Defendant small claims court

Cooper11294

Hi, 
I'm being taken to small claims court because a vehicle ( I sold privately ) had engine failure around 40 miles from my home address.  My question is, is the claimant covered by the 1979 consumer act or the October 2015? From what I can gather so far is that a claimant wouldn't be covered by either. It had to be as described,  be roadworthy  and I have the right to sell. Any help would be most appreciated,  thanks

Alderbank

Cooper11294 said:

Hi, 
I'm being taken to small claims court because a vehicle ( I sold privately ) had engine failure around 40 miles from my home address.  My question is, is the claimant covered by the 1979 consumer act or the October 2015? From what I can gather so far is that a claimant wouldn't be covered by either. It had to be as described,  be roadworthy  and I have the right to sell. Any help would be most appreciated,  thanks

So, how did you describe it?

TELLIT01

Did you sell any other vehicles at around the same time?  If you can be shown to be selling vehicles on a regular basis, even if not often, the complainant may be able to claim that you are in reality a trader.

Semple

Caveat emptor would usually apply to private sales. As long as you were honest in how you describe it, or any questions that may have been asked.

pinkshoes

Your other post says:

I would really appreciate your help in this matter.
I'm being taken to small claims court for vehicle I sold privately. The engine failed about 40 miles from my home address.  I did at first say I would refund money (both in text and verbal) asked for the vehicle to be recovered to my home address, it was not (they brought it at evening time. Although it was summer and still light.) They were quite vague on who the recovery company were, and did not forward a phone number when asked.  They did say they didn't think it would be back that night,  but most lightly in the morning. Fair enough,  it was around 9/30 pm. I am up early so went to bed. I was up around 4.45am and had a message saying they had been advised to keep the van until they received a full refund! I was not willing to do that, and started to think it may be a scam. I decided to get some advice from consumer help line. They basically told me as long as it was advertised truthfully it was a case of buyer beware.  I rebuilt the engine myself, which I told them when we were inspecting the vehicle.  They asked to take it for test drive, I told them its sorn so can't go far. They took it for test drive and decided to buy. Also, when they were taxing it to take home, I said again, its sorn at the moment,  they said so it's not been driven far ? I said no, it hasn't, nothing was said. What are my chances of winning this? Never will I sell  vehicle privately again! The stress is on  another level! 

What did the advert say???

If you rebuilt the engine yourself and it failed 40 miles later then by the sounds of it you didn't rebuild it properly.

But... you are correct that they should return the car before receiving a refund. 

I would reply to the Small Court Claim stating that you have already offered the buyer a FULL REFUND if they returned the car (give a copy of the text message) but the buyer refused to return the car.

I would then state that you are still happy to refund once the vehicle has been returned. I think you should also perhaps be paying the fee for the 40 mile recovery to your house.

macman

CRA 2015 does not apply to private sales, so the key point here is if you mis-described the condition of the vehicle or not.
If the plaintiff is relying on CRA 2015 then the judge will dismiss the case out of hand unless it can be proven that you were conducting a business sale.

Jenni_D

CRA2015 applies to all sales ... it's just that only certain parts of it apply for private sales. (Goods match the description and the seller has good title to sell, and where vehicles are concerned then the goods must be roadworthy - unless the goods are described as not roadworthy/for spares in which case the seller must ensure that the buyer doesn't try to drive the vehicle away).

Cooper11294

Can anyone tell me what constitute's "roadworthy?" I always thought it was the MOT, but the claimant is saying it wasn't roadworthy because the engine blew?

Manxman_in_exile

Cooper11294 said:

Can anyone tell me what constitute's "roadworthy?" I always thought it was the MOT, but the claimant is saying it wasn't roadworthy because the engine blew?

I think you are being distracted by the wrong question.

The fact your car passed its MOT at 2pm on Tuesday doesn't necessarily mean it would pass an MOT again at 2pm the next day.  An MOT is simply a legal requirement and says something about your car at a single moment in time.  It is no guarantee of roadworthiness at any point after that moment in time.  If you selling a car with an MOT that expires in 11 months, all that that should indicate to any potential buyer is that they won't have to shell out for another MOT for 11 months.  That's all.  The fact it passed an MOT a month ago doesn't mean it is "roadworthy" now.

