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You say that this is a new caravan but you do not indicate the length of time since your date of purchase.

The legal position when purchasing a new van from a dealer is that under the Sale of Goods Act your brand new caravan should be of satisfactory quality, sufficiently durable and free from any defects. It would seem from what you say that the dealer agrees that there are defects and that Swift have agreed to remedy them under their warranty. That warranty is a contract between you and Swift - nothing to do with the dealer. You have a separate contract with the dealer to which the Sale of Goods Act applies.

If more than four weeks have elapsed since your purchase, but less than six months, your remedy is to have a replacement van or a repair under the Sale and Supply of Goods to Consumers Regulations 2002. Dealers will try to keep you and the van together and leave the manufacturer sort out the problem under their warranty. Many people go along with this approach and I am afraid, from what you have said, that that has occurred in this case. You have chosen to have a repair. Generally, once you have made that choice you are stuck with it. Once they start the work, you can’t then say that you have changed your mind and want a new van.

All is not lost. Under the Regs they have to undertake the work within a reasonable period of time. You do not specify just how long they have had the van (nor the extent of the other faults). Maybe they have done the work within a reasonable period of time, or the outstanding work will be completed within that "reasonable" period.

If they fail to complete everything reasonably then you may be able to demand a new van. There is insufficient information in your post to form a view

From what you have said I am afraid that you are not in that position.

If you have had the van for more than six months the situation may be different.

If Swift has failed to comply with their warranty then you must insist that they do.

It may be the case that there are so many more facts to this case which may change your legal position. My comments are based purely on the facts presented.

Phil

If you wish to provide further information, which may affect the advice given so far then these are the kinds of facts that are required

1. Date of Purchase

2. Did you inspect the van before you bought and was the faulty floor (or other defects) either pointed out to you before you bought or so obvious that you really should have noticed it (or them) before buying?

3. (a) Date you spotted the uneven floor and the date you first complained

    (b) Date you noticed the other defects and the date you first complained about those. What were those other defects?

4. What exactly did the dealership say about the defects. Their precise words are important. You say that they said "I have been told by discover that I have to accept the van back as the faults are minor". Were they the exact words? Its just that under the Sale of Goods of Goods Act, If the van is new, it should be free from even minor defects (this falls within the definition of "Satisfactory Quality" I mentioned above)

5. What exactly did you say to the dealership when agreeing to have the repairs undertaken?

6. Have all the repairs been undertaken?

7. Are the repairs acceptable? If not then why not?

8. How long did it take for the repairs to be undertaken?

9.Did you buy under a credit agreement i.e. HP

10. Did you use a credit card for any part or the whole of the payment for the van?

11. Whilst the van was in for repair had you any plans to use it? I am thinking here about any bookings you may have made which you could not enjoy whilst the repairs were being undertaken.

12. Do you have any idea of the total cost of the repairs?

Phil

..and you went back to them after already having had a faulty van a few years back???

Sorry but I'd have given them a swerve.

On a more serious note - I'd try to get this sorted asap as Discovery have been in all sorts of trouble financially for a while now.

Good point to raise Surfer01, as I am sure that most buyers of vans might not understand how the whole legal process hangs together. You may get a "warranty" from your dealer if you buy a second hand van. When you buy new (as did the OP) you get a warranty from the manufacturer. In recent years manufacturers have permitted their own warranties to be transferrable to new owners of the vans buying them second hand. You need to check the terms of any manufacturers warranty allegedly coming with a second hand van to see if it does transfer to you.

So how does the legal trail unfold?

When you buy a caravan (as was the position with the OP) you have your contract with the dealer to which the Sale of Goods Act, as amended, applies. You have a separate contract with the manufacturer (Swift in this case) which has become known as the "Warranty". The first contract gives you quite a wide range of statutory protections and the latter (warranty) a limited protection according to the terms of that warranty. The warranty cannot override your statutory rights and is in addition to those rights.

If you look at the Swift warranty, or any other for that matter, they are clearly expressed to be made with the buyer of the van and not the dealer. They are included as an additional benefit to the buyer for buying the van.

Manufacturers warranties include a requirement to report defects to your dealer and then the dealer sends the van to the manufacturer, or, if workshop facilities permit, the manufacturer authorises the manufactuer to do the work and the manufacturer agrees to pay the dealer.

