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  • FIRST POST
    • reggie
    • By reggie 10th Apr 19, 6:40 PM
    • 195Posts
    • 38Thanks
    reggie
    Small Claims
    • #1
    • 10th Apr 19, 6:40 PM
    Small Claims 10th Apr 19 at 6:40 PM
    Would appreciate some advice on the following. My husband sold his camera kit earlier this year via a forum. After seven weeks he was contacted by the buyer to ask whether he was aware one of the zoom lenses didn't turn to its full range. He wasn't, and had never had any issues, he was prepared to sort cost of fixing - then he checked the photo on the advert he had placed which showed the lens zoomed close to its maximum and a lot further than the buyer said it would now go as shown in the buyer's photo he sent. He explained this to the buyer who still wanted him to repair, but knowing he had sold as described and with 7 weeks having elapsed where anything could have happened, he explained he didn't feel he was responsible. 6 weeks on, he has just had an email from the buyer telling him that the cost was 180 and he will be taking him to small claims court in Scotland (a long way from us) and my husband will have to travel up there. Can he be asked to go to Scotland to defend this claim? I would welcome some advice. Thanks
Page 2
    • lincroft1710
    • By lincroft1710 15th Apr 19, 3:59 PM
    • 11,758 Posts
    • 10,188 Thanks
    lincroft1710
    It does seem like he's trying to make it so uncomfortable and stressful for us that we will pay to make it just go away.
    Originally posted by reggie
    And if you do, that's encouraging the buyer to try it on with someone else
    • reggie
    • By reggie 15th Apr 19, 4:16 PM
    • 195 Posts
    • 38 Thanks
    reggie
    The aim is not to give in, however stressed we feel - my husband has now become quite angry that his honesty is being questioned when most people would likely have just said 'tough' when contacted after several weeks; but, even though he had never had any issues with the lens, he felt if there was any doubt he'd missed something then it was only fair!!
    The offer of looking into getting it repaired seems to be the basis of his claim that my husband has knowingly sold him faulty goods; despite that offer being withdrawn once my husband saw evidence that the initial photo showed the lens without this fault.
    So he will respond to the latest email regarding my husband's dishonesty and then no more. Who knows what the buyer will then do.
    • unholyangel
    • By unholyangel 15th Apr 19, 6:13 PM
    • 13,394 Posts
    • 10,738 Thanks
    unholyangel
    The aim is not to give in, however stressed we feel - my husband has now become quite angry that his honesty is being questioned when most people would likely have just said 'tough' when contacted after several weeks; but, even though he had never had any issues with the lens, he felt if there was any doubt he'd missed something then it was only fair!!
    The offer of looking into getting it repaired seems to be the basis of his claim that my husband has knowingly sold him faulty goods; despite that offer being withdrawn once my husband saw evidence that the initial photo showed the lens without this fault.
    So he will respond to the latest email regarding my husband's dishonesty and then no more. Who knows what the buyer will then do.
    Originally posted by reggie
    Tbh I'd draft a full on response to him. Someone like this you want to knock it home on every single point. Either they're genuine in which case maybe they weren't aware of the rights (or lack thereof) in a private sale. Or they're a scammer in which case addressing it from a legal perspective will clue them into the fact you weren't born yesterday and know exactly where you stand.

    The contract between them was governed by the SoGA. The soga state the only requirements for goods sold by one private individual to another is that they must have good title and the goods must be as described. There are no implied terms as to fitness for purpose or satisfactory quality.

    Furthermore, as there was no implied term regarding satisfactory quality and as your husband did not offer a warranty when selling, even if the goods do fail to be satisfactory quality (which include durability), there is no breach of contract - actionable or otherwise. Therefore no right to remedy. Therefore any remedy offered was purely goodwill and could be rescinded at any time - even after accepted as the buyer gave no consideration in exchange so no contract could be formed separately for it and due to the above, it wouldn't form part of the original contract of sale. Although its not clear that a remedy was actually offered - from what you've said, your husband merely offered to look into the possibility, not promise that he would actually repair.
    Money doesn't solve poverty.....it creates it.
    • reggie
    • By reggie 15th Apr 19, 8:37 PM
    • 195 Posts
    • 38 Thanks
    reggie
    Thanks for the detailed reply; my husband was fully prepared to get the camera fixed as he was concerned that he had missed something; it was only when he got home and revisited the ad that he saw this fault was not there on the photo and so rescinded his offer to sort a repair.
    I don't fully understand this part of your explanation -'even after accepted as the buyer gave no consideration in exchange so no contract could be formed separately. Can you explain? Thank you.
    • hollydays
    • By hollydays 15th Apr 19, 9:30 PM
    • 17,139 Posts
    • 13,324 Thanks
    hollydays
    Hes trying to intimidate you.
    • unholyangel
    • By unholyangel 15th Apr 19, 10:10 PM
    • 13,394 Posts
    • 10,738 Thanks
    unholyangel
    Offering to assist someone is not an admission of guilt. Not even close. They are a con artist plain and simple. They either want a "discount" or plan to sell the camera on at a profit.
    Originally posted by waamo
    I mean thatunless your husband offered a warranty or a contract was formed separately for the repair, then it can't be a contractual obligation.

    A contract requires both parties to promise consideration - something of value. So each party promises to receive a benefit and suffer a detriment. With the detriment of 1 being the benefit of the other. ie your husband agreed to sell them his camera (your husbands consideration) in exchange for x (the other persons consideration).

    Even if your husband promised a repair, unless this was backed by consideration from the other party, it wouldn't form a contract.
    Money doesn't solve poverty.....it creates it.
    • reggie
    • By reggie 16th Apr 19, 6:06 AM
    • 195 Posts
    • 38 Thanks
    reggie
    Thanks - think I understand. So what would the consideration by the other party have been in response to the offer to repair?
    I would also think that once the basis of his offer to repair - namely, that when he sent the lens he had not noticed this fault- proved groundless (as evidenced in the photo); he was justified in rescinding the offer to repair. To be honest, I wish he had just said 'tough'! but that is not my husband's way.

    Also, he has offered to go halves quoting the fact he should try to resolve issue; but as my husband didn't agree he indicates he will start with filling out forms. It is only 19 to do this in Scotland, with no expenses to be paid, so a cheap way to pursue. My question is: if/when we receive form, we then complete form refuting claim - which is sent to sheriff - can they then review case and decide no case to answer or does it have to then go to court?
    Last edited by reggie; 16-04-2019 at 8:06 AM. Reason: Addition of sentence
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