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Hi Phil

I agree.  I think Surfer does not really appreciate that you both have said the same thing.  You just gave some extra options.

Even if I disagree with someone, I try to say so nicely.  It's when it gets personal that it's a problem.  Let's hope we can all get back to our previous harmonious state - that may be a bit ambitious.

Jim

Its ok for keyboard lawyers to quote the law but it is not them who will have to endure the grief that this process would involve.

Exactly Tentz. Your legal rights are one thing, the practicalities are often another. The OP wanted to know where he stood. Armed with his legal rights, he can then sort out his options.

Phil

Day 2, I have spoken to dealer and explained that my contract is with them. They agreed they thought it would be better for Manufacturer to deal with warranty but the time is too lengthy. They would be happy to do the the repair work. I stated that I flt that I was considering if I wanted the item repaired or to go down a replacement route. Obviously they would be prefer to repair as it would be difficult to get a replacment model like for like as Swift are already using producing the 2011 models. (It is a dealer special model) I also explained why I did not feel I wanted to go the repair route as I have had previous problems on another van where I had problems year after year with the warranty and felt that seeing as it had been reported in under 3 months that It should come under the Sale of Goods Act which has the option of repair or replace. They will pass on to manager to see if this is an option and would try to contact me today which they were unable to. They have told me that they would inspect the van after 3 months to make sure the problem had been dealt with. I said  the problem with this was if it was not sorted then the van would be older and a replacement van would not be an option.

I will have to use all my persuasive skills to go down the replacement road as my wifes view is that this is the second new van with problems and cannot put up with this all again.

 "I said  the problem with this was if it was not sorted then the van would be older and a replacement van would not be an option."

Do you mean that would wait and see if Swift have done the work in three months and if not then decide whether to replace the van? 

If you maybe think that six months bars you from getting a replacement (if I have understood your post correctly) that is incorrect. You are still entitled to demand a replacement if the van does not meet the requirements of the SOGA.

If your answer to my second para is "yes" and you are happy to wait and see if the work is done in that timeframe, I would suggest that, to protect your position, you ask the dealer to confirm in writing, now, that if the van is not satisfactorily repaired by the (give a specified date) then they will give you the same make, model and age of van as a replacement or, if that is not available, its equivalent.  Tell them you will wait in the office for the letter. In this way, the deal over a replacement is done now and not in six months time and you have the comfort of knowing that is sorted one way or another. If they will not write it out there and then, then maybe just demand your rights under the Act for a replacement.

Maybe they didn't get back as they were waiting for Swift to come up with an earlier date for the van to go into the workshop, so your demand maybe working. Let's hope

All the best

Phil

Day 3,

Spoken again to my dealer who contatced Swift who said they were unable to move my position in the queue. My dealer have said that they would be willing to sort the problem under warranty considering the length of time Swift will take.

I have said that under consideration I do not want the van repairing I want a replacement which took them by shock. I have told them I am writing a formal letter stating the Sale of Goods Act. They have said that they do not have a van that they could replace my van like for like with. They asked if I was interested in the 2011 van and put money towards it. I have said that I am after a replacement model of the same model or similar but are not willing to put more money towards a new model. I have said that maybe a similar model may be considered or a refund on the original caravan. I have left this with the dealer who will also relay this to the manufacturer. I have stated that my contract is with the dealer and not the manufacturer.

I have said that I will write a  formal letter stating I am looking for replacement and not a repair.

It is all very amicable with the dealer at the moment and I have said I prefer to keep in contact in this way to resolve the situation rather than just formal letters which could put each others backs up but will follow all conversations up formally by letter.

Seems to be going the right way. All the best

Phil

Thanks Phil.

I am very nervous about the whole thing and apreciate all your help and advice to conclude   a smooth resolution . As people have said the practicalities are very different even though the legal route is there it could cause me a  lot of grief. I am trying to be even headed about the problem and to go the replacement route as I would worry about getting the caravan fixed due to previous damp issues on my last van.

Hi Gadgetman

If it is of assistance in writing your letter here are the statutory requirements. (This may also be of assistance to anyone else who may face these issues.

The Sale of Goods Act 1979 was amended by The Sale and Supply of Goods to Consumers Regulations 2002 (S&SoGtCR) by the insertion into the 1979 Act of new sections 48 A-F. So if you ever refer to the SOGA in your letter always add "(as amended)"...maybe even "as amended by The Sale and Supply of Goods to Consumers Regulations 2002)" . The dealer may choose to take legal advice and it helps if their lawyer sees a letter that properly quotes the law.

It is section 48B which gives you the choice of repair or replacement when the goods (caravan) does not conform to your contract for purchase. Under the terms of the SOGA that contract, as I said,  I my first post, requires the caravan to be of satisfactory quality, sufficiently durable and free from any defects. Your letter may say something like "As damp has been found within less than six months of the date of purchase then, by no stretch of the imagination can a van be described as “free from defects” or of “satisfactory quality” as required by the Sale of Goods Act 1979 (as amended".

Section 48A (3) indicates that where this kind of defect 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.

