Misleading car advert

Gsal

I purchased a car in Dec 2014 from a trader. the car was advertised with features such as parking assist and start/stop technology, but these features were not there. I found this after 2 weeks of purchasing the car when i tried to use them. I then raised a Sec 75 claim with my credit card company but this was rejected on the grounds that I inspected the vehicle and test drove it prior to purchase. Similar response has been given by the trader. They also referred to the please note section on traders website stating ” The information displayed describes the typical specification of the most recent model of this vehicle. It is not the exact specification for the actual vehicle being offered for sale which may vary. Specifications for older models may also vary. Please contact us prior to purchase to confirm the exact specification of this vehicle.”
When I went to view the car my focus was to ensure car was well maintained and there were no scratches etc. there was no mention of there terms and condition at the time of purchase and no efforts was made by the trader to make me aware of please note section.
Please advise – do I have valid claim? if yes, how do i proceed? can I make a complaint to Ombusmand re Sec75 claim

cono1717

Sadly you seem to have answered your own question in your post

Specifications for older models may also vary. Please contact us prior to purchase to confirm the exact specification of this vehicle.

Did you do this? You say you went there and tested the car but that also adds another nail in the coffin. You, presumably, didn't ask if the car you were buying (with reg AB01 CDE) had this exact specification and then got in the car (with the reg AB01 CDE) and didn't test for those things that you thought it had.

On the otherhand if the dealership said, yes this exact car has these features and it doesn't then you have a claim, however I don't think they did, they described the specification of the highest model and stated that others vary and to even ask them and you chose not to do that.

Hintza

If you had bought it from a distance you might had a chance.

As you have been told you had a chance to inspect the vehicle and ask necessary questions. If these things were important then they would be the first thing you would ask. They obviously weren't that important to you as you neither asked for a demonstration nor tried to use the features within the first two weeks.

Gsal

I totally understand what your are saying. I should have checked if these features were there before purchase. If I would have known about please note section, my approach might have been totally different.

There is a 'please note' section at the bottom of the advert (which I genuinely missed), but there is no mention of this 'note' on their terms and condition section on the paperwork i signed while purchasing. The dealer also did not bring this to my attention during the purchase. I came to know of this when I called to inform of the missing specs.

cono1717

Their T&C's wont say "this car may not be the one we said it would be" that would be why it was on the advert.

Unfortunately you had the chance to inspect it but didn't (irrespective of the reason) so there's not a lot to stand on I'm afraid.

bris

Try the ombudsman, but I think it would have failed at the time. They will also want to know why you have left it for so long to appeal, this would look like acceptance to them, making it even harder.


Cars depreciate rapidly, especially ones bough at retail prices from dealers, this could look like an attempt to cut your losses.

unholyangel

cono1717 wrote: »

Their T&C's wont say "this car may not be the one we said it would be" that would be why it was on the advert.

Unfortunately you had the chance to inspect it but didn't (irrespective of the reason) so there's not a lot to stand on I'm afraid.

Caveat emptor does not apply in b2c contracts. There is a requirement that goods match their description and are of satisfactory quality - taking into account all relevant circumstances including any public statements made about the goods.

(2D)If the buyer deals as consumer or, in Scotland, if a contract of sale is a consumer contract, the relevant circumstances mentioned in subsection (2A) above include any public statements on the specific characteristics of the goods made about them by the seller, the producer or his representative, particularly in advertising or on labelling.

(1)Where there is a contract for the sale of goods by description, there is an implied [F1term] that the goods will correspond with the description.

I'm not entirely sure "this description may not correspond to what we're actually selling" is an effective legal get out given the above - that goods must conform to their description/any public statement made about them.

It may also breach the Trade Descriptions Act (a lot of it was repealed with the introduction of CPRs etc so I'm not sure how much of it is still in force). Where exactly was the disclaimer in relation to the false information?

OP, you may be able to rely on some of the above to give you a strong case against them, but its all dependant on the above applying - so personally I wouldn't proceed with this unless I had professional advice on the matter.