So, when you find that your new caravan is faulty you go back to your dealer to seek a remedy. In law, you are going back to the dealer because (a) your contract and sale of Goods Act rights are with the dealer; and (b) your warranty requires you to. In law, you have to decide whether you are going to enforce the warranty or your contract with the dealer.

Then we come to the real world. In the real world nothing happens in the way that contract law or legislation is set out. You might demand that your dealer fixes it but a dealer rarely deals with a problem in accordance with your contract with them or the Sale of Goods Act. Instead they nudge you towards the manufacturer to claim redress under the warranty. Why not really? That is what your warranty is for. Dealers do not usually have workshops set up to undertake major manufacturing repairs (such as refitting a caravan floor) so it makes sense for them to send your van off to the manufacturer.

You can stand by your contract with the dealer and the terms of the Sale of Goods Act and demand that the Dealer repairs your van and can insist that they do not send it to the manufacturer as you want the problem resolved in accordance with the Sale of Goods Act. Not much point though if the dealer has not the workshop facilities. Thus you end up claiming under the warranty.

Truth is, to most folks, as long as the van is put right who cares who does it? The warranty system works, well by and large anyway. If it doesn't then you fall back on your statutory rights and chase the dealer.

What most folks forget to do in these circumstances is to keep their options open. I suspect that the OP may have fallen into this trap. Its no criticism, its just that if you don't understand fully how these things work you miss a trick. Always say, "OK I will accept that you can ask the manufacturer to do the work under the warranty but I wish to make it clear that that is without prejudice to my right to enforce my statutory rights should the repair be unsatisfactory, be not undertaken in a reasonable time, or undertaken in a manner that is of inconvenience to me". Bit of a mouthfull, but it protects your position.  

Now, in the OP case, she (I assume it is "she") has gone down the warranty route and is unhappy and has posted  because she is "trying to find out my legal rights". Its not quite straightforward as her legal rights have to be considered under two headings - contract with dealer and warranty wwith Swift. She may have a cause of action against both. Legal rights depend upon the facts of the case and that may lead us to a number of other headings to consider

1. Her position as a buyer or as a person with an HP agreement. Thats another contractual issue. If she has an HP agreement then her contract to acquire the van is with the HP company and not the dealer.

2. Her position if any part of the purchase of the van was with a credit card and that involves another contract with the credit card company and legislative provisions.

3. The timing of events as the Sale of Goods Act as amended (and Regs made under it) give you different "legal rights" at different times. In effect, your rights are watered down the longer it is between purchase of a van and you reporting the defect.

So, following the contractual route can be a bit of a maze. Well, a hell of a maze at times

Phil 

We are actually both saying the same thing here Surfer01. Under SOGA your claim is via the dealer. Warranty is nothing to do with SOGA. The warranty agreement requires the buyer of the van to contact the dealer first. So that's what you do, if you want to claim under the warranty. Then arrangements fall into place for the van to be repaired as you and I have described. Dealers move down the warranty route as that just makes sense, especially if they have some financial problems!!!  As I say, in the real world no one follows the letter of the legal route. Legally, to be a purist, dealers should be asking if your claim is under the warranty or Sale of Goods. Doubt if anyone would understand that so they just get on with it. Its industry practice.

The only difference in what we are both saying is that I have drawn the distinction between the two forms of contract, which you need to do to travel through the maze to advise the OP on their legal rights.

If you look at the Swift warranty it makes it clear that it is nothing to do with the dealer as it states "Dealers are not agents of Swift Group Limited, the manufacturer of Swift Group caravans, and have absolutely no authority to bind the manufacturer by any express or implied undertaking or representation".

TS have set out to you the practical way these things are dealt with, I have merely gone behind the scenes to describe how the legals back it all up.

Phil

Maybe this , from a Trading Standards Office, will assist you Surfer01 in appreciating that a warranty is a separate contract with the buyer. Your TS will have given you advice on the SOGA route as

From another Trading Standards site

What legal protection do I get with warranties and guarantees?

