S75-Evidence of misrepresentation

Pinksugar

Hi everyone,

I did a section 75 claim on my timeshare purchase. They verbally made many misrepresentations that were clearly lies.

The credit company have come back saying that we haven't provided sufficient evidence to prove my allegations.

How on earth am I supposed to prove all of the verbal misselling?

It is a US resort, otherwise I would highlight that they have breached a few items of the 2010 EU timeshare law.

I think it's ridiculous that they can be allowed to lie to consumers, not allow them time to properly read through the contract and then get away with it!

Any ideas?

eskbanker

It's not a case of what they are allowed to do but if you put yourself in the shoes of the credit card company, you'd never pay out on the basis of verbal statements that didn't reflect what was written into the actual contract. They don't have the time or inclination to act as judge and jury or embark on lengthy investigations and have to have everything spelt out in clear written terms.

You might have a chance if you took the seller to court but doing so across the Atlantic is likely to be something of a challenge to say the least.

So, chances are it'll be a case of 'caveat emptor' - put up with what you've bought if you can, or cut your losses if resales are possible, or otherwise just write it down to experience and never fall for high-pressure sales again....

meer53

If you can't provide evidence of misrepresentation or breach of contract any claim under Section 75 is going to fail. Why didn't you take the time to read the contract ?

chattychappy

A number of issues here.

1) If you sign a contract, you are deemed to have agreed to its terms. If you didn't read it, then it's your risk. If you didn't have time to read it and didn't want to take the risk, then a judge would say you shouldn't have signed it.

2) You have to distinguish between "advertising puff" and representations. Something like "the greatest burger ever" could never result in a misrep claim, even if you could somehow show that better burgers are around.

3) For a representation to be capable of misrep, it must induce the contract and be untrue. You have to prove this. This may seem obvious, but there can be some problems - eg if you knew that something wasn't true or if you would have gone ahead with the transaction regardless.

4) Look for "whole/entire agreement" type clauses. There may be something in the contract where you agree that you are NOT relying on any prior representations - ie everything that is promised is in the written agreement and nothing promised outside the written agreement counts. There are limits to the effect of these clauses but courts tend to like them because make things more certain.

So if you get past these hurdles, you have to consider proof. No CC will pay out based on what you say. They will want proof to their satisfaction. If you sue them, then you will have to prove the issue to the court's satisfaction. The test is balance of probabilities - ie "more likely than not". Very difficult if you don't have evidence of what was said. Easier if any of it was witnessed by others, reproduced in emails or advertising.

Then there is the matter of US law. The CCA1974 never envisaged the widespread use of CCs overseas. It is written in terms of "breach of contract" and "misrepresentation" with UK law in mind. The matter was tested a few years ago and the court ruled that S75 does apply to transactions overseas. However it is a grey area as to how to interpret "breach" or "misrepresentation" when dealing with foreign jurisdictions. Even if the terms have equivalents, the remedies can be different. Again another grey area - if you establish misrep/breach according to local law (thus engaging S75), is it local remedies or UK remedies that can be had from the CC? Fortunately I believe US law is not so different from ours.

Pinksugar wrote: »

I think it's ridiculous that they can be allowed to lie to consumers, not allow them time to properly read through the contract and then get away with it!

Sorry to sound harsh, but I think it ridiculous that you expect a UK CC to dig you out of this when you willingly signed something you hadn't read, relied on undocumented promises from sales people and, apparently, did all this on foreign soil.