Scottish Consumer Legal Rights (Small Claims Court) on Private Sale of 'Faulty' Electrical Appliance

ecosse206

Hi, I seek some clarification on the legal position regarding the sale of an American Fridge Freezer with Water Dispenser/Ice Maker.

The fridge freezer was bought via Gumtree and was not viewed or tested at the point of pick up. It was not advertised as having any faults and the seller claims was working before sale (however water/ice maker untested as in garage - not advised at point of sale but pump/lights came on which gave strong indication all was ok).

A video was sent to the buyer before purchase showing no cosmetic damage, however the appliance was switched off.

The buyer sent two employees from their business to pick it up and they arrived early (seller unable to show working) and loaded it onto their van. The seller advised it was bulky and heavy and recommended that the doors/drawers were removed to aid - whether this was done is ambiguous.

Upon setting the fridge freezer up it is claimed that the fridge trips out the electricity due to a short in the wiring loom and the ice maker is faulty due to two pizza boxes having slipped down the back of the drawers and damaged the unit. There is also a leak from the filter housing when switched on AND connected to water. All evidenced by an engineers report - however there is no confirmation that these issues occurred before sale.  

There is no guarantee that the appliance was not damaged in transit and/or that damage has occurred as a result of dismantling and reassembly.

The buyer has then returned the appliance unannounced and put it on the sellers home driveway outside, unattended handing a letter personally to the seller threatening legal action which both parties would like to avoid. 

Throughout the dispute the seller has offered £200 back towards the repairs along with replacement filters but the buyer wants the full amount back. The seller feels he should not shoulder the full responsibility when there is ambiguity and the buyer was willing to take on the risk of buying sold as (un)seen.

Is legal action appropriate if so under what law? Did the seller misrepresent?

Any advice gratefully received...

eskbanker

Your second-hand shopping rights

• Second-hand goods bought from online retailers are covered by the Consumer Contracts Regulations.
• If you buy second-hand goods from a retailer, you're also covered by the Consumer Rights Act.
• Buyer beware if you’re buying from a private seller - they don't have to draw attention to defects.

https://www.which.co.uk/consumer-rights/advice/what-are-my-rights-when-buying-second-hand-goods-apeuz1f3nYUK

user1977

ecosse206 said:

The buyer sent two employees from their business .

If the buyer is a business then they don't have consumer rights.

Okell

Presumably you are the seller?

If the buyer is a business ( "... The buyer sent two employees from their business to pick it up...") and the seller is a private individual and was unaware of any issues, I'd suggest that this is a genuine case of caveat emptor and that the business buyer should have satisifed themself before purchase that the item was in good working order.

But I don't understand why you would offer the buyer £200 towards repairs if you didn't know about the problems beforehand.  Why have you offered him £200?  Makes you look more than a little suspicious...

(Is he a business buyer, or is he a consumer who just happened to send a couple of his employees round to pick it up?)

Alderbank

The devil is in the detail here.

Are you (the seller) a private seller or are you a trader? A lot of sellers on Gumtree make some income from acquiring and refurbishing furniture, toys, phones, household goods, etc. 

Is the buyer a consumer?

You have summarised what you said in the advert. But what exactly did your ad say, word for word (redacting any contact details)?

The relevant law could be Sale of Goods act 1979, could be Consumer Rights Act 2015. Both apply (almost) equally in Scotland or in England & Wales.

We don't have small claims courts here in Scotland, but a claim can be brought in the Sheriff's court under the Scottish Simple System, which is similar.

ecosse206

user1977 said:

ecosse206 said:

The buyer sent two employees from their business .

If the buyer is a business then they don't have consumer rights.

The buyers own a holiday rental business and a renewable energy business. Whether the appliance was put into either of those businesses or their personal home I do not know. I also do not know if it was funded by the business or their personal finances.

Alderbank

...all of which is irrelevant if you are a private seller.

Are you?

ecosse206

Okell said:

Presumably you are the seller?

If the buyer is a business ( "... The buyer sent two employees from their business to pick it up...") and the seller is a private individual and was unaware of any issues, I'd suggest that this is a genuine case of caveat emptor and that the business buyer should have satisifed themself before purchase that the item was in good working order.

But I don't understand why you would offer the buyer £200 towards repairs if you didn't know about the problems beforehand.  Why have you offered him £200?  Makes you look more than a little suspicious...

(Is he a business buyer, or is he a consumer who just happened to send a couple of his employees round to pick it up?)

Yes, I am the seller but I have tried to word it in a neutral way.

They were on holiday so used business employees to collect. Whether this is for business or personal use I have no evidence.

They repeatedly asked for a refund and I felt that I would offer a partial refund in hopes of reaching an amicable resolution. The wording of their letter states that they do not want to go to court and wording on the Simple Procedure page says "Before raising a claim form it is important that you have tried to settle the dispute. This could mean writing to the person or company you have the dispute with and trying to agree a settlement."

ecosse206

Alderbank said:

The devil is in the detail here.

Are you (the seller) a private seller or are you a trader? A lot of sellers on Gumtree make some income from acquiring and refurbishing furniture, toys, phones, household goods, etc. 

Is the buyer a consumer?

You have summarised what you said in the advert. But what exactly did your ad say, word for word (redacting any contact details)?

The relevant law could be Sale of Goods act 1979, could be Consumer Rights Act 2015. Both apply (almost) equally in Scotland or in England & Wales.

We don't have small claims courts here in Scotland, but a claim can be brought in the Sheriff's court under the Scottish Simple System, which is similar.

I am a private seller. 

My advert said:

Description:

Blomberg KFD4953XD

Large American style Fridge freezer with French

doors for sale.

House move to home with integrated appliances

forces sale

Fresh food compartment volume: 387 litres

Freezer compartment volume: 152 litres

Total Volume: 539 litres

Plumbed water dispenser and 2 replacement filters

Internal Ice-maker

Height: 182.5 Width: 84.0 Depth: 74.5cm

Currently listed on Bloomberg's website and selling for £1,129.99

Based in XYZ

Pick up Only.

ecosse206

Alderbank said:

...all of which is irrelevant if you are a private seller.

Are you?

Yes, I am a Private Seller

Alderbank

Thanks for your prompt replies.

Based on them I think you are OK, particularly since the buyer completed the contract by taking the fridge away without powering it up and testing it in any way, in spite of that being available if they had arrived as agreed or waited for your return.

My only comment now is that your ad did not include a price, even a guide price (I see you included the current new retail price). Presumably the buyer contacted you and made an offer which he would pay before collection and which you accepted?
It is possible that the buyer might allege that before you agreed on a price he asked various questions and only offered that price because of the answers you gave.
Was that the point where you said something like 'If you can find anything wrong with it, I'll give you £200 back'?

Out of interest, what was the final agreed price?