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

DullGreyGuy

I doubt they question if a contract existed, they can see a payment to a commercial organisation and so it's unlikely to have been a gift. They will want reasonable evidence as to who the parties of the contract were and what the contract was for.

born_again

To prove any breach of contract &/or misrepresentation. You need to prove what was agreed to, or any card provider will decline the claim.
It is up to the card holder to prove what was agreed too. Which is why CC's ask for the T/C of the agreement. As it allows card holder to prove their case & CC to either agree or disagree.

Surely in this case OP has something that states parts that were going to be used. If not then case is destined to failure.

eskbanker

DullGreyGuy said:

I doubt they question if a contract existed, they can see a payment to a commercial organisation and so it's unlikely to have been a gift. They will want reasonable evidence as to who the parties of the contract were and what the contract was for.

Yes, I think we're broadly in agreement here - just to reiterate, OP said:

Dulce-ridentem said:

My CC company are already arguing that there isn't a written contract, most details were agreed verbally.

Dulce-ridentem

Thanks all -- I have managed to get back the bike. So after 2 years and £1300 (and 9 hours driving) I am somewhat worse off than when I started (since I can. no longer copy the size of parts I used to own, that the shop lost). 

The receipt does say what is to be done in broad terms, and says "as soon as possible" - which doesn't in my view mean 20 months. This receipt mentions some components by name (these were not installed) and mentions that they should 'match' - which is ambiguous perhaps but is clarified in later emails. In emails (over 80 in all) the supplier repeatedly states that he has not done "as agreed", especially in choice of components (which he admits are not 'as in our original agreement' and repeatedly apologises for the substandard quality of his work and for how long it has taken. 

That is all I have in writing  but I do feel it at least demonstrates the _existence_ of a contract (which the CC company currently say I haven't demonstrated..I don't really know their rationale as they just seem to make blanket statements that I haven't demonstrated something. When I ask why my alternative evidence (mostly emails) is not being considered they just ignore me.  I'm not convinced they are reading my documentation.  They say I haven't demonstrated that the bike was badly built - even though it was unridable, components were mutually incompatible (so the gears couldn't be changed), and the supplier repeatedly apologised for having done a poor job and for not having done what we agreed.  Now I have the bike back I can get an independent assessment which will confirm my points (they aren't all qualitative, some of the errors are ludicrous and the bike wasn't even safe as delivered because of the handlebar-brake combination).  My local bike shop looked at it last year and identified multiple serious issues, all of which the supplier agreed in writing to fix at no cost. The bike was returned to him for a 'repeat performance' - which after almost a year he hasn't even started. The bike was still in the box when I found it (although parts had been removed, probably for other customers - I expect that was the fate of the very good quality kit that was on my bike when he first got it). 

I am so sad about my lovely bike - I've ridden over 20,000 miles on it and was just trying to update the gears ...

Dulce-ridentem

Question -- does it make any difference whether I claim misrepresentation or not? 

Amex at present make two assertions in rejecting my claim-- I have not shown that a contract exists and I haven't shown misrepresentation. They do not back up or clarify these assertions and I cannot understand  how they conclude the first. 

 

Since I'm not seeking damages, is there any point trying to make a claim of innocent misrepresentation? I don't think there is any burning reason to claim it. I asked Amex at the outset whether I should claim it when making the claim, because their form wasn't clear  (they didn't answer, of course).   I don't see any real benefit to arguing misrepresentation, unless it is obligatory to make a Section 75 which seems unlikely to me.  It may seem silly asking Amex but the Ombudsman says the credit card company will help me fill in the form! 

The outcome I'd like is enough of a refund to get the job done as it should have been done. Plus (now) the costs of my trip to get the bike, which were about £250 (@45p mileage plus overnight stay).    Probably less than I originally paid. 

eskbanker

I agree that there seems little value in trying to construct a misrepresentation claim here - the sticking point seems to be establishing the contract terms, and if you convince them of those then misrepresentation would be no easier to prove than breach.

Dulce-ridentem

@eskbanker Thanks again for all your time and help - it's greatly appreciated.   

For me, this isn't just the cost and inconvenience, this is a loved, beautiful machine that has seen me through thick and thin, commuting and crossing continents -  ruined by a company that used to have an excellent reputation.  It is going to take time as well as money to get it functional at all, let alone to a high standard.  So it helps to be able to discuss it all! 

eskbanker

Dulce-ridentem said:

@eskbanker Thanks again for all your time and help - it's greatly appreciated.   

For me, this isn't just the cost and inconvenience, this is a loved, beautiful machine that has seen me through thick and thin, commuting and crossing continents -  ruined by a company that used to have an excellent reputation.  It is going to take time as well as money to get it functional at all, let alone to a high standard.  So it helps to be able to discuss it all! 

But, to play devil's advocate, for Amex it's a simple question of whether or not there's been a breach of your contract with the supplier (and if so, what the most appropriate remedy would be) - your sentimental attachment to your bike, while understandable, doesn't form any part of that assessment.

Dulce-ridentem

@eskbanker Sure, I get that -- my comment was really to say that this process is emotional for me because of the damage done to something I care about, and that it has helped to have people acting as a sounding board and giving me good advice.

I  consider Amex perverse to question whether I have any contract at all. It's reasonable to question the terms but I have provided documentation that is reasonably solid. They are saying I can't prove the work was on this bike (I can now, I have the frame number which is on the receipt). Now I have the bike back I can, if they persist in rejecting the claim, get an independent assessment of the bike which I know will back me up regarding safety and reasonable care in the rebuild.

If the supplier admits in writing he failed to do what he agreed to do, can it really not be breach of contract? 

To me his assertion  a) implies there was an agreement (contract?) between us and b) confirms that he didn't fulfil it. 

Money changed hands, there is a spec written at the same time which wasn't met. A job that was supposed to take 3 months has still not been done 21 months later.  The "repeat performance" hasn't been started 11 months after he undertook it. He has promised specific dates (in writing) and missed them at least 6 times... Is there really an argument to be made that we didn't have a contract and that he didn't breach it? 

As a professional logician (lapsed) I am genuinely curious. I know law is different from logic... 

Dulce-ridentem

Quick update - by going to the shop (300 miles and an overnight hotel) I got the bike back (in the box it was sent to him in almost a year ago, untouched except it was missing the saddle). I also got a copy of the receipt which has made Amex agree to reopen the case. 

I believe the only reason for Amex saying there was no contract was that there was no receipt (for the balance payment - I had the deposit receipt). I suspect they hadn't read any other evidence I sent. Now we just wait a bit. 

I still think my husband's claim (which is progressing more slowly, they just acknowledged it) may be rejected on the grounds he was buying something for me. I had no idea that wrinkle in the law existed.