We Buy any Car - Changing their mind

Grumpy_chap

I don't think this would be a "specific performance" claim.

I am not an expert but, AIUI, "specific performance" would be if I purchased a product specification XYZ but the actual product received is specification XYY.  The "specific performance" would be for the product to meet specification XYZ, regardless of whether the specification XYY would be entirely fit for purpose.  For example, a building material specified in a design for compressive strength 600 kN/m2 but the construction uses material with strength 400 kN/m2, where either is "fit for purpose", say maximum actual loading 200 kN/m2.  The "specific performance" would be either for the material to be changed to the specification, or financial compensation for the lower specification.

The OP's case seems to be purely an item sold for an agreed price and the purchaser failing to pay.  Seems like a straightforward money claim when boiled down like that.  (I accept this is far more than "simple" for the OP.)

ArbitraryRandom

The advantage I can see for the OP in accepting it back and selling it/claiming for the difference is that it will potentially mean it could be heard in a lower court (as the claim would be for a lower value) - but in this case I wouldn't be surprised with an order for specific performance... in this case specific performance and damages are basically the same remedy (only the amount awarded differs). 

The downside for the OP is the time/bother of having to sell, then valuing the claim made up of several elements (cost of short term tax/insurance/any other associated costs) - currently the claim is quite simple with the amount to be claimed specified in the contract. 

Grumpy_chap said:

I don't think this would be a "specific performance" claim.

I am not an expert but, AIUI, "specific performance" would be if I purchased a product specification XYZ but the actual product received is specification XYY.  The "specific performance" would be for the product to meet specification XYZ, regardless of whether the specification XYY would be entirely fit for purpose.  

'Specific performance' means an order to fulfil the contract as agreed, whatever that contract might be for - so in this case, to pay what is owed for the car - as opposed to orders for damages/ compensatory remedies (to pay the OPs costs for not buying the car) or declaratory remedies (for things like parental access/cease-and-desist cases)

HillStreetBlues

ArbitraryRandom said:

The advantage I can see for the OP in accepting it back and selling it/claiming for the difference is that it will potentially mean it could be heard in a lower court (as the claim would be for a lower value) - but in this case I wouldn't be surprised with an order for specific performance... in this case specific performance and damages are basically the same remedy (only the amount awarded differs). 

WBAC could well turn  their "goodwill" gesture into a F&F to prevent this.

the_lunatic_is_in_my_head

ArbitraryRandom said:

The advantage I can see for the OP in accepting it back and selling it/claiming for the difference is that it will potentially mean it could be heard in a lower court (as the claim would be for a lower value) - but in this case I wouldn't be surprised with an order for specific performance... in this case specific performance and damages are basically the same remedy (only the amount awarded differs). 

The downside for the OP is the time/bother of having to sell, then valuing the claim made up of several elements (cost of short term tax/insurance/any other associated costs) - currently the claim is quite simple with the amount to be claimed specified in the contract. 

Grumpy_chap said:

I don't think this would be a "specific performance" claim.

I am not an expert but, AIUI, "specific performance" would be if I purchased a product specification XYZ but the actual product received is specification XYY.  The "specific performance" would be for the product to meet specification XYZ, regardless of whether the specification XYY would be entirely fit for purpose.  

'Specific performance' means an order to fulfil the contract as agreed, whatever that contract might be for - so in this case, to pay what is owed for the car - as opposed to orders for damages/ compensatory remedies (to pay the OPs costs for not buying the car) or declaratory remedies (for things like parental access/cease-and-desist cases)

I pretty much agree with all of this but how does it fair with regards to mitigating losses, a claim of specific performance is basically a claim for £43k to be paid by WBAC were as damages would possibly only be a few thousand.

I understand the inconvenience OP would suffer in having to sell it again but suffering inconvenience appears to be preferred (to an extent) if it lowers the claim value. 

I know some threads on here suggest people should go to the end of the Earth to save 5pence off their claim but it does seem likely OP would get a good price for the car privately and as a result the £ difference in the two types of claims would be very large. 

