Do you think you’ve been had? Perhaps you bought a defective motorhome or accessory, or a site wasn’t as good as it looked in an ad. You may think you are due compensation. You may be thinking of going to court. If so, you need to be careful, not angry.
For readers who may have missed last month’s guide, before we cover further case studies (numbered 3 to 7, below), here are a few basic points.
HOW TO BEGIN
Rule number one: going to court is your last resort. It will cost you a lot of time and money, and the outcome is often uncertain. So, make sure your decision to take legal action has not been taken in the heat of the moment. Don’t get mad; your end goal is to get even.
Begin by putting your complaint in writing to the seller. Set out in detail what is wrong and why they should compensate you. Give the seller enough time to respond and the chance to investigate your complaint. Don’t be fobbed off by a seller who says the manufacturer or supplier is to blame. If selling that product is their usual business, they are responsible for any defects.
The seller may later claim some compensation from the manufacturer or supplier, but that is not your problem. At this stage, be open to resolving your dispute by negotiation, mediation or some other means.
The seller will probably know your legal rights, so they will feel safe ignoring outrageous claims that will fail in court. They will, however, take a lot more care if you take into account your legal rights. You need to show you’re in the know.
YOUR RIGHTS
If you bought a defective motorhome before 31 March 2003, you would have had a legal right to reject it, or keep it and claim compensation. But you had to prove it was defective when you bought it. Courts could not usually enforce a manufacturer’s warranty or guarantee, although manufacturers often honoured them as a matter of goodwill. You had no legal right to demand a replacement or a repair, although decent dealers usually did this.
On 31 March 2003 a directive from the European Parliament improved your rights. On that date, the Sale and Supply of Goods to Consumers Regulations 2002 updated the Sale of Goods Act 1979 so that the seller now has to repair or replace your motorhome if it is defective.
If this is impossible, too costly or cannot be done in a reasonable amount of time, you are entitled to a price reduction. You are also entitled to return the van and get your money back. In short, you no longer have to rely on the dealer’s goodwill. Likewise, the courts can now force a manufacturer to live up to its various guarantees and warranties.
Buyers received another important right on 31 March 2003. If a defect appears within six months of delivery, the law assumes it was there when you bought the van, unless the dealer can prove otherwise.
CASE STUDY NO3:
ONLY THE CRUMBLIEST, FLAKIEST…
“I bought a new motorhome, and in a short amount of time the paintwork degraded. When I took it back, the dealer said that it was not his responsibility as I must have done something to the vehicle.”
The law is on your side if the defects appeared within six months of your van being delivered. The ‘new’ Section 48A of the Sale of Goods Act 1979 says that even if the paintwork seemed fine on delivery, if it degrades within six months, then the law assumes it must have been defective when it was delivered. If the paintwork amounts to unsatisfactory quality, then the seller will be in breach of Section 14 of the Act. Degraded paintwork would probably be of unsatisfactory quality; yet a hinge falling off probably wouldn’t. So you don’t have to prove the paintwork was defective when the van was delivered – it’s up to the seller to prove the paintwork was fine.
Putting the burden of proof on the seller will make things much easier for buyers. But the law will not presume in your favour if the defect is incompatible with the presumption. This sounds complicated but comes down to common sense. If your van was clearly showing damage consistent with a traffic accident, the seller should be on safe ground suggesting it would be inappropriate to believe the damage was there to start with.
CASE STUDY NO4:
DROVE ME CRAZY
“I drove a long way to collect a new van and found all sorts of things wrong with it. I was supposed to go on holiday in it two weeks later, and I spent £100 on fuel just to get to the dealership. The dealer offered a small discount, but I would rather have a pristine, new motorcaravan.”
If the defects amount to unsatisfactory quality, you can insist on a replacement. You are entitled to satisfactory quality under Section 14 of the Sale of Goods Act 1979. Section 14 (2B) of the Act says this ‘quality’ includes appearance, finish and freedom from minor defects, and this test is applied: would a reasonable person regard the motorhome as unsatisfactory when minor or cosmetic defects are considered alongside its price and description? If you are paying the full price for a new van, then minor defects plus cosmetic blemishes could make it ‘unsatisfactory’.
Under the new Section 48B of the Sale of Goods Act 1979, you can now insist on a replacement within a reasonable time and without causing significant inconvenience. In this case, the replacement should arrive in time for you to go on holiday in two weeks. Section 48B says the seller has to pay to get the replacement to you – so you will not have to fork out the £100 you spent on petrol.