If you elect to have the caravan repaired, then by virtue of section 48B of the SOGA (as amended by the S&SoGtCR)  the dealer has to comply with two statutory obligations:-

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

If the caravan is not useable at the moment then delaying those repairs to the manufacturers timetable will cause a significant inconvenience to you. That would then tend to undermine any argument from the dealer that you should wait until the van can get into the Swift workshop. However, if the van can reasonably be used the dealer is not breaching that second obligation by making you wait. Question here is whether it can be used for human habitation with that level of damp. This is important in any argument with the dealer over whether there should be a delay over the repairs.

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).   You say that the model you purchased was a dealer special model and that a similar van is no longer available. The dealer may be able to obtain one from another dealer or perhaps Swift. If Swift were to make one just for you I would suggest that that would be “disproportionate”. So, ask the dealer if he can obtain one from somewhere else. Now, you need to bear in mind the “significant inconvenience” issue. If the dealer can show that you would suffer a far greater “significant inconvenience” by waiting for a replacement rather than for the repair to be done, the dealer can say that you should wait for the repair.

You can argue that the dealer should provide an equivalent caravan if it cannot provide the same model. The law requires the dealer to put you into the position you would have been in if there had been no breach of contract. Giving you an equivalent caravan, which cost considerably more, maybe due to a higher spec, is not doing that, and so the dealer could ask you to pay the difference. Section 48B(4) applies. You say that the dealer has offered this way forward which, to be fair, is reasonable.

Under section 48C you can, as a last resort rescind the contract and the dealer has to give you your money back. However, you can only rescind if it is impossible to repair or replace without significant inconvenience or such repair/replacement is disproportionate or at an additional cost to the dealer (48B (3) issue above). Again this comes down to whether you can use the van whilst waiting for repairs. So, rescinding the contract has difficulties, if the dealer sticks to the letter of the law. Anyway, you will have paid interest on your loan which you could not, strictly, recover from the dealer, so rescinding may not be attractive.

The above assumes that you did not purchase using HP.

So, if you want a replacement,  your letter needs to argue that

The van cannot be used for human habitation whilst damp.

The delays in effecting any repairs are a significant inconvenience

The dealer must provide the same model or equivalent asap.

The onus is then on the dealer to look at the Act to see what options it may have to avoid a replacement in order to try the repair route.

I can understand your nervousness. Its not easy but just remember that the law is on your side. You are in the driving seat

The none legal argument to the dealer is "Pull your finger out and get it sorted!"

All the best

Phil 

Quote: Originally posted by gadgetman on 08/9/2010

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I have said that under consideration I do not want the van repairing I want a replacement which took them by shock. I have told them I am writing a formal letter stating the Sale of Goods Act. They have said that they do not have a van that they could replace my van like for like with. They asked if I was interested in the 2011 van and put money towards it. I have said that I am after a replacement model of the same model or similar but are not willing to put more money towards a new model. I have said that maybe a similar model may be considered or a refund on the original caravan. I have left this with the dealer who will also relay this to the manufacturer. I have stated that my contract is with the dealer and not the manufacturer.

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Update.

Received a phone call today from both my dealer and also Swift.

The main body of the reply is  Although this fault is disappointing Swift Group and ourselves are not in a position to support a rejection of the unit as neither ourselves nor The Swift Group have been given the opportunity to inspect the caravan or repair it under the terms and conditions of the warranty policy.

They have managed to reorganise their schedule and get the van to swift for w/c 25th October or my dealer could repair the damage. So I am almost back to Stage one except the repair date is sooner.

Hi gadgetman,

On holiday at the moment and just been picking up emails etc so popped in here. When I was in practice and the client was wrong there was always the denial approach to get the best deal for the client. "My client denies any liability. However, my client may be willing to offer to you, on a without prejudice basis, the sum of £x in full and final settlement of all or any claims" kind of approach. What that means, rather like my interpretation of your dealers letter, is - "My client accepts that he is in the wrong and that you are completely in the right. However, my client would like to negotiate a settlement so as to keep his financial exposure to the absolute minimum, and to avoid the perils of litigation".

Under your threat, your dealer and Swift have moved considerably to get the repair done within a reasonable time so as to avoid the dealer having to find you a replacement, and Swift having to compensate the dealer. Its their cheaper option.

To be fair, getting an identical replacement may be impossible, so the only other alternative (repair aside) may be for your money back (s48C). Now that they can repair it, soon,  then that is the way forward, under the legislation in your circumstances. Many may think that you are entitled to your money back but that is not how the law operates on these facts. The dealer can go beyond the law and give you your money back of course.

So, its either accept their offer, or, if you want a replacement to seek to argue that repairs at the end of October is either an unreasonable delay or causes you significant inconvenience, or both. Not a promising option compared to the offered repair I have to say.

If you go for the repair ask them to confirm that

a. That repair is warranted, on the same terms as the original warranty, for six years from the date of competion of the repair, and

b. If it is found to be an unnacceptable repair then they will promise to provide a replacement or your money back (plus interest equal to the interest you are paying under your loan).

both a and b would not be unreasonable in the circumstances. If they will not give those assurances then they are denying you your current rights under the law (as time will have moved on - see my posts re the six months rights etc) and that would be a significant inconvenience.

All the best

Phil