Asked by the Customer on 08-09-2014 13:46:25
Question posted in the General Law category relating to Limpopo
Question posted in the General Law category relating to Limpopo
GOODAFTERNOON
I HAVE A DESPERATE ENQUIERY CONCERNING THE SALE OF MY CAR.
IN JUNE 2014 I DECIDED TO SELL MY CAR FOR R50000
A R20000 DEPOSIT AND R10000 PER MONTH TILL THE 1 OCTOBER 2014
ON THE 26T JUNE THE GUY PAID R15000 AND SAID HE WOULD TRANSFERR THE BALANCE (R5000) BY THE 28/06/14.
IN THE CONTRACT IT STATED THAT THE R15000 WAS PAID AND THERE WOULD BE A FURTHER R5000 ON THE 28/06/2014 AND IT WAS SIGNED.
WITH A AFFIDAVID AND EVERYTHING.
FIRST PAYMENT OF R10000 WAS TO BE MADE 1 AUGUST 2014, THEN 1 SEPTEMBER AND IN COMPLETION ON 1 OCTOBER.
THE CONTRACT ALSO STATED THAT BY THE 31 OCTOBER 2014 THE CAR COULD BE COLLECTED IF ALL THE MONEY WAS NOT PAID.AND THE INITIAL DEPOSIT OF R20000 WOULD BE NON REFUNDABLE.
THE BUYER FAILED TO PAY THE R5000 ON THE 28/06/2014 TO COMPLETE THE DEPOSIT AGREED.
THE BUYER PAID R4000 IN THE FIRST WEEK OF AUGUST AFTER CONTACTING HIM MANY TIMES.
TO DATE NO FURTHER PAYMENT HAS BEEN MADE. MANY EXCUSES HAVE BEEN GIVEN AND THE CAR IS GETTING MORE AND MORE DAMAGED.
TO DATE ,THE BUYER HAS ONLY PAID R19000.
CAN I TAKE THE CAR BACK BEFORE THE 31 OCTOBER 2014 ON THE BASIS THAT THE INITIAL AGREED DEPOSIT WAS NOT EVEN PAID.
PLEASE HELP ME WITH SOME DIRECTION TO SOLVE THIS MATTER.IM AT MY WITTS END.
THANKING YOU
JACLYN
28/06/2014
THE CONTRACT ALSO STATED THAT BY THE 31 OCTOBER 2014 THE CAR CAN BE COLLECTED IF THE FULL PAYMENT IS NOT MADE AND THE INITIAL AMOUT OF R20000 AS THE DEPOSIT WOULD NOT BE REFUNDABLE.
THE BUYER FAILED TO PAY THE INITIAL R5000 ON THE 28/
I HAVE A DESPERATE ENQUIERY CONCERNING THE SALE OF MY CAR.
IN JUNE 2014 I DECIDED TO SELL MY CAR FOR R50000
A R20000 DEPOSIT AND R10000 PER MONTH TILL THE 1 OCTOBER 2014
ON THE 26T JUNE THE GUY PAID R15000 AND SAID HE WOULD TRANSFERR THE BALANCE (R5000) BY THE 28/06/14.
IN THE CONTRACT IT STATED THAT THE R15000 WAS PAID AND THERE WOULD BE A FURTHER R5000 ON THE 28/06/2014 AND IT WAS SIGNED.
WITH A AFFIDAVID AND EVERYTHING.
FIRST PAYMENT OF R10000 WAS TO BE MADE 1 AUGUST 2014, THEN 1 SEPTEMBER AND IN COMPLETION ON 1 OCTOBER.
THE CONTRACT ALSO STATED THAT BY THE 31 OCTOBER 2014 THE CAR COULD BE COLLECTED IF ALL THE MONEY WAS NOT PAID.AND THE INITIAL DEPOSIT OF R20000 WOULD BE NON REFUNDABLE.
THE BUYER FAILED TO PAY THE R5000 ON THE 28/06/2014 TO COMPLETE THE DEPOSIT AGREED.
THE BUYER PAID R4000 IN THE FIRST WEEK OF AUGUST AFTER CONTACTING HIM MANY TIMES.
TO DATE NO FURTHER PAYMENT HAS BEEN MADE. MANY EXCUSES HAVE BEEN GIVEN AND THE CAR IS GETTING MORE AND MORE DAMAGED.
TO DATE ,THE BUYER HAS ONLY PAID R19000.
CAN I TAKE THE CAR BACK BEFORE THE 31 OCTOBER 2014 ON THE BASIS THAT THE INITIAL AGREED DEPOSIT WAS NOT EVEN PAID.
PLEASE HELP ME WITH SOME DIRECTION TO SOLVE THIS MATTER.IM AT MY WITTS END.
THANKING YOU
JACLYN
28/06/2014
THE CONTRACT ALSO STATED THAT BY THE 31 OCTOBER 2014 THE CAR CAN BE COLLECTED IF THE FULL PAYMENT IS NOT MADE AND THE INITIAL AMOUT OF R20000 AS THE DEPOSIT WOULD NOT BE REFUNDABLE.
THE BUYER FAILED TO PAY THE INITIAL R5000 ON THE 28/
Message from the Attorney
Posted by Att. Patrick on 08-09-2014 14:54:45
Hi there and thank you for your question,
To me this is quite a simple case of breach of contract. You entered into a contract; there were terms and conditions in the contract; obligations on the purchaser to pay; the purchaser did not pay; which means that the purchaser has breached the contract; which means that you can sue the purchaser. You can either sue the purchaser for specific performance (i.e. he must do what he said that he would do) or you can sue the purchaser for breach and cancel the original agreement (give me my car back)
If your contract included a clause which recorded that the ownership in the vehicle would remain with you until it was fully paid for, and only after the final payment would the purchaser become the owner of the vehicle, then you are within your rights to go and collect the vehicle.
But, you will first need to put the purchaser in breach by sending him a letter/email advising him that he is in breach in that he has failed to make the required payments to you, and that you are therefore cancelling the sale, and that you intend claiming the vehicle back from him.
Perhaps it would be best to hand deliver the letter to him at the same time as you collecting the vehicle, otherwise he will simply try to hide the vehicle from you!
I assume that you have already handed over the registration papers for the vehicle, and that the purchaser is now listed as the vehicle's registered owner? Is that so, or did you keep the papers?
If you didn't want the vehicle returned, you could also just sue the purchaser for the payment of the balance due and owing. You will need to go to your nearest Magistrates' Court and ask the clerk of the Court to assist you in issuing a summons. The summons will be served on the purchaser by the sheriff of the Court, and you will then need to claim the balance of funds from the purchaser in Court.
Finally, you could also visit an attorney to ask him/her to assist you in writing the breach letter, and also to assist in fetching the car. The attorney would also be able to assist you further in representing you in Court - as this is what an attorney does on a day to day basis!
If there is a clause in the agreement that he would lose his deposit if he breached the agreement, you should ensure that the Court is aware of this - otherwise you may be ordered to return the deposit to the purchaser...
If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.
Att. Patrick
Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
To me this is quite a simple case of breach of contract. You entered into a contract; there were terms and conditions in the contract; obligations on the purchaser to pay