I think you can look at "roadworthiness" in two different contexts here.  One is that it is a criminal offence to sell an unroadworthy car as defined - I think - here:  Road Traffic Act 1988 (legislation.gov.uk)

But as you don't appear to be getting prosecuted in this instance, what does "roadworthy" mean in the context of civil law?

I'm not sure it means anything other than a convenient shorthhand as to whether the car you sold was of reasonable quality, fit for purpose and as described etc.  I think that so long as you described the car accurately - to the best of your knowledge - and so long as you truthfully answered any questions asked by the purchaser - again to the best of your knowledge - then you probably have little to worry about.  You only really have a problem if you knowingly lied or misled about the car.  I don't see you could predict that the engine would blow - unless you knew there was a leaky gasket or something and lied about it.

NB - have you actually received a court claim or is your purchaser only threatening to sue you?  Obviously if they have actually issued a claim against you then you need to take it seriously and make sure you follow the correct procedures.  You need to acknowledge service of the claim within a certain timescale and you need to file a defence within a certain timescale.  If you don't you can lose by default...

[Edit:  Ah!  I've just realised the OP couldn't be bothered to post the full story here.  I thought something must have gone missing.  Pity...]

born_again

Cooper11294 said:

Can anyone tell me what constitute's "roadworthy?" I always thought it was the MOT, but the claimant is saying it wasn't roadworthy because the engine blew?

construction and use of vehicles regulations

Just because engine blew, does not make it unroadworthy. As it could legally be kept on a road (subject to tax,ins & MOT)

unholyangel

Jenni_D said:

CRA2015 applies to all sales ... it's just that only certain parts of it apply for private sales. (Goods match the description and the seller has good title to sell, and where vehicles are concerned then the goods must be roadworthy - unless the goods are described as not roadworthy/for spares in which case the seller must ensure that the buyer doesn't try to drive the vehicle away).

CRA 2015 only applies in b2c contracts. You're thinking of SOGA 1979 which applies to all contracts.

You're also confused on the roadworthy aspect. There's no contract of sale requirement for the vehicle to be roadworthy (although i'll come back to this). What you're thinking of is the offence that can be committed under the road traffic act by selling (or exposing for sale) an unroadwothy vehicle. In the case of an individual, to avoid the offence you would need to demonstrate you sold the vehicle as an export (so would not be used on uk roads) or that you had a reasonable belief the vehicle wouldn't be used on UK roads (at least until it was made roadworthy). If you were a trader, then you need to establish you took all reasonable steps to make them aware driving the vehicle in it's current condition was unlawful (in addition to export/holding reasonable belief it wouldn't be used on UK roads). 

I'm not sure in OPs case it would be possible to claim such a belief could be reasonable (if the vehicle was unroadworthy). Not unless,  prior to sale, the OP asked them how they were getting it home and they stated they were going to have it carried on a flatbed or booked it in with a local garage. And it was only after sale he found out they were driving it home. 

But, private individuals usually aren't prosecuted for it and, as explained, it only creates a potential criminal offence rather than having any bearing of the contract of sale. However, in aims of completeness,  the RTA covers 2 scenarios for when the offence is committed. The first is where use on the roads would be unlawful owing to the brakes, steering, tyres or the construction/weight/use of the vehicle I think. The second is where the vehicle poses a real danger of injury (ie not through driver error but vehicle malfunction).

A vehicle having no MOT has no bearing on whether it is roadworthy. Although a MOT may help establish that, at least at the time of the MOT, it was roadworthy . 

As far as civil side goes, if purchased from a trader then there's the expectation goods will be of satisfactory quality. But that provision isn't extended to private sales. The engine failing is a matter of satisfactory quality, even if the OP built it themselves (unless they do so on a commercial basis/with any regularity, in which case they may be a trader). I mean the engine worked...it may not have been durable but durable is satisfactory quality, which doesn't apply to private sales.

Assuming title isn't an issue, it all comes down to how the vehicle was described. The engine failure could play a part here though (ie if the advert said professionally built engine or implied the engine runs perfectly and it turns out that isn't the case).