Section 75 claim question - husband paid on his card, receipt has my name on it.

Dulce-ridentem

Total disaster, we are long past chargeback. Can anyone advise please if Section 75 of CCA applies, or best way to discuss with the credit card companies?

Husband bought a bike for himself and in the same transaction paid the deposit (£750) for a specialist to adjust my bike frame and rebuild my bike on that frame with quality components. The receipt has my name on it (as owner of the bike which was being left with the shop).

Does this mean my husband can't make a Section 75 claim, as the repairs were for my bike?

Then, do I have a claim myself since I paid the balance of 550 on my own credit card?

After three days riding the bike I had understood the issues with it and contacted the shop who insisted I return the bike rather than have it fixed locally. The shop admitted in writing that they had done a bad job and had not done what was agreed. But they still have my bike a year later. So not only do I not have the service we paid for, I don't even have the valuable bike frame I left with them. Nor my components as templates for a rebuild (eg crank length, handlebar width).

We have started two claims under CCA - for the two cards.  Reading all the details I fear the one for my husband's deposit payment will be disallowed on the grounds he bought the bike rebuild for me. But shouldn't my credit card company be liable for the full amount anyway?

I've been without a bike for 18 months and now face starting again. If I  can't recover my frame and have to get a completely new custom frame of this quality made to measure, I think it would cost about £3,000 - 4,000.  Since the shop have lost all my components in addition to still having my bike, I no longer have any measurements so would have to start from scratch.  I don't want to make a profit but I feel CCA applies to my card payment, if not to my husband's and it would help to get my money back. I'd rather have my own bike than start from scratch.

My CC company are already arguing that there isn't a written contract, most details were agreed verbally.  Small bike shops don't really offer written contacts. In my view, dangerous (brakes)  and mismatched components (gears don't work) breach consumer rights, regardless of other issues such as not providing components of the agreed quality.  

All very complicated, lots of things one doesn't consider when simply making a purchase in a well-known, "reputable" shop.  Any wisdom people can shed would be appreciated - I'm new to this!

QrizB

If the shop is still there and trading, can you not send them a LBA then start a court claim against them? Why Sec 75?

eskbanker

If you paid for some of the purchase with your card then if s75 applies it'll cover the entire cost, rather than just the value of that second transaction.

However, it's not unreasonable for the card company to require sight of a contract if you're trying to hold them liable for costs arising from its breach, so you will need to provide some sort of evidence of the scope of work, etc, especially if the bike is no longer accessible to you (which prevents inspection by an independent expert).

Dulce-ridentem

eskbanker said:

If you paid for some of the purchase with your card then if s75 applies it'll cover the entire cost, rather than just the value of that second transaction.

However, it's not unreasonable for the card company to require sight of a contract if you're trying to hold them liable for costs arising from its breach, so you will need to provide some sort of evidence of the scope of work, etc, especially if the bike is no longer accessible to you (which prevents inspection by an independent expert).

Thanks re entire cost. 

Agreed it's reasonable to ask for contract and I do have the receipt which outlines what is to be done "strip, adjust [unintelligible], complete rebuild, match components [to quality of existing components], MA40 rims [which weren't provided].  " I would think this is enough.  Plus in writing in multiple emails "we will fit 105 components as originally agreed". The CC company are arguing that there is no evidence of the quality agreed and that's true (except for "match" - what we agreed verbally was no components  should be used of lower quality than those already on the bike,  all in Shimano range or Mavic MA40 wheels. Everything fitted was worse, or unbranded, and some was second hand.   There was a lot of discussion of course about what would be done, it didn't occur to me they would fluff the whole thing.

My local bike shop did look before I sent the bike back and wrote a list of what they thought was needed to fix it, about £750 components plus £150 labour - but it is just a list of components, it doesn't say "this is cr*p and needs to be fixed" it is just a proposal of what would be needed to fix.  That was my original proposal to the supplier - but they are cash poor (aka in debt per companies house) and I can see how they would prefer to try to fix it themselves. I've tried to be nice to them but 18 months is insane.

Dulce-ridentem

QrizB said:

If the shop is still there and trading, can you not send them a LBA then start a court claim against them? Why Sec 75?

Cos I think they're borderline going bust and won't be able to pay... I've been trying to get them to honour their promises on grounds that is better all round. Their last returns at companies house list losses over 20K last year. It's a tiny business, used to have a good rep.... I didn't think of Sec 75 til very recently.

eskbanker

Dulce-ridentem said:

Agreed it's reasonable to ask for contract and I do have the receipt which outlines what is to be done "strip, adjust [unintelligible], complete rebuild, match components [to quality of existing components], MA40 rims [which weren't provided].  " I would think this is enough.  Plus in writing in multiple emails "we will fit 105 components as originally agreed". The CC company are arguing that there is no evidence of the quality agreed and that's true (except for "match" - what we agreed verbally was no components  should be used of lower quality than those already on the bike,  all in Shimano range or Mavic MA40 wheels. Everything fitted was worse, or unbranded, and some was second hand.   There was a lot of discussion of course about what would be done, it didn't occur to me they would fluff the whole thing.

To be honest I can see why the card company would have difficulty with ambiguous wording - I don't know anything about high-end bikes (neither will the card company) but to the layman, 'match' could mean anything from colours to sizing as well as quality, so trying to argue that it was specifically a quality-based match that you wanted is likely to be problematic if there isn't further documentary support for that.

Bear in mind that s75 entails holding a credit provider legally liable to put their hand in their own pocket, i.e. they're not going to be recovering the money from the merchant, so your case does need to be reasonably self-evident.

