Section75

roofy_2

You therefore need to make sure you object to any attempt to wind up the company until you have a judgement against them.
How?, he turns out to be a one man band, I have been miss led all the way, when I arrived at the garage I assumed he was part of it, turns out he just rented one room and all the cars for sale on the yard were not his.  At the time I was not aware that this sort to of thing, and that I needed to clarify the extend of the business. He sold me a warranty but that didn't appear, and now he says he is closing on the 12th.  After the 12th July I will not be able to contact by phone by email or the premises.  So how can I take his to the small claims court?

retiredbanker1

Face it you have been done up like a kipper - you have no chance (IMO) of getting any money back.

Either sell the car for what you can get for it (or your daughter) or pay to fix it.

Unfair yes but legally you are unlikely to get far without paying out more cash and even then he could declare himself bankrupt and your cash is down the swanee.

DullGreyGuy

roofy_2 said:

You therefore need to make sure you object to any attempt to wind up the company until you have a judgement against them.
How?, he turns out to be a one man band, I have been miss led all the way, when I arrived at the garage I assumed he was part of it, turns out he just rented one room and all the cars for sale on the yard were not his.  At the time I was not aware that this sort to of thing, and that I needed to clarify the extend of the business. He sold me a warranty but that didn't appear, and now he says he is closing on the 12th.  After the 12th July I will not be able to contact by phone by email or the premises.  So how can I take his to the small claims court?

A one man band as in a sole trader or a limited company with a sole director?

If he's a sole trader then he cannot escape liabilities simply by ceasing trading. If he is operating as a limited company then the request to wind up has to be published and you can object to it

Nasqueron

eddddy said:

Nasqueron said:

eddddy said:

Nasqueron said:

The reason is that the S75 rules only cover direct links (purchaser/seller via the bank) and exclude gifts etc. 

Can you provide a link to an authoritative website that says s75 does not apply to to things which are purchased to be gifts?

Or point to the clause in the Consumer Credit Act that says it doesn't apply to things which are purchased to be gifts?
https://www.legislation.gov.uk/ukpga/1974/39/section/75

Line 1

If the debtor under a debtor-creditor-supplier agreement falling within section 12(b) or (c) has, in relation to a transaction financed by the agreement, any claim against the supplier in respect of a misrepresentation or breach of contract, he shall have a like claim against the creditor, who, with the supplier, shall accordingly be jointly and severally liable to the debtor.

You've correctly quoted a sentence from the Consumer Credit Act - but it doesn't support your argument about gifts in any way.


And, at best, this statement is somewhere between very misleading and wrong:

Nasqueron said:

The debtor doesn't have a claim, the person he gave the car to does. 

The person who is party to the contract can make a claim for breach of contract by the supplier.

The recipient of a gift has no contract with the supplier, so cannot make a claim for breach of contract by the supplier.

Again it's not wrong just because you disagree with my post.

There must be a direct link of debtor, creditor and supplier and the debtor must have a benefit of the unit. The car was gifted, the debtor doesn't have benefit of it, per the FOS case below

 Section 75 says that it is the debtor who needs to have a claim against the supplier in respect of a misrepresentation or breach of contract.

https://www.financial-ombudsman.org.uk/decision/DRN-3843258.pdf

eddddy

Nasqueron said:

eddddy said:

Nasqueron said:

eddddy said:

Nasqueron said:

The reason is that the S75 rules only cover direct links (purchaser/seller via the bank) and exclude gifts etc. 

Can you provide a link to an authoritative website that says s75 does not apply to to things which are purchased to be gifts?

Or point to the clause in the Consumer Credit Act that says it doesn't apply to things which are purchased to be gifts?
https://www.legislation.gov.uk/ukpga/1974/39/section/75

Line 1

If the debtor under a debtor-creditor-supplier agreement falling within section 12(b) or (c) has, in relation to a transaction financed by the agreement, any claim against the supplier in respect of a misrepresentation or breach of contract, he shall have a like claim against the creditor, who, with the supplier, shall accordingly be jointly and severally liable to the debtor.

You've correctly quoted a sentence from the Consumer Credit Act - but it doesn't support your argument about gifts in any way.


And, at best, this statement is somewhere between very misleading and wrong:

Nasqueron said:

The debtor doesn't have a claim, the person he gave the car to does. 

The person who is party to the contract can make a claim for breach of contract by the supplier.

The recipient of a gift has no contract with the supplier, so cannot make a claim for breach of contract by the supplier.

Again it's not wrong just because you disagree with my post.

There must be a direct link of debtor, creditor and supplier and the debtor must have a benefit of the unit. The car was gifted, the debtor doesn't have benefit of it, per the FOS case below

 Section 75 says that it is the debtor who needs to have a claim against the supplier in respect of a misrepresentation or breach of contract.

https://www.financial-ombudsman.org.uk/decision/DRN-3843258.pdf

Unfortunately, your comments about gifts are factually wrong.

It seems you've mis-read the Ombudsman's decision.

The Ombudsman's decision that you've linked to confirms everything I've said in this thread.

The Ombudsman's decision doesn't support what you've said about gifts in any way.


As I said in this thread, the reason the s75 failed was because the OP (the father) wasn't party to the contract, because the OP's daughter was named on the invoice for the car (and not the OP).

The Ombudsman clearly states exactly the same thing in their decision:

Section 75

But the difficulty this presents for Mr C’s claim against NBS is that he doesn’t appear to be a party to the contract with B. His name doesn’t appear on it (his daughter’s does) and the dress is clearly being made for his daughter, to her measurements and personalised to her, following a consultation with B. Mr C may have provided the money to buy the dress
...
...
...but in my view it is difficult to find that it was anything other than his daughter’s purchase, for which she was the contracting party. I find Mr C was not a party to the contract with B.
...
...
His daughter made the purchase from B. The gift was providing the funding for that purchase.

   Does that make sense? I think that seems to confirm everything I've said in my previous comments.

MattMattMattUK

roofy_2 said:

You therefore need to make sure you object to any attempt to wind up the company until you have a judgement against them.
How?, he turns out to be a one man band, I have been miss led all the way, when I arrived at the garage I assumed he was part of it, turns out he just rented one room and all the cars for sale on the yard were not his.  At the time I was not aware that this sort to of thing, and that I needed to clarify the extend of the business. He sold me a warranty but that didn't appear, and now he says he is closing on the 12th.  After the 12th July I will not be able to contact by phone by email or the premises.  So how can I take his to the small claims court?

Is he a sole trader or a limited company? If you bought the car from a limited company then the debt dies with the company and if it has no assets (which appears likely) then you have no realistic hope of getting any money back. If he is a sole trader then you need to establish if he has any assets, a home vehicles he owns personally etc. in which case it does not matter if he is "stopping trading" or not, the debt is with him personally and can potentially be pursued.