ArbitraryRandom

the_lunatic_is_in_my_head said:

ArbitraryRandom said:

The advantage I can see for the OP in accepting it back and selling it/claiming for the difference is that it will potentially mean it could be heard in a lower court (as the claim would be for a lower value) - but in this case I wouldn't be surprised with an order for specific performance... in this case specific performance and damages are basically the same remedy (only the amount awarded differs). 

The downside for the OP is the time/bother of having to sell, then valuing the claim made up of several elements (cost of short term tax/insurance/any other associated costs) - currently the claim is quite simple with the amount to be claimed specified in the contract. 

Grumpy_chap said:

I don't think this would be a "specific performance" claim.

I am not an expert but, AIUI, "specific performance" would be if I purchased a product specification XYZ but the actual product received is specification XYY.  The "specific performance" would be for the product to meet specification XYZ, regardless of whether the specification XYY would be entirely fit for purpose.  

'Specific performance' means an order to fulfil the contract as agreed, whatever that contract might be for - so in this case, to pay what is owed for the car - as opposed to orders for damages/ compensatory remedies (to pay the OPs costs for not buying the car) or declaratory remedies (for things like parental access/cease-and-desist cases)

I pretty much agree with all of this but how does it fair with regards to mitigating losses, a claim of specific performance is basically a claim for £43k to be paid by WBAC were as damages would possibly only be a few thousand.

I understand the inconvenience OP would suffer in having to sell it again but suffering inconvenience appears to be preferred (to an extent) if it lowers the claim value. 

I know some threads on here suggest people should go to the end of the Earth to save 5pence off their claim but it does seem likely OP would get a good price for the car privately and as a result the £ difference in the two types of claims would be very large. 

Don't conflate the size of the claim with losses...

Scenario one: 

WBAC is ordered to pay the OP the full agreed valuation of the car @ c.£43k - WBAC has ownership of the car which they can then sell for £35k, making a loss of c.£8k

Scenario two: 

The OP sells their car for £35k, claims £2k in consequential losses, claims £8k in damages (the difference between the selling price and valuation) - making a total loss for WBAC c.£10k 

Obviously random figures for illustrative purposes only. 


And apparently now I can't spell consequential!

the_lunatic_is_in_my_head

ArbitraryRandom said:

the_lunatic_is_in_my_head said:

ArbitraryRandom said:

The advantage I can see for the OP in accepting it back and selling it/claiming for the difference is that it will potentially mean it could be heard in a lower court (as the claim would be for a lower value) - but in this case I wouldn't be surprised with an order for specific performance... in this case specific performance and damages are basically the same remedy (only the amount awarded differs). 

The downside for the OP is the time/bother of having to sell, then valuing the claim made up of several elements (cost of short term tax/insurance/any other associated costs) - currently the claim is quite simple with the amount to be claimed specified in the contract. 

Grumpy_chap said:

I don't think this would be a "specific performance" claim.

I am not an expert but, AIUI, "specific performance" would be if I purchased a product specification XYZ but the actual product received is specification XYY.  The "specific performance" would be for the product to meet specification XYZ, regardless of whether the specification XYY would be entirely fit for purpose.  

'Specific performance' means an order to fulfil the contract as agreed, whatever that contract might be for - so in this case, to pay what is owed for the car - as opposed to orders for damages/ compensatory remedies (to pay the OPs costs for not buying the car) or declaratory remedies (for things like parental access/cease-and-desist cases)

I pretty much agree with all of this but how does it fair with regards to mitigating losses, a claim of specific performance is basically a claim for £43k to be paid by WBAC were as damages would possibly only be a few thousand.

I understand the inconvenience OP would suffer in having to sell it again but suffering inconvenience appears to be preferred (to an extent) if it lowers the claim value. 

I know some threads on here suggest people should go to the end of the Earth to save 5pence off their claim but it does seem likely OP would get a good price for the car privately and as a result the £ difference in the two types of claims would be very large. 

Scenario one: 

WBAC is ordered to pay the OP the full agreed valuation of the car @ c.£43k - WBAC has ownership of the car which they can then sell for £35k, making a loss of c.£8k

Scenario two: 

The OP sells their car for £35k, claims £2k in consequences losses, claims £8k in damages (the difference between the selling price and valuation) - making a total loss for WBAC c.£10k 

Obviously random figures for illustrative purposes only. 

