second hand car repair - who decides if its repaired to a reasonable standard

leckydave

Hi,

I purhased a second hand car last week (year 2000, 55k miles)- the car leaked oil, and was subsequenctly driven with low oil (the low loil indicator never came on, but there was no oil on the dipstick). There was some damage done to the car which the dealer is in the process of repairing.

Ideally I would like a full refund, but it appears that the dealer is only obliged to offer to repair. The difficulty is in deciding who determines whether the engine is repaired to a reasonable level - I have no documentation to state the condition of the engine before the damage. It seems unlikely that it would suffice for me to say "the engine doesn't sound right" - but if a mechanic is brought in to check the engine (very expensive to strip an engine) he may have no way of veryfying any damage was caused by the recent drive on low oil.

Also, does the onus lie with me or the dealer to determine if the engine is suitably repaired.

dermot_sheehan

section 14 Sale of Goods Act 1893 http://www.attorneygeneral.ie/slru/Restatement_Sale%20_of_Goods_Acts_1893_and_Part%20II_of_1980%20.pdf
:

(1) Subject to the provisions of this Act and of any statute in that behalf, there is no
implied condition or warranty as to the quality or fitness for any particular purpose of
goods supplied under a contract of sale.
(2) Where the seller sells goods in the course of a business there is an implied condition
that the goods supplied under the contract are of merchantable quality, except that there
is no such condition—
(a) as regards defects specifically drawn to the buyer’s attention before the contract
is made, or
(b) if the buyer examines the goods before the contract is made, as regards defects
which that examination ought to have revealed.
(3) Goods are of merchantable quality if they are as fit for the purpose or purposes for
which goods of that kind are commonly bought and as durable as it is reasonable to expect
having regard to any description applied to them, the price (if relevant) and all the other
relevant circumstances, and any reference in this Act to unmerchantable goods shall be
construed accordingly.
(4) Where the seller sells goods in the course of a business and the buyer, expressly or
by implication, makes known to the seller any particular purpose for which the goods are
being bought, there is an implied condition that the goods supplied under the contract are
reasonably fit for that purpose, whether or not that is a purpose for which such goods are
commonly supplied, except where the circumstances show that the buyer does not rely, or
that it is unreasonable for him to rely, on the seller’s skill or judgement.
(5) An implied condition or warranty as to quality or fitness for a particular purpose
may be annexed to a contract of sale by usage.
(6) The foregoing provisions of this section apply to a sale by a person who in the
course of a business is acting as agent for another as they apply to a sale by a principal in
the course of a business, except where that other is not selling in the course of a business
and either the buyer knows that fact or reasonable steps are taken to bring it to the notice
of the buyer before the contract is made.

Section 53

(1) Subject to subsection (2), where there is a breach of warranty by the seller, or where
the buyer elects, or is compelled, to treat any breach of a condition on the part of the
seller as a breach of warranty, the buyer is not by reason only of such breach of warranty
entitled to reject the goods, but he may—
(a) set up against the seller the breach of warranty in diminution or extinction of the
price, or
(b) maintain an action against the seller for damages for the breach of warranty.
(2) Where—
(a) the buyer deals as consumer and there is a breach of a condition by the seller
which, but for this subsection, the buyer would be compelled to treat as a breach
of warranty, and
(b) the buyer, promptly upon discovering the breach, makes a request to the seller
that he either remedy the breach or replace any goods which are not in
conformity with the condition,
then, if the seller refuses to comply with the request or fails to do so within a reasonable
time, the buyer is entitled:
(i) to reject the goods and repudiate the contract, or
(ii) to have the defect constituting the breach remedied elsewhere and to maintain an
action against the seller for the cost thereby incurred by him.

(3) The onus of proving that the buyer acted with promptness under subsection (2)
shall lie on him.
(4) The measure of damages for breach of warranty is the estimated loss directly and
naturally resulting, in the ordinary course of events, from the breach of warranty.
(5) In the case of breach of warranty of quality such loss is prima facie the difference
between the value of the goods at the time of delivery to the buyer and the value they
would have had if they had answered to the warranty.
(6) The fact that the buyer has set up the breach of warranty in diminution or extinction
of the price or that the seller has replaced goods or remedied a breach does not of itself
prevent the buyer from maintaining an action for the same breach of warranty if he has
suffered further damage.

So basically the vendor has to remedy the breach that made the car "unmerchantable", within a reasonable period of time, otherwise you can repudiate the contract, or get the goods repaired elsewhere and sue him for the costs. The statute doesn't appear to mention on who the burden is in proving that the goods are merchantable, it seems to imply its an objectively ascertianable fact (act was passed before complex machines like cars were routinely traded)