Of course the ombudsman wouldnt cost money - but it would increase your chances of success if you can accurately demonstrate that there has been a breach of contract/statute. So get the advice first, then refer it to the ombudsman.

unholyangel

It may also breach unfair terms in consumer contract regulations. From unfair terms guidance:

Group 2(a): Exclusion of liability for faulty or misdescribed goods
2.1.1 Any business selling goods to consumers is legally bound to accept certain
implied obligations, whatever the contract says. These are the consumer's
'statutory rights'. Goods must match the description given to them, and be
of satisfactory quality and fit for their purposes. Contract terms which
deny consumers the right to full compensation where goods are
misdescribed or defective are liable to be considered unfair under the
Regulations, and are void and unenforceable under other legislation.

2.1.2 As well as potentially being unfair under the Regulations, the use of such
disclaimers is liable to mislead consumers about their statutory rights. As
such, it can give rise to enforcement action as an unfair commercial
practice (see above, page 11).

2.1.3 See Group 1 for the OFT's objections to disclaimers generally. Note that
these apply to any term, whatever the form of words used, or the legal
mechanism involved, which has the object or effect of protecting the
supplier from claims for redress for defective or misdescribed goods. It is
also important to note that a statement that statutory rights are not
affected, without explanation, cannot make such a term acceptable to the
OFT.

2.1.4 A variety of different types of wording can have the effect of excluding
liability for unsatisfactory goods. For example,
• Terms saying that the goods must be (or that they have been)
examined by the consumer, or by someone on his behalf.

Consumers cannot be legally deprived of redress for faults in goods
(except obvious faults) other than by having the faults specifically
drawn to their attention before purchase.

• Terms saying that goods only have the description and/or purpose
stated on the invoice.

Consumers cannot legally be deprived of redress where goods do not meet the description under which they were actually sold, nor if they
are not reasonably fit for all the purposes for which goods of the kind
are commonly supplied.

stevemLS

(1)Where there is a contract for the sale of goods by description, there is an implied [F1term] that the goods will correspond with the description.

This is not a contract for sale by description.

There was an advert, which specified that the spec may differ.

Had the contract been entered into purely in consequence of the advert, then it would have been a contract for sale by description.

That particular avenue was closed by the inspection (and the lengthy delay in taking the matter up).

unholyangel

stevemLS wrote: »

(1)Where there is a contract for the sale of goods by description, there is an implied [F1term] that the goods will correspond with the description.

This is not a contract for sale by description.

There was an advert, which specified that the spec may differ.

Had the contract been entered into purely in consequence of the advert, then it would have been a contract for sale by description.

That particular avenue was closed by the inspection (and the lengthy delay in taking the matter up).

Even if that is the case though (it was the wrong part quoted by me, i meant to quote 2A of section 14), there is still the fact that goods need to correspond to their description - including any public statements made about them in advertising.

Theres also Norman v Bennett in which, Widgery LCJ said:

To be effective any such disclaimer must be as bold, precise and compelling as the trade description itself and must be as effectively brought to the notice of any person to whom the goods may be supplied. In other words, the disclaimer must equal the trade description in the extent to which it is likely to get home to anyone interested in receiving the goods.

And also this from unfair terms guidance:

11.8 The OFT's objections do not apply to terms saying that suppliers can vary
the specification of products featured in their brochures or other
advertising, provided customers are told at the point of purchase how what
they are buying differs from what was advertised.

As for the advert, if it specifically mentioned a (for example) 2012 bmw 3 series, blue and a few other details specific to that car - then to me, that advert would be misleading unless the disclaimer was right next to the description and the trader had more than one of these available. If it was just a general "bmw 3 series starting from £xxxxxx) and the trader does have more than one in stock then nothing misleading about that - as OP would have had the option to get the car with all the extras that were advertised.

Of course, the uncertainty of it is exactly why I recommended OP seek professional advice before taking anything any further.

stevemLS

Thanks unholy - I guess we need to see the advert and the website - or at least the website so we can see generically how the trader advertises.