As both are contracts, warranties and guarantees give you the right to make a legal claim against the person issuing them (guarantees are considered contracts under the Sale and Supply of Goods to Consumers Regulations 2002). This means that if the manufacturer refuses to honour the warranty or guarantee, you can take them to court to claim damages. For example, if the company that issued the warranty will not carry out a repair within a reasonable time when the guarantee says it will, you could sue for the cost of employing someone else to put the problem right.

However, it is important to remember that both warranties and guarantees are in addition to your statutory rights under either the Sale of Goods Act 1979 (as amended) or the Supply of Goods and Services Act 1982 (as amended).  

Phil

Maybe also raise it on the swift owners forum. They have swift employees there who take in issues and help swift owners get a resolution. Worth a try?

HI GUYS

Many thanks for all the advice - a few more facts-

I noticed the floor opn 17th sept when the van was delivered, I informed Discover immediately and they told me to use it for the 6 wks at the site I had paid for. whilst using it more lines appearded in the floor and 14 more faults were noted. They picked up the van on 1st Nov and took it back as agreed. I gave them a letter noting all the faults and stating a rejection under the sale of goods act. they told me the van was going back to Swift for inspection.  I was then asked to go to Swift to inspect the vehicle upon which I found some of the repairs had been botchedly repaired and the guy there actually said it was a disgrace! I have since had numerous letters to discover who have basically said they are waiting for me to pick the vehicle up and completely ignore what I am saying even to the point I have said I am seeking further legal advice they are not bothered. I have now been in touch with the finance company Black Horse and they are negotiating with Discover but I know some of the letters corresponding have played down the fault, I wanted to get an Independent inspection done on the van before it went to Swift but they wouldnt let me know when it was going I was only told wheb the fault had been fixed to the floor.  They said it has a new floor now and the fault was the joints had been put over one another rather than staggered which explained why the van felt like it was in two halves and all the furniture was coming apart with gaps appearing in the tv pillar near the fixed bed then moving back together if we walked in the middle of the van.  the awning rail had a gap in and the water ran down the inside plus many other bits, I stated that it was of unsatisfactory quality and just kept being told that they must have the opportunity to repair it.  I am concerned at their lack of interest and I only bought the van from them as I couldnt get it from any dealer at that time,  I was assured their customer service was totally different now and I was assured any problems would be dealt with but hey what a surprise that manager has now left.  I did post on Swift website and they contacted me immediately but again the contract is with the dealer not them and they arent bothered that it is also their reputation that gets tarnished.  Discover just keep saying the van has been repaired and any faults in the future will be covered by the manufacturers warranty, they are saying the faults did not affect my enjoyment of the van and they even rang my caravan park to see when it opened and closed as I was saying I had loss of use as they have had the van 3 months I had it 6 weeks. well I hope I can get some legal help from somewhere I am not covered on my home insurance but it looks like this is going to go to court to be resolved .

What a sorry tale.

You say, "I have now been in touch with the finance company Black Horse and they are negotiating with Discover". Now that sounds to me like you have purchased the van under a Hire Purchase arrangement. If that is correct then your contract is actually with that company and not Discover. If the money from Black Horse was a personal loan then your contract is with Discover. HP or personal loan - is dealt with differently in law.

You wanted to know your legal rights. At this stage I will stick with the HP route. If you do not have HP please advise.

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 Discover to put the van right.

s11 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. From your description the Hire Purchase company is in breach of contract. However, and this could be crucial, that term is not implied into your contract if the defect is specifically drawn to your attention before the Hire Purchase agreement is made. So, timing is quite crucial. When did you sign the hire purchase agreement, before or after or at the time of delivery of the van?

Dependent upon the timing issue, you can reject the caravan if it is as bad as you describe. Your HP agreement ends and Black Horse take issue with Discover 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 relevant defect.

Slight problem area may be that once you knew of the defect you still took the van away. So, your right to reject may be prejudiced by the fact that you took the van away and agreed to have the problem put right. If you can argue that by taking the van away, subject to their agreement to remedy the faults, you were giving a conditional affirmation of the HP contract, (giving them the chance to remedy the faults before you made a final deciaion on rejection) you may be deemed to have not lost the right to reject. Another problem though, is that your discussions were with Discover and not the HP company. Hopefully you told the HP company straight away of the problems.

