Dodgy Dealer Legal Question
 

Hi Everyone

My older brother who who is ‘vulnerable’ and unemployable since suffering PTSD in the 70’s came into some unexpected money and tried to buy a bike from a dealer in the Midlands, although he lives in Exeter.

He chose the bike and gave the dealers a £200 deposit by phone banking. A month later he gave them another £900 but then his money stream dried up.
He told the dealers that he’d pay over the next few months and was told that he had five days to pay or lose the sale.

My brother couldn’t pay so he asked for his money back. The salesman said that he could have the £900 back but the deposit was non-refundable but then the manager yelled into the phone that the whole amount was non-refundable and he’d get nothing back.

Can anyone advise me on where he stands legally? Can he get all or part of his money back?
Should we also look at the bank for letting him toss out such large amounts without checking?

Thanks guys, this brother has nothing at all left.

Ring up Citizens Advice. They’re really helpful and they’ll tell you exactly where you stand legally. When I was in dispute with a large national DIY co over a similarly arbitrary decision they sent me a stock letter to kick off legal redress.

What's the contract say ??? Without that you are going to struggle............agree citizens advice is the way forward , but they will require the aforementioned as everything you have said is effectively third hand . Negotiation will b the way forward......

I would also keep the banks on side as they can often retrieve funds from an account if the payment is disputed. First Direct have done this twice for me over the years but you need a paper trail sk to speak for them to act on your behalf .

On the face of it the dealer has £1100 of your money and you have nothing - no bike or anything else. Is that right? Did you sign a contact of any sort - sales or finance or anything else? If so then the terms of the contract may well govern where the money ends up, but a bad tempered rant in the background isn’t going to hold much water legally.

This ^^^. Ignore the sales manager's rant, since it has nothing to do with any legalities. Look into the written terms under which money was given; if there were no written terms, that's an important lesson for your brother (and, perhaps, you as well). In such a case, whatever is customarily done might have some bearing, but that's mere speculation on my part.

I'm not sure what "vulnerable" means in the U.K., but here in the States there are legal definitions having to do with someone's ability to fend for themselves, including by entering into contractual arrangements. Many adults, having been deemed incompetent, can't do this--instead, someone else is able to do things on their behalf, whether another person or a trustee appointed for the purpose. In some cases it's a crime to take financial advantage of such a person given their vulnerable state, but this generally applies when that state has been specifically defined by a judge in advance--not when you or I believe it to be true.

As I say this, I'm aware that the laws governing such interactions vary widely in the US from state to state, and certainly from one country to the next. If this were my brother, I'd arrange to talk with someone with knowledge of the local laws--usually a social worker in a public agency. If my brother were deemed not competent to manage his own financial affairs, I'd be asking about entities which could do this for him. In that case, he might no longer have direct access to bank funds, but getting to that point might involve a lot of work and annoying bureaucracy.

Hope that's helpful, but if I'm missing the boat please just ignore part or all.

Mark

It's similar. Probably unlikely a court will have declared anyone incompetent, we save that tag for politicians, but you have a duty not to rip off people you should be able to tell aren't totally with it.

Coming at this from the other side, I'm usually the one stuck with goods, consider the following.

A paper contract is what you need. All is not lost if you don't have one though, just ask for a copy of their terms and conditions "for use when seeking advice". You can still dispute a paper contract though.

Negotiate. Ranting, wailing, threats, just shows the shiny suit double glazing sales types their bullying had an effect. They enjoy it and it drives what can be a psychotic need to win. Present them a deal they can "win". Just ask what they want in a calm, detailed way. Do not pretend to be anything you aren't, we salesman love a "not fit for purpose" line that the interweb claims is in the Sale of Goods Act 1884 to prove the whiney PITA customer doesn't have a Scooby.

Any contract, verbal or not has to be reasonable, legal, agreed. You are going to dispute it's reasonable. What work did they do for £1100? A bit of admin, bank fees maybe?. You are going to dispute that your brother agreed to the non-refundable part, at least on the second payment because he'd be stupid to pay two deposits when the first had secured the bike. Ask for details of what work they did for this money, they are claiming you paid for a service, so what was it?

