Bought a van, VW confirm it has been clocked

alltacht

Hi everyone,

I'm hoping to get a little bit of advice. I bought a Volkswagen Transporter on Sunday from a guy on DoneDeal for €4500. It was advertised as having 163,000km but the next day I spotted a sticker saying "Next service due at 269,000km or April 2012". I brought it to Volkswagen who confirmed that there was 359,000km on it – a discrepancy of nearly 200,000km. The van also needs ~€4000 of work done in order to be roadworthy, when it was advertised and sold to me as perfect working order. In particular, the gearbox is shagged and could lock the wheels at any point – potentially causing a nasty accident.

The seller is known to the guards, so he won't disappear into thin air despite not using the same phone number any more. I also know where he lives, but the guards are hesitant/unable to release any information about him because of the Data Protection Act.

I guess what I'm asking is – what can I do? Is there a channel for recourse here? I have:

Screenshots of the ad
A receipt from the seller
Proof of the mileage as of August 2014 (359,000km)
Text messages exchanged

So far I haven't been able to contact him to tell him I want to bring the van back (phone switched off). Should that be my first priority or should I talk to a solicitor? Visiting and confronting him will involve a 3 hour drive each way so isn't as easy as a phone call.

As a private buyer I understand I don't have much ground to stand on, but is there some law about misrepresentation of goods? Has he actually broken the law? Would a small claims court help me? Would a solicitor's letter have any effect on him? One problem is that the van wasn't actually in his name... desperate, I know.

Thanks in advance for any ideas!

Alex

MarkAnthony

There are various pieces of legislation and common law rules that might be of assistance to you. Of course none of it is any use to you unless you're willing to go to court and there is someway to enforce any judgement you may obtain.

I'm almost certain the guards are going to be of very little help, this seems to me to be a civil rather than criminal issue; and one I might add OP is as old as the internal combustion engine itself - while I have sympathy for you - how did you fall for this one?

MarkAnthony

13.—(1) In this section “motor vehicle” means a vehicle intended or adapted for propulsion by mechanical means, including—

(a) a bicycle or tricycle with an attachment for propelling it by mechanical power, and

(b) a vehicle the means of propulsion of which is electrical or partly electrical and partly mechanical.

(2) Without prejudice to any other condition or warranty, in every contract for the sale of a motor vehicle (except a contract in which the buyer is a person whose business it is to deal in motor vehicles) there is an implied condition that at the time of delivery of the vehicle under the contract it is free from any defect which would render it a danger to the public, including persons travelling in the vehicle.

(3) Subsection (2) of this section shall not apply where—

(a) it is agreed between the seller and the buyer that the vehicle is not intended for use in the condition in which it is to be delivered to the buyer under the contract, and

(b) a document consisting of a statement to that effect is signed by or on behalf of the seller and the buyer and given to the buyer prior to or at the time of such delivery, and

(c) it is shown that the agreement referred to in paragraph (a) is fair and reasonable.

(4) Save in a case in which the implied condition as to freedom from defects referred to in subsection (2) is either not incorporated in the contract or has been effectively excluded from the contract pursuant to that subsection, in the case of every sale of a motor vehicle by a person whose business it is to deal in motor vehicles a certificate in writing in such form as the Minister may by regulations prescribe shall be given to the buyer by or on behalf of the seller to the effect that the vehicle is, at the time of delivery, free from any defect which would render it a danger to the public, including persons travelling in the vehicle.

(5) Where an action is brought for breach of the implied condition referred to in subsection (2) by reason of a specific defect in a motor vehicle and a certificate complying with the requirements of this section is not proved to have been given, it shall be presumed unless the contrary is proved that the proven defect existed at the time of delivery.

(6) Regulations under subsection (4) may apply to motor vehicles generally or to motor vehicles of a particular class or description (defined in such manner and by reference to such things as the Minister thinks proper) and different forms of certificate may be prescribed for different classes or descriptions of vehicles.

(7) A person using a motor vehicle with the consent of the buyer of the vehicle who suffers loss as the result of a breach of the condition implied by subsection (2) in the contract of sale may maintain an action for damages against the seller in respect of the breach as if he were the buyer.

(8) The Statute of Limitations, 1957 , is hereby amended—

(I) by the insertion in section 11 (2) of the following paragraph—

“(d) An action for damages under section 13 (7) of the Sale of Goods and Supply of Services Act, 1980, shall not be brought after the expiration of two years from the date on which the cause of action accrued.”;

(II) by the insertion in section 49 of the following subsection—

“(5) In the case of an action claiming damages under section 13 (7) of the Sale of Goods and Supply of Services Act, 1980, subsection (1) of this section shall have effect as if for the words ‘six years’ there were substituted the words ‘two years’.”.

(9) Notwithstanding section 55 (1) of the Act of 1893 (inserted by section 22 of this Act) any term of a contract exempting from all or any of the provisions of this section shall be void.