I was think more of OP sells car and gets £42k privately, they've lost £1k plus the costs of selling again.

If WBAC are offering £33k with the intention of making a profit after overheads, VAT and auction fees I'm pretty confident OP would be getting £40k plus. 

@grumpy_chap might have thoughts on the car's value if OP sold it privately on Auto Trader or what have you. 

ArbitraryRandom

the_lunatic_is_in_my_head said:

ArbitraryRandom said:

the_lunatic_is_in_my_head said:

ArbitraryRandom said:

The advantage I can see for the OP in accepting it back and selling it/claiming for the difference is that it will potentially mean it could be heard in a lower court (as the claim would be for a lower value) - but in this case I wouldn't be surprised with an order for specific performance... in this case specific performance and damages are basically the same remedy (only the amount awarded differs). 

The downside for the OP is the time/bother of having to sell, then valuing the claim made up of several elements (cost of short term tax/insurance/any other associated costs) - currently the claim is quite simple with the amount to be claimed specified in the contract. 

Grumpy_chap said:

I don't think this would be a "specific performance" claim.

I am not an expert but, AIUI, "specific performance" would be if I purchased a product specification XYZ but the actual product received is specification XYY.  The "specific performance" would be for the product to meet specification XYZ, regardless of whether the specification XYY would be entirely fit for purpose.  

'Specific performance' means an order to fulfil the contract as agreed, whatever that contract might be for - so in this case, to pay what is owed for the car - as opposed to orders for damages/ compensatory remedies (to pay the OPs costs for not buying the car) or declaratory remedies (for things like parental access/cease-and-desist cases)

I pretty much agree with all of this but how does it fair with regards to mitigating losses, a claim of specific performance is basically a claim for £43k to be paid by WBAC were as damages would possibly only be a few thousand.

I understand the inconvenience OP would suffer in having to sell it again but suffering inconvenience appears to be preferred (to an extent) if it lowers the claim value. 

I know some threads on here suggest people should go to the end of the Earth to save 5pence off their claim but it does seem likely OP would get a good price for the car privately and as a result the £ difference in the two types of claims would be very large. 

Scenario one: 

WBAC is ordered to pay the OP the full agreed valuation of the car @ c.£43k - WBAC has ownership of the car which they can then sell for £35k, making a loss of c.£8k

Scenario two: 

The OP sells their car for £35k, claims £2k in consequences losses, claims £8k in damages (the difference between the selling price and valuation) - making a total loss for WBAC c.£10k 

Obviously random figures for illustrative purposes only. 

I was think more of OP sells car and gets £42k privately, they've lost £1k plus the costs of selling again.

If WBAC are offering £33k with the intention of making a profit after overheads, VAT and auction fees I'm pretty confident OP would be getting £40k plus. 

@grumpy_chap might have thoughts on the car's value if OP sold it privately on Auto Trader or what have you. 

Okay... 

Scenario one: 

WBAC is ordered to pay the OP the full agreed valuation of the car @ c.£43k - WBAC has ownership of the car which they can then sell for £42k, making a loss of c.£1k 

Scenario two: 

The OP sells their car for £42k, claims £2k in consequential losses, claims £1k in damages (the difference between the selling price and valuation) - making a total loss for WBAC c.£3k 

It's irrelevant to the point the damages needing to be minimised are the difference in value of the car/selling price plus any directly linked costs, not the total value of the claim... 

Plus there's nothing requiring the OP to sell privately - they may have wished to use WBAC for a quick sale in the first place, so would be perfectly justified to sell to carwow or one of the other quick sale companies. They are only required to take 'reasonable' actions to mitigate loss, which may not include spending any significant time getting the 'best possible' price. 

the_lunatic_is_in_my_head

ArbitraryRandom said:

Okay... 

Scenario one: 

WBAC is ordered to pay the OP the full agreed valuation of the car @ c.£43k - WBAC has ownership of the car which they can then sell for £42k, making a loss of c.£1k 

Scenario two: 

The OP sells their car for £42k, claims £2k in consequential losses, claims £1k in damages (the difference between the selling price and valuation) - making a total loss for WBAC c.£3k 

It's irrelevant to the point the damages needing to be minimised are the difference in value of the car/selling price plus any directly linked costs, not the total value of the claim... 