Ask for contact details of the company directors, owners, who ever is higher in their chain of command. Ask who their lawyers are.

Tell them you are considering completing the contract and ask about delivery etc. Maybe they'd like to breach the contract because they've already sold the bike to another customer?

If lawyers get involved they will be the only winners. It's better to look like the customer who'll go away if he gets most of his money back, but does have the funds to bust the dealer if sufficiently riled.

Andy

Here you go (two seconds with Google), Cancelling Goods or Services

Some excellent advice in the previous posts and as mentioned, stay calm and 'reasonable', present the facts without emotion, keep in mind you might want your correspondence to be read by a judge, or to be sent to a local newspaper.

Off topic, but I rejected and secured a full refund on a vehicle as "not fit for purpose" and not of "satisfactory quality" under the Sales of Goods Act 1979

Well, I did phone the manager and very reasonably explained the situation as we saw it.

He doesn’t want to give it back but said he’d think about it over the weekend and get back to me.

Thanks guys,

Lots of useful stuff there. I’ve taken notes and await the manager’s call back.

As for the contract, my brother appears to have been buying the bike over the phone from a dealer half the country away. No idea why he’d do that but he’s a brain damaged ex army pensioner.

I’ll chase up the CAB and his bank next week and speak reasonably with the dealer when he calls.

Thanks again

Dealer may not want to give it back.......but if u go down the civil route the dealership will have to evidence what its cost them . Also I can't believe they took a deposit with no contract enabled........does he have email ? If its word of mouth then yes there is a contract in place but I wouldn't want to b that dealer when u give him 14 days notice of civil proceedings , asking for the majority of the cash back and your legal expenses etc etc . I say that as someone who has been in civil court as a witness on more occasions then I care to count .
Be reasonable make notes of all calls and chats showing times etc , lots of evidence is what u want.

Lucky.

SoGA '79 is no more, replaced by the Consumer Rights Act 2015.

A vehicle is not consumer goods. I forget details but some court decided. Doesn't change the principles of contracts, only how the professionals will deal with it once raised from their crypt.

"Fit for purpose" is a trap. The engineers at the manufacturers get to define said purpose, they have piles of documents that say so. Things like "do not jet wash" get transferred to owners manuals at their lawyers suggestion.

"Saleable/merchantable quality" is better, it was in SoGA 1979. That really defines purpose at the basic level, you can't sell a warm fridge or cold oven or dirty washing machine because the basics are just defined in English not product specs.

Andy

This was 2011/2012.

Not lucky just correct application of the applicable legislation at the time. The dealers didn't count on pissing off someone who's job was interpretation and application of legislation.

Contract law was a particular specialty and when a particular use was requested prior to the sale, it becomes part of the contract between the seller and the purchaser. Further strengthen when the salesman stated in front of witnesses that the vehicle would be more than suitable for the specified purpose.

Vehicles still fall within the scope of the Consumer Rights Act but not if its a private sale.

The devil I'm afraid will b in the detail.........you may still loose the lot , it depends on the conditions of said contract . Hence the advice from everyone to b polite and flexible..........I'm assuming its a second hand bike ? More scope for an outcome in ur favour .
Keep us all posted..........

As far as I’m aware there was no written contract. The shop in question is in the Midlands and my brother Martyn is in a village in Devon.

He lost his driving license due to epilepsy which resulted from brain damage caused by a RTA many years ago. He has no credit rating, work history or chance of improving his lot.

Whether or not there's a contract is largely immaterial, take a look at the link I posted earlier. I think it is not unreasonable that they keep the original £200 deposit, but they don't have a snowflake in hell's chance of arguing that they have incurred £1100 of losses.

This won't look good for the dealer if it goes to County Court and the local papers (not to mention MCN etc) get to hear of this.

Given the circumstances, if I was the dealer I would be refunding the whole lot. So it wouldn't hurt to see whether Katie Morley would take up the case for you.

