Right to Consequential Loss payment?

ThunderGav

I never expressly stated I was happy to recieve it as a full and final settlement. I took the money simply to make sure I got my money and then left.

ThunderGav

In fact I have voice recordings of a phone call between myself and a guy called Mike at the AA. The dealer was an approved AA dealer so they were used as a mediator when he reneged on his goodwill gesture, which had been promised through the AA. They advised me to take the money and then claim afterwards, just to make sure I actually received the money without having to go to court.

DCFC79

I don't understand why people buy cars that are 97+ miles away from home, its not something Id consider when buying a car if there's any issues.

ThunderGav

Best one within our budget, and driving doesn't bother me. Will consider this a lesson for next time though.

steampowered

Write to the law firm asking them to confirm whether they are authorised to accept service of legal proceedings on behalf of the car trader.

A nice little way of finding out what the situation really is.

unholyangel

You say you didn't expressly agree it was in full and final settlement. But did they make the offer of a refund in full & final settlement and did you accept that refund?

If (for example) the trader sent you a cheque with a letter stating it was in full & final settlement and should be returned if you do not accept it, then by cashing the cheque you would have accepted it.

I'd respond back to them making a few points:
1) there was no obligation on you to return rejected goods unless you had previously agreed you would return rejected goods (ETA: in line with 20 (7) of the CRA)
2) The right to deduct monies does not apply to the short term right to reject, it only applies to the final right to reject
3) In response to their comments on 20 (9), (10) & (19) - point them to 19 (9), (10) & (11) which state:

(9)This Chapter does not prevent the consumer seeking other remedies!!!8212;
(a)for a breach of a term that this Chapter requires to be treated as included in the contract,
(b)on the grounds that, under section 15 or 16, goods do not conform to the contract, or
(c)for a breach of a requirement stated in the contract.

(10)Those other remedies may be ones!!!8212;
(a)in addition to a remedy referred to in subsections (3) to (6) (but not so as to recover twice for the same loss), or
(b)instead of such a remedy, or
(c)where no such remedy is provided for.

(11)Those other remedies include any of the following that is open to the consumer in the circumstances!!!8212;
(a)claiming damages;
(b)seeking specific performance;
(c)seeking an order for specific implement;
(d)relying on the breach against a claim by the trader for the price;
(e)for breach of an express term, exercising a right to treat the contract as at an end.

ETA: Forgot to include this bit. If they made the offer of a full refund + £100 in full and final settlement, then they needed to have paid the £100.

JJ_Egan

Send the cheque back straight away .

bris

You can still cash a cheque and refuse to agree to the full and final settlement clause that comes with it, there is case law on this.


I found this which pretty much sums it up.
https://www.brethertons.co.uk/site/blog/brethertons-latest-news/cheques-received-in-full-and-final-settlement

unholyangel

bris wrote: »

You can still cash a cheque and refuse to agree to the full and final settlement clause that comes with it, there is case law on this.


I found this which pretty much sums it up.
https://www.brethertons.co.uk/site/blog/brethertons-latest-news/cheques-received-in-full-and-final-settlement

You can inform the sender that you do not accept it in full & final settlement and that you intend to cash it in x days time as part settlement - which then allows the sender to cancel the cheque if they do not agree.

Courts have held that cashing a cheque without communicating rejection immediately (or within a very short time) is strong evidence that it was accepted (albeit not conclusive).

Also, its particularly different when the sender of the cheque states (as my example detailed) that if its not accepted in F&F settlement, the cheque should be returned. In those instances if you cash the cheque then it will be seen as acceptance (as in bracken v billinghurst)