Private sales with members of the public: Your Rights?

[bowzaa]

Hey guys,
Just looking for an answer from those doing law at uni/works in the field or anyone that has been in this position.
Purchased something off a member of the general community. Was faulty on two counts:
1) Part of the item was worn, rendering it bin material. Seller says he never used said product after buying 2nd hand off someone else. Didn't state anywhere written the condition of said item, verbally in conversation said "they'd be fine". Now i think i just have to wear this, as he has advertised to the best of his knowledge/hasn't specifically said they are good.
2) Other part of item was advertised as being for a particular model, yet have now learnt that it was from a non superior model. Am not happy on this part, i can kind of understand the worn out part, but selling me something that is not what you say it is? Have got written proof that it was advertised as said specification, and can prove it is not.

Am looking for confirmation of where i stand on this. Can i take it to something like the small claims tribunal/consumer affairs if need be? I would simply just like a refund for said product and will return all goods to the buyer at my own travel expense. Having also paid a substantial amount of money for said package (vicinity of $1k), it's not something i really want to write off as a "learn from this" experience.
The seller is a nice guy, and i really don't want to be a c%$t, but at the end of the day i want my money/or goods i expected to have received.
The seller has communicated with me so far, but wishes to contact who he bought the goods off to pass on some of the blame. I see the only issue being between myself and the seller i purchased the goods off, yes? I am trying to work out when i can get pushy if need be and on what grounds, as i have approx 2 weeks to get this sorted before they are all required.
Any help would be awesome guys/girls.
Cheers
Matt

{EDIT} Please note this is not a member off this forum at all.

 

[leitch]

Car parts, I presume?

First port of call is definitely the seller himself. If you can just ham it out between you so that you get your money back and he gets his bits back, that'd be obviously the ideal situation - you lose nothing, and he has the opportunity to re-sell the items alongside more accurate descriptions (albeit maybe for a lesser price).

There's definitely an issue of misrepresentation in regards to the item listed as one thing that was really something else - the degree to which that applies depends on whether he knew the part to not be as advertised or not. I assume that you bought these of ebay or similar without physically examining them yourself?

In regards to the worn part, you could likely argue that you proceeded with the purchase given his assurance that the part would be fit for use, presuming that he actually knew that to be fact. The fact that he didn't say "I don't actually know if they're usable or not" is more important than the fact that he said "they'll be fine" rather than "I guarantee they are fit for use". In fact, the fact that he bought them second hand himself and then never used them makes me think he probably knew they weren't useable and was trying to flog them off.

Basically, if it's eBay in particular, I'm pretty sure that when selling, part of the terms and conditions you agree to states something to the effect that you have accurately described the listed item and that it is what you say it is. Hence, if it's not what you say it is/in the condition you say it is, you're in the wrong.

I guess you'd have standing in terms of a small claims tribunal or some kind of contractual procedure (looking to Daver for confirmation, here - it's been 2 years since I did contracts), and courts/tribunals are likely to look to make it good by you to stop you being screwed out of money, but realistically you want to avoid that sort of thing in the interests of a) time and b) not spending more on fees than you would just buying new parts.Your best bet is just to explain to him that he has misled you in the sale and that you have a right as a purchaser to know the full extent of the condition of the item and to know that it is in fact what it is advertised to be, and if he isn't prepared to take the item back and refund your money, then he needs to at least refund you for the part that is useless and then refund you the difference between what you paid for the second item and what you can re-sell it for.

 

[bowzaa]

Excellent post letich, many thanks!
Your right, car parts it was.
Not off ebay, and i did pick them up myself, however i trusted the seller to be selling me a legit set of gear, and it would be a bit hard to spot the difference between what i got and what i was being sold (in hindsight i can do it now, but i didn't expect to have to do this, and has taken a few hours of research/phone calls to find this.) Also picking stuff up at night makes it hard, but thats no excuse not to carry a torch on my behalf.
Am definately aiming to keep away from any sort of legal action, i was just curious to see what footings i had as they are required for use in 2 weeks, and if he isn't willing to give a refund i would like to chase it out of him so i can purchase goods elsewhere.
The other question i had that, is genuine ignorance a defence? In that his initial response was that he didn't know this to be the case, and if this is genuine(who knows if it is, and i cant prove either way) has he fulfilled all his dues by selling the item "to the best of his knowledge", or does this mentality simply mean squat?

 

[Oliver.]

The other question i had that, is genuine ignorance a defence? In that his initial response was that he didn't know this to be the case, and if this is genuine(who knows if it is, and i cant prove either way) has he fulfilled all his dues by selling the item "to the best of his knowledge", or does this mentality simply mean squat?

(might get a bit wierd here, but it might help you get the idea)

Genuine ignorance is usually a defence, unless a reasonable person under the circumstances would have gone to lengths to determine whether or not the product was fit for purpose.

In other words, if he bought the product off someone else, intending to use or sell it, a 'reasonable person' in his circumstances should have gone to lengths to make sure that what he was buying was in the right condition so that he could use it for his intended purpose. (whether that was fitting it or for resale)

He would likely to be held at fault, not the original seller. (unless he could then subsequently prove that the originally seller misled or deceived him when selling it to him)

Sorry if that sounds a bit jumbled, I'm neck deep in the trade practices act right now for a paper!

 

[bowzaa]

Olly thanks for that! I get what you mean.
I am under the impression that if i do have a case, i can simply take it up with him, then if he likewise has been sold something falsely he can take it up with whoever he bought it off, rather than me having to chase the original seller.
Fair?

 

[leitch]

And again, following from Olly's post which has refreshed my somewhat depleted memory banks a little, it's worth re-iterating that in circumstances like these, courts/tribunals are aiming to essentially restore the balance, so are likely to find him at fault rather than leave you $1000 out of pocket with parts you cannot use. As I alluded to above, whether that's negligent misrepresentation of the product (i.e. he didn't know it wasn't the right part but ought to have known/a "reasonable" person would/ought to have known), or fraudulent misrepresentation (i.e. he did know and lied to get more money from the sale) is more the question here than whether he's at fault.

 

[leitch]

Olly thanks for that! I get what you mean.
I am under the impression that if i do have a case, i can simply take it up with him, then if he likewise has been sold something falsely he can take it up with whoever he bought it off, rather than me having to chase the original seller.
Fair?

In reality, that's fair. What you need to be doing is giving him a call and being nice and assertive and just say that you've spoken to a family friend who is a solicitor who says that he is in the wrong in regards to selling you parts that were not fit for use or not the part as advertised, and that in the interests of avoiding any costly or time consuming legal process you'd like for him to just give you your money back, and you're happy to deliver the parts back to him. He's not about to call your bluff, I'm sure.

Be reasonable, but be firm. If he says that he didn't know, just make it clear to him that he should have known and that you relied on the fact that he did know, and thus if he was deceived by the original seller then that's his problem not yours, and can you please have your money back now?

If he's a reasonably guy, he'll help you out.