Thanks Tim,

More good advice gratefully received.

I phoned the top guy last week, explained my brother’s condition very calmly and reasonably and asked them to refund the money.
He said he wasn’t happy but would consider it and call me back. That hasn’t happened but I’m constructing my letter of complaint to him, that I need to send before taking it up wider and further.

I suspect that he hopes I’ll just slink away but that isn’t going to happen.

He almost certainly hopes you'll slink away! Most people do, even where substantial sums are involved.

I usually give one (1) reminder call to people who've promised but not delivered. It's just me, but that's what I'd do before writing "the letter."

Standard operating procedure: when people make vague promises, I ask when to expect to hear from them about progress. The idea is to get them to commit to a specific action by a specific date.

Standard procedure which I usually intend, but fail to accomplish: an emailed memo stating "This is my understanding of our phone conversation [date and time]," followed by a summary which includes that specific action and time by which it will be done.

And: whenever lawyers and courts might become involved, always document everything in writing--times of calls, first and last names, specific content, etc.

Hope that's helpful.

Mark

I have worked in many motorcycle shops. Maybe I can help.

So you paid a shop £1100 with no or sales reciept, contracts signed etc ?

As it was done over the phone, I assume you didn't sign anything. Are there any emails exchanged with details or terms agreed ?

Until you come back with what paperwork, contracts or reciepts you have, it's unlikely anyone can give you any advice on what to do next !

If you have no paperwork, it means the shop has no paperwork either. They will just have a deposit in their account.

You could both literally have two different stories.

Is the bike still listed for sale on their site ? If yes, then you could argue they have never removed it from sale.

If they have removed it from sale then they could argue they could have sold it elsewhere in this time and they could have incurred costs. Taxing it, servicing it, labour time.... etc

I've never known a situation where the shop has been able to keep a payment for a sale which has collapsed. But they may try hard to keep the deposit. I would contest that if they never removed it from sale and no work was undertaken.

I would just politely tell them that you will use a Small Claims court to work out the dispute.

If there is no paperwork or contracts signed by yourself you could just say that they sold you the bike for £1100 and they haven't delivered.

And they could say whatever they wanted.

The court would likely give you your money back and split the costs between you both. But I think the shop will refund you before that happens.


My personal opinion from a someone who buys and sells bikes and runs a small business is this.

If you ask to buy a bike from me and we agree a price and deal, I would ask a deposit for me to remove that bike from sale elsewhere. I would stop advertising it and I would likely spend money and time preparing it for you.

If you change you mind, then it is YOU that is backing out of the deal. And you have cost me money and time in the process.

That's what a deposit is for. To protect against timewasters and protect against costs incuured by the seller to process the sale.

I won't give anyone a deposit back. Otherwise all i'd do is spend my day dealing with timewasters and dreamers and working for nothing.


First..

What paperwork do you have ? Reciepts, sales orders ? Emails ??


Another thing to consider is the distance selling act. You usually have 14 days to cancel anything bought over the phone or online.

When I take a deposit I send a receipt/ order ack saying what it is:

Received from Mr Customer, £500 non-refundable payment for the removal from sale and preparation of Hondasuki AB-125 XX05ABC. This amount to be deducted from the total amount of £3500 when the sale is concluded. Sale to be concluded by 31.02.23.

Time wasters, fantacists and nutters make this necessary, which is a bit sad, but that's the modern world.

If this seller had such an e-mail you would have expected them to forward a copy PDQ. Your money resting in his bank account is still your money.

Have they done anything to check it's OK for one brother to act for another? Data protection is a nice little grenade to play catch with during such negotiations, but save that one for later. Slackness on that makes them look clueless on everything else.

I would certainly follow up and ask when they might reply, given you need to decide what to do next. A letter by registered post is then old school but should concentrate minds.

As the month end is past you may find salesmen of the on commission type more amenable.

Andy

Let’s remember that I didn’t send anything to anybody.