Dulce-ridentem

@eskbanker - thanks !   Real life hits legal detail, I think...it's all so depressing. I've been really nice and I got shafted. Section 75 sounded like a good way forward (put me back in possession of a good quality custom bike, without driving the supplier into illness which I fear is a real possibility).

So many ways we can get things wrong.. however much I learn I still stuff things up regulalrly !

Regardless of the quality argument, shouldn't the bike be safely rideable when delivered? Any rebuild should result in a safe, usable bike, surely, even if that wasn't explicitly stated in writing? This is covered by the consumer rights act, I think - that the service (rebuild) was performed  with reasonable care and skill.

I can't change what was written.The whole spec is just 10 lines on a tiny scribbled receipt. I have stated honestly what was agreed and the supplier promised in writing that in putting things right he would fit "Shimano 105 throught as agreed".  The document of 'match' btw is clearly about components rather than frame, but it doesn't say what is to match what, it just says 'match'. Shimano 105 was by far the worst standard of equipment on the bike that was to be matched, that's why he promised to fit that quality. I expected to be given a detailed spec to confirm before the bike was built, but that stage was skipped. The website makes lots of promises about comms that weren't met.

So if I state that was the agreement and the supplier acknowledges that it was the agreement -- how can it not be the agreement? Verbal agreements are binding and neither party who was present is disputing the agreement.

It would truly have been ludicrously hard to get a document reflecting what was agreed, a bike builder is a craftsperson and not necessarily a writer. And of course I (foolishly) trusted he would do what he said he would do.

eddddy

If you cannot reach an agreement with the credit card company, you could take the dispute to the Financial Ombudsman Service (or court).

The Ombudsman (or the court) would decide on the dispute based on the "Balance of Probabilities".


i.e. They would look at the receipt, the relevant emails, your statement of the facts etc (and if you get an 'expert report' from a bike expert, they would look at that as well)...

... and then decide whether it is more likely that there was a breach of contract, or more likely that there wasn't a breach of contract.

If they decide it's more likely that there was a breach of contract, they can order the credit card company to reimburse your financial losses as a result of the breach of contract.

Your financial losses might be more or less than you paid with your credit card.


For example,

• if it costs £250 to put right the breaches of contract (i.e. fix the bike), you should get awarded £250

• if it costs £2000 to put right the breaches of contract (i.e. fixing the bike and consequential losses), you should get awarded £2000

 

eskbanker

Dulce-ridentem said:

Regardless of the quality argument, shouldn't the bike be safely rideable when delivered? Any rebuild should result in a safe, usable bike, surely, even if that wasn't explicitly stated in writing? This is covered by the consumer rights act, I think - that the service (rebuild) was performed  with reasonable care and skill.

Yes, it's undoubtedly true that there are implied terms in all contracts rather than them having to be explicitly included, but it still comes down to evidencing, i.e. your ability to prove that the bike wasn't safely rideable when delivered.

Dulce-ridentem said:

So if I state that was the agreement and the supplier acknowledges that it was the agreement -- how can it not be the agreement? Verbal agreements are binding and neither party who was present is disputing the agreement.

But if you're trying to hold a third party liable then they'll require evidence, not just of the existence of a contract but its terms.

Dulce-ridentem said:

It would truly have been ludicrously hard to get a document reflecting what was agreed, a bike builder is a craftsperson and not necessarily a writer. And of course I (foolishly) trusted he would do what he said he would do.

Yes, the above comments aren't intended to be a criticism of how you ended up with an agreement that was largely verbal, but simply observations of how this will potentially compromise your ability to hold a creditor liable under s75.

Dulce-ridentem

@eskbanker - thanks, that all makes sense and is pretty much my take. The safety aspect is basically because my 36cm handlebars were replaced with 42cm handlebars  I couldn't reach the brake levers while in a normal cycling position. I could reach them if necessary by sitting in a very uncomfortable position (because my shoulders aren't wide enough to ride with my hands that far apart).

I'm 5'2, the bike is pretty much the smallest you can build without using small wheels. So fitting handlebars that would suit a tall man is not appropriate and did prevent me using the brakes. So it's reasonable care as well as safety.  I met the bike builder so he knew my size and he had my old handlebars to compare.

Changers for a 9 speed setup with 10 speeds was never going to work very well - but since he has the bike all I have to prove this is my email to him mentioning it (and his promise to rectify it along with everything else).

The receipt actually specifies MA40 wheels and I was given unbranded - again, can't prove that without the bike, except that the supplier agreed to fit the wheels I asked for at no extra cost.

I'd feel fairly confident on 'balance of probabilities'.

born_again

eskbanker said:

Dulce-ridentem said:

Agreed it's reasonable to ask for contract and I do have the receipt which outlines what is to be done "strip, adjust [unintelligible], complete rebuild, match components [to quality of existing components], MA40 rims [which weren't provided].  " I would think this is enough.  Plus in writing in multiple emails "we will fit 105 components as originally agreed". The CC company are arguing that there is no evidence of the quality agreed and that's true (except for "match" - what we agreed verbally was no components  should be used of lower quality than those already on the bike,  all in Shimano range or Mavic MA40 wheels. Everything fitted was worse, or unbranded, and some was second hand.   There was a lot of discussion of course about what would be done, it didn't occur to me they would fluff the whole thing.

To be honest I can see why the card company would have difficulty with ambiguous wording - I don't know anything about high-end bikes (neither will the card company) but to the layman, 'match' could mean anything from colours to sizing as well as quality, so trying to argue that it was specifically a quality-based match that you wanted is likely to be problematic if there isn't further documentary support for that.

Bear in mind that s75 entails holding a credit provider legally liable to put their hand in their own pocket, i.e. they're not going to be recovering the money from the merchant, so your case does need to be reasonably self-evident.

This is the reason for a independent report. 👍