had work carried out by this company around the same time as you did and if so, what they received in the way of paperwork guarantees.
If you are extremely lucky, someone may have a quotation letter giving details such as "all of our work is guaranteed for 30 years"

I realise that even if you were to get this it might not apply to the work that you had carried out, but as the small claims process will generally rely on the balance of probabilities, it certainly wouldn't do any harm.


A message on a few local forums asking for help and explaining the problem that you are having with the company concerned may also prompt them to offer some assistance if they think that they will lose business because of your posts.
If you do this, just make sure that whatever you post is factually correct and doesn't contain anything that could be used to get the posts removed or involve you in a possible libel case.

DandelionPatrol

George_Michael wrote: »

I thought that in England it was 6 years from the date of the contract as this would be when the breach happened (not supplying a guarantee as agreed).
Scotland is different where it's 5 years from the date of discovery of the problem but in the UK I think that the OP is out of time.

Not in this case, OP is alleging that a verbal guarantee was given, so the breach is failure to honour the guarantee, for which the clock starts when the guarantee is not honoured.

If the breach were failure to provide a guarantee in the first place, then OP would be out of time as you say.

Remember that the essence of a guarantee is the assurance it provides rather than the piece of paper. So the lack of the paper gives rise to a problem of substantiating the guarantee with evidence, but does not invalidate the customer's reasonable expectation that the guarantee will be upheld.