My brother sent the money and I’ve written out seven specific questions for him, asking for seven answers. I got back a rambling sentence that missed all of the exact questions. This is going to take a while.

Obviously a normal buyer would have documentation and receipts but clearing up for people with mental problems is never easy.

One of you mentioned nutters and time wasters and that is exactly what these dealers think. They’re angry that this time wasting nutter is buggering them around. But he was doing his best. It’ his condition that trips up his, to him, wonderful plans.

Another thing I've learned (and often fail at in practice) is that the average person has a VERY limited attention span for written material, so it's more effective to refrain from asking "seven specific questions" if possible. Best bet would be to make one point (brother disabled, paid X amount, wants refund), and ask when he can expect a refund check, and maybe if you are communicating with the correct person. Complex letters are good for establishing a paper trail for later on, but not usually good at eliciting useful responses.

Two other things I've had remarkably good luck with: writing to the executives rather than the flunkies, and posting on a company's major social media page. I've done both mostly with huge corporations, so not sure how this applies to your situation, but it probably won't hurt. Note that I do not threaten or bluster or express outrage--I just state the situation and what I need from them. This has worked well with, for example, Air Canada, T-Mobile, Scotia Bank, and one large insurance company.

As usual, if this isn't helpful please ignore completely.

Mark

Worth noting that the UK Small Claims courts will expect you to have done everything possible to resolve the matter before bringing it to court. So make sure you have done, and that you have documented it. As Mark says, dates of correspondence/calls, persons spoken to, responses, etc.

The chances are the manager is an employee, whose bonus depends on sales/profits, and he's seeing this as a big chunk out of something he already 'banked'. The Directors of the business (try Companies House) may take a different view on their good name being dragged through the courts, MCN, social media etc for sharp practice and screwing a disabled person. Can you contact them direct, go over his head?

With no written contract it's your word against theirs, you could claim the initial deposit was non refundable and they agreed verbally that the second sum would be. They could disagree but they have no proof. A court would probably aim to steer a fairly neutral course and I'd be surprised if they didn't agree to a compromise like that.

Don't threaten though, unless cajoling completely fails, since that's the nuclear option and may make them dig their heels in.

I agree with the above 2 posters about making sure you approach the organ grinder directly, rather than some random monkey.

I had success with British Airways when BA Düsseldorf, Germany couldn't find my lost specialist luggage quickly enough and ASDA in the UK when one of their delivery drivers snapped off the wing mirror of my van and their Morley, West Yorkshire depot manager was giving me the run around. Chief executives Alex Cruz (BA) and Andy Clarke (ASDA) were happy to help :)

Of course I was polite, but assertive. Giving them timelines with exact times/dates/summaries of my prior dealings with their minions as well as highlighting possible consequences if they continued to be obstructive might have helped them to focus on the best way to get me off their case.

PS. Also once threatened HBOS (Halifax Bank of Scotland) with a winding up order when they lost money I was transferring from the UK to the US (to buy a motorcycle in California ;) ). The logic was that they had lost the money (£3000), so if they couldn't return it, they must be bankrupt... By that stage, politeness was in short supply, but I didn't swear, just used cutting sarcasm and ridicule. My money was returned, with interest and at a 10% profit because of fluctuations in the £/USD exchange rate :D I no longer bank with HBOS.

Thanks fellas,

I’ve applied most of the suggestions on here and the Managing Director got back to me.

He agreed to repay the majority and we’re just just having a little back and forth now on what deductions are acceptable for his ‘costs’.

Thanks for all the great advice. I’ll let you know how things work out.

The absolutely most he can retain is the deposit.

Hi guys,

The manager came back yesterday and said he wanted to keep £300 of the £1,200 my brother paid for expenses.

We went back and forth and he came down to keeping £200 and wouldn’t budge.

I relayed that to my brother who says he’ll fight it. He says he wasn’t told about any non-refundable deposit.

I suggested he take the grand and chalk it up to experience as fighting it would cost more than £200 and the verdict could go either way.

Thanks everyone. Very good advice all round.