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Quote: Originally posted by cwdc56768 on 10/12/2012

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Hi Ally R,

 

You do not say in your post whether you bought the van with cash or using credit, say HP. The way you bought the van determines what legals you use to back your case for the dealer to pay for the repair. You also do not say when, last year, you bought the van. If it was less than 6 months ago you are on better ground if the Dealer declines to accept responsibility.

 

Let's assume that you paid cash (maybe via a bank loan). Under the Sale of Goods Act (SOGA) your caravan should be of satisfactory quality, sufficiently durable and free from any defects. Further it should be "as described".  Did the dealer describe it as "in excellent condition"? Regardless of what description the Dealer used it clearly has a defect.

 

Timing is important under the SOGA as that determines just what rights you have. If it is less than six months since the date of your purchase then, under s48B of the SOGA ( as amended by the Sale and Supply of Goods to Consumers Regulations 2002) you are entitled to demand a replacement or a repair. s48A3 of the SOGA, make it clear that where the kind of defect you found is found within six months of delivery of the caravan to you then the law deems that defect to have been in place on the date you contracted to buy it. The dealer has to proove otherwise to avoid its liabilities under SOGA. If the van was bought more than six months ago, then it is up to you to proove that the defect was there when you bought the van. This is all just about who has to proove what. The fact remains that the van has a defect and it was there when you bought it.

 

So, the Dealer has to pay for the repair. I would also insist that the dealer does the work as then you have the Supply of Goods and Servcies Act to protect you if the Dealer does a bodged job.

 

By virtue of section 48B of the SOGA (as amended) the dealer has to comply with two statutory obligations when undertaking the repair:-

1. to undertake the repairs within a reasonable period of time, and
2. without causing significant inconvenience to the you

If you elect to have a replacement, and remember the choice is yours, you cannot do so if that request is impossible to perform or disproportionate to the repair remedy. This is covered by section 48B (3) (a). From what you have said a replacement would be disproportionate so you need the repair option. 

 

If you bought the van using an HP arrangement, say via Black Horse, then the legal route is different.

 

If this an HP arrangement then you have not actually bought the van. Discover sold the van to the HP company and you are merely hiring it and paying the HP company for that hire. Once you have paid an agreed amount to the HP company ownership of the van will then transfer to you. Thus you do not have a contract with Discover to which the rights under the Sale of Goods Act applies.

In the case of HP it would be down to the HP company to get the Dealer to put the van right. s10 of the Sale of Goods (Implied Terms) Act 1973 states that in a Hire Purchase agreement there is an implied term that the goods supplied under the agreement are of satisfactory quality. Satisfactory quality includes a principle that the van must be free of even minor defects. The Hire Purchase company is in breach of contract and not the Dealer

You could reject the caravan, your HP agreement ends and the HP company take issue with the Dealer to get their money back.

The rights to reject you get under the Sale of Goods Act are different in the case of Hire Purchase. Rather than having the benefit of statutory protection you have to rely on general contract law principles. Under HP the right to reject goods is only lost when the contract is affirmed, and this requires a positive decision by you to carry on with the contract after having gained knowledge of the defect.

You write to the HP company to advise it of the defect and the result of that defect e.g water ingress and damp.  You would mention in your letter that "it is clearly not of satisfactory quality". Remind the HP company of its obligations under the 1973 regs.  You ask the HP company to talk to the Dealer to get it to agree to undertake the repairs at the Dealer's cost otherwise you will "not affirm the HP agreement, the caravan will be rejected and the credit agreement will then be deemed to be at an end necessitating a repayment of all monies paid under that agreement"  Use those words.  The HP company will lean on the Dealer. 

Courts tend to side with hirers in these cases.

If you get no joy from the HP company then advise them that you will ask the Financial Ombudsman Service to investigate. I reckon that they will decide in your favour on the facts you have given in this thread. 

 This advice has been given on the basis of the information the OP has supplied. If the facts are any different, or there is any additional information the advice may be different. Each case turns on its facts.

All the best

 

Phil

 

 

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That's very interesting reading Phil, I may be able to use that on a problem vehicle I have. Thank you for taking the time to write it all.

Happy New Year

BB