MarkAnthony

Sorry for my third post but for some reason I can't edit posts.

Interestingly it is a criminal offence under the road traffic act introduced this year. Keep the pressure on with the seller and the guards.

hullaballoo

MarkAnthony wrote: »

Sorry for my third post but for some reason I can't edit posts.

Interestingly it is a criminal offence under the road traffic act introduced this year. Keep the pressure on with the seller and the guards.

New user! :pac:

MarkAnthony

Interference with odometer of mechanically propelled vehicle

14. (1) A person shall not interfere or attempt to interfere with the odometer of a
mechanically propelled vehicle.

(2) A person who contravenes, or who procures another person to contravene, subsection (1) commits an offence and is liable on summary conviction to a class C fine or to imprisonment for a term not exceeding 3 months, or to both.

(3) Where a member of the Garda Síochána has reasonable grounds for believing that a person is committing or has committed an offence under this section he or she may arrest the person without warrant.

(4) Where a person is charged with an offence under this section it shall be a defence to show that at the time of the alleged offence the person was acting in good faith in order to test, repair or replace the odometer of the mechanically propelled vehicle.

(5) In this section “odometer”, in relation to a mechanically propelled vehicle, means the device that measures and records the distance travelled by the vehicle but does not include an auxiliary device capable of being reset to measure and record individual journeys.

alltacht

Hi there,

Thank you so much for that. Duly noted.

As for how I fell for it, I had done a Cartell background check on the vehicle and everything checked out OK and was consistent with the info the seller gave me – last date of sale (2012), genuine Irish vehicle and not an import, DOE, number of owners, etc. The test drive was good – everything was solid and tight. I drove it twice, in fact, but don't know enough about the working parts to do much of an inspection/test myself.

But yes... not my finest moment.

MarkAnthony

hullaballoo wrote: »

New user! :pac:

That's what I thought but I can edit in Firefox - very odd.

alltacht

Have been pondering my situation and have been in touch with the Gardaí some more, as well as finding lots of conflicting information online.

In your quoted articles of legislation you say:

"in every contract for the sale of a motor vehicle (except a contract in which the buyer is a person whose business it is to deal in motor vehicles) there is an implied condition that at the time of delivery of the vehicle under the contract it is free from any defect which would render it a danger to the public, including persons travelling in the vehicle."

Does this pertain only to car dealers selling cars? Or private sellers as well? Presumably it's only dealers, as privately you can buy any old pile of junk or vehicle that's been written off?

You've also said:

"14. (1) A person shall not interfere or attempt to interfere with the odometer of a
mechanically propelled vehicle.

(2) A person who contravenes, or who procures another person to contravene, subsection (1) commits an offence and is liable on summary conviction to a class C fine or to imprisonment for a term not exceeding 3 months, or to both.

(3) Where a member of the Garda Síochána has reasonable grounds for believing that a person is committing or has committed an offence under this section he or she may arrest the person without warrant."

Well, the Gardaí local to the seller don't want to know about it. They're ignoring me and don't seem to have any interest in investigating. I found out that the seller is an extremely unsavoury character, to say the least – and I don't want to confront him either.

Is it illegal to sell a vehicle that has been clocked, whether or not you know it’s clocked?

Pat Mustard

In a nutshell, what the above legislation states is that it's generally caveat emptor if a person buys a motor vehicle from a private seller. However, if there is a dangerous defect in the vehicle, then a private seller may be liable.

Evidence of various defects are generally ascertainable by a motor assessor.

There is also the criminal issue of clocking the vehicle. You are not making any progress with the Gardai here.

Hire a solicitor, give him the details, and take advice on whether the seller is worth pursuing or not. If he's worth pursuing (if he has sufficient assets), then the solicitor should be able to advise on how best to establish a case based on a dangerous defect, and which professional witness to use to give the relevant evidence, etc.

The solicitor should also be able to write to the Superintendent on your behalf, to ensure that the criminal investigation proceeds.

MarkAnthony

alltacht wrote: »

Is it illegal to sell a vehicle that has been clocked, whether or not you know it’s clocked?

I only add to the very clear and succinct post made above to answer this point fully.

It is perfectly legal to sell a vehicle that has been clocked, even knowing it was clocked. You just can't do it yourself or ask someone to do it. For example you could now sell on the van without telling any prospective purchaser that the van was clocked without fear of criminal sanction under this legislation*.

It would have to be proved beyond a reasonable doubt that the seller clocked the van and that it was clocked after the ernactment date of the legislation(1) (21/3/14 IIRC). Frankly that's nigh on impossible.

If bluff and bravado haven't worked either follow the above posters wise advice or chalk it down to experience.

(1) Due to the proscription on retroactivity of criminal laws.
* Do not treat this as legal advice, I suspect there are other ways you could be prosecuted