But beware. The seller could say the defects are too minor to make the vehicle unsatisfactory. Even if a judge agrees that the van is unsatisfactory, the seller could still argue a replacement is disproportionate compensation. He could say it imposes unreasonable costs upon him compared with paying for repairs or dropping the price. He could also say it was impossible to get a replacement to you in time for your holiday, and that you should have accepted the price cut.
You could reject the van and sue for your petrol costs and your money back. The court is very unlikely to give you the cost of your holiday if you cancelled it because you rejected the van. The law says you have to take reasonable steps to keep your losses low. That means you ought to take the holiday by hiring another van or accepting the defective van while keeping your right to sue for compensation later.
CASE STUDY NO5:
AWNING WARNING
“My new awning leaked terribly on holiday. When I got back, the retailer told me the supplier said all new awnings did this – but they seal themselves after being rained on the first time. I can’t see the point of buying an awning that doesn’t work until it’s been soaked. Nothing on the awning said this would happen. I want my money back – but the retailer says all awnings do this, there’s nothing wrong with it, and they can’t take it back now that it has been used.”
If pre-soaking was not an obvious step, you are entitled to compensation. Section 14 of the Sale of Goods Act 1979 says there’s an implied condition in the contract when you bought the awning: that it will be of satisfactory quality. Goods are not satisfactory if certain measures have to be taken before you can use them, unless those measures are pointed out clearly in advance. This is clear from The Case of the Itchy Underpants.
In 1936, Mr Grant bought some woollen undergarments from Australian Knitting Mills Limited. Unfortunately, the pants contained sulphites, used to bleach the cloth. The sulphites reacted with Mr Grant’s perspiration and gave him dermatitis. The seller argued that Mr Grant should have washed the pants before wearing them, to remove the sulphites. But there was no warning on the pack to say this ought to be done, so the court deemed the pants to be of an unacceptable standard.
As with the pants, there was no indication that the awning had to be soaked. If it did not work because it wasn’t
pre-soaked, you can return it and demand your money back plus compensation for your partially ruined holiday if the leaky awning affected your enjoyment. If the dealer wanted to avoid paying compensation, he would have to argue that any reasonable person would find it abundantly obvious that the awning needed to be soaked first – even if that information was not on the packaging.
CASE STUDY NO6:
JOIN THE QUEUE
“I bought a new motorhome – only to find it suffered from a long list of faults. When I asked the dealer to repair it, I was told there was a queue and that my van could not be seen for at least four weeks. Can I make him repair it any faster?”
At first sight the law is on the dealer’s side. If your van is of unsatisfactory quality, then the ‘new’ section 48B of the Sale of Goods Act 1979 lets you insist that repairs are done within a reasonable time and without causing you significant inconvenience. But it is highly likely a judge would regard four weeks as a reasonable time.
However, if you have a motorhome-based holiday booked within that four-week period, the faults will cause you a major problem. A court decides whether your inconvenience is significant, partly by looking at why you bought the goods in the first place. In this case, the court might decide that the dealership has caused significant inconvenience. If so, you could get back some of the money you paid for the van, or you could return the van and get most of it back. We say ‘most of it’ because, if you insisted on returning the van, the dealer would be entitled to keep some of your cash to account for the use you have made of the motorhome.
CASE STUDY NO7:
SERVICE WITH NO SMILE
“My motorhome was damaged while it was with the dealer,
being serviced. The dealer denies
he caused the damage, and I can’t prove otherwise.”
The law is on the owner’s side, because the dealer has to prove he took all reasonable skill and care. The law sees the dealer as
a ‘contractual bailee’, that is, a person entrusted with goods for a particular purpose and being paid for that purpose.
This means two things. First, the dealer must use reasonable skill and care to keep the motorhome safe and well. Second, the dealer has to prove he used reasonable skill and care. Failing that, he would have to prove the damage happened while the van was not in his care. This has been the law since 1915 and was set out in a case known as Joseph Travers & Sons Ltd v Cooper.
You should get compensation unless the dealer convincingly explains how he made sure your motorhome would not be damaged, and why such preventative steps were reasonable. It is worth telling the dealer that he has the ‘burden of proof’ – the onus is on him to explain the damage. You do not have to prove the damage was not there when you left the van at the dealers.
A word of warning. Dealers often add a clause to a repair contract to try to limit their duty to exercise reasonable skill and care. The clause might say they are not liable for loss or damage to your van while it is on their premises, but if it was not brought to your attention when you put your van in for repair, you can tell the dealer that the clause is not worth the paper it is written upon. You could also say the clause is unreasonable under the Unfair Contract Terms Act 1977 and/or the Unfair Terms in Consumer Contracts Regulations 1999.
• Part 1 of this legal guide was in PMH Feb ’04 issue. For copies, phone back issues dept: 08456 777812.
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