Courts tend to side with hirers in these cases.

Until you provide further information I will leave it at that. As you can see it gets awfully complicated if you take out HP

Phil

hi phil

thats great info the van was on HP and yes I informed them of the faults immediately I could not return the vehicle ( I dont tow I had to wait for Discover to pick up the vehicle)  they knew this when they sold it to me I put it on a seasonal pitch and now they are saying I have not used it for its purpose .  I can also involve the ombudsman as I have correspondence documented in letters to Black Horse dating back to when I informed them.  The contract was signed at Discover before the caravan was delivered and the fault was hidden under the carpet but I took them up because I didnt like the colour this was an hour after delivery .  I will push the finance company now with this information. 

Clever begger...you seem to be doing everything just right!!

Apologies its not s11 its s10. Fingers on the keyboard going faster than the brain!!!! Then there is the Supply of Goods and Services Act on your side.

If you wish to reject the van then, on the facts you have given, you should write to the HP company and set out the full list of defects. You should state that in view of the dealers promise to remedy the defects known at the time of delivery you agreed that they would try to remedy the defects but that they have failed to do so. State that the caravan is clearly of unsatisfactory quality and thus you have a statutory right to reject the van. It follows from that the HP agreement will be terminated and that they should refund all payments made to date.

As a cautionary note, whilst you say that you cannot afford to pay for legal advice, your sorry situation is complex, I think you should sit down with a lawyer and talk through all of the facts so that you know that nothing has occurred that may have prejudiced your position. You can never get all the facts down in a thread. For everyone else....Never buy under HP...get a personal loan as the legals are so much easier to deal with.

If you get no joy from the HP company then advise them that you will ask the Financial Ombudsman Servcie to investigate. I reckon that they will decide in your favour on the facts you have given in this thread. Just for your peace of mind here is a report of a decision of the Ombudsman back in 2001 in a similar case he was asked to investigate.....

" Mr H bought a new caravan by hire purchase. With this type of arrangement, until the consumer has made their final payment, the vehicle does not belong to them but to their finance provider.

On the day the caravan was delivered to him, Mr H was concerned to find a number of faults in the interior fittings and parts of the décor. He contacted the dealer from whom he had bought the caravan and complained that none of these faults should have been present in a brand-new vehicle – particularly as it had been made to order.

The dealer arranged for three of the faults to be remedied almost immediately. However, eight months later Mr H was still waiting for the remaining repairs to be done. At that stage he contacted his finance provider and said he wished to reject the caravan on the grounds that it had been ‘unfit for purpose’ when it was sold.

The finance provider told Mr H that it would contact the dealer to ensure the outstanding repairs were completed. Several attempts were then made to carry out the repairs but the remedial work was badly done and in a couple of instances it caused additional problems.

Mr H again complained to the finance provider, repeating his request to reject the caravan. The finance provider said it could not accept this. It said that, in its opinion, the caravan was ‘of a satisfactory quality’. The faults were cosmetic – not structural – and they had all been remedied except for the fitting of new flooring, which would be undertaken shortly.

Mr H then referred his complaint to us.

complaint upheld
Mr H told us that a number of repairs were still outstanding. He said the flooring had not yet been replaced, the kitchen work-surface trim remained loose, the seating was not bolted together as it should have been and a bracket was missing from the corner seating area.

On the basis of the evidence we saw, we concluded that the finance provider had failed to ensure the caravan was of a satisfactory quality when it was supplied. We said that the fact that most of the faults were not structural did not prevent Mr H from exercising his right to reject the caravan.

We noted that Mr H had acted reasonably in agreeing to allow time for the repairs to be carried out, rather than rejecting the caravan outright. And we accepted that the finance provider had not initially been aware of the faults, as Mr H had contacted the dealer direct. But we said that once the finance provider became aware of the problem, it should have ensured that matters were put right promptly.

We upheld the complaint and told the finance provider to allow Mr H to reject the caravan. Mr H had asked for a refund of all his payments. We did not agree to this, as we had seen evidence that he had been able to make use of the caravan – and had sub-let it on a number of occasions. We said the finance provider should release him from the finance agreement and return his deposit of £17,000, plus interest."

Ring any bells? A resolution may take some time...be patient.

Phil