Plus there's nothing requiring the OP to sell privately - they may have wished to use WBAC for a quick sale in the first place, so would be perfectly justified to sell to carwow or one of the other quick sale companies. They are only required to take 'reasonable' actions to mitigate loss, which may not include spending any significant time getting the 'best possible' price. 

Yes but WBAC won't sell it for £43k which was my point here I know that's their problem but between them taking it for £43k and selling it at auction and OP selling it privately the loss to WBAC is going to be less if OP sells it which is why I think they'll do their best to drop the car back in OP's possession. 

Okell

HillStreetBlues said:

the_lunatic_is_in_my_head said:

OP just one thought, if you reluctantly end up with the car back* and plan to sell privately you can buy insurance for short periods, whilst more expensive per day it might be cheaper to buy a 30 day policy than pay cancellation fees on a yearly policy. 

*I don't think it's possible to force WBAC to pay**, as mentioned at the start of the thread you'd most likely be looking at selling again and claiming the short fall, plus any expenses in selling again, as damages. 

**I know courts can award specific performance, I'm not sure under what circumstances but a quick Google suggests when it would award "more complete and perfect justice", as you are looking to sell the car and end up with £43k in your hand awarding money as damages rather than specific performance seems to do the job really.  

Out of interest did you email their complaints team yet? 

Why not, WBAC have bought the car, the debt should be enforced like any other monies owed.

English courts are traditionally very reluctant to order specific performance where payment of damages will adequately compensate the claimant.

Normally in a situation like this the OP would simply sell their car to a third party for less than the price offered by WBAC, and the OP would then sue WBAC for the difference between their offer price and the price paid by the third party.

Or it could be argued here (if the OP wants to keep the car) that the OP's loss is the difference between WBAC's original offer price and their lower revised price.

I think a court is more likely to go down the damages/compensation route rather than specific performance.

[Edit:  TBH, like yourself and others, I'm not sure why WBAC don't just bite the bullet, accept that they've cocked this up, and just go ahead and buy the car.  They could even use it as advertising.  "Look how honest we are, even where we've made a mistake we still pay up..."]

ArbitraryRandom

the_lunatic_is_in_my_head said:

ArbitraryRandom said:

Okay... 

Scenario one: 

WBAC is ordered to pay the OP the full agreed valuation of the car @ c.£43k - WBAC has ownership of the car which they can then sell for £42k, making a loss of c.£1k 

Scenario two: 

The OP sells their car for £42k, claims £2k in consequential losses, claims £1k in damages (the difference between the selling price and valuation) - making a total loss for WBAC c.£3k 

It's irrelevant to the point the damages needing to be minimised are the difference in value of the car/selling price plus any directly linked costs, not the total value of the claim... 

Plus there's nothing requiring the OP to sell privately - they may have wished to use WBAC for a quick sale in the first place, so would be perfectly justified to sell to carwow or one of the other quick sale companies. They are only required to take 'reasonable' actions to mitigate loss, which may not include spending any significant time getting the 'best possible' price. 

Yes but WBAC won't sell it for £43k which was my point here I know that's their problem but between them taking it for £43k and selling it at auction and OP selling it privately the loss to WBAC is going to be less if OP sells it which is why I think they'll do their best to drop the car back in OP's possession. 

WBAC don't only sell at auction (they also sell via local dealerships) but I'm sure they will try and drop it back with the OP (as suggested above, trying to get them to agree to a token compensation as full and final settlement of the issue)... that doesn't mean that's the outcome best for the OP   

For valuation purposes, at the point of the claim being heard, the eventual selling price of the car is entirely speculative, be that what the OP may be able to sell it for privately (and how much effort may be involved securing that price) vs what WBAC may be able to sell it for at auction. 

The worst case scenario (other than losing the case completely) to my mind is that the court either sets a value for the vehicle and orders it returned to the OP to keep or sell as they choose, or orders the OP sell the car within 30 days and WBAC pay the difference in value between that amount and the contract price... (The statement of value in the claim form does not limit the power of the court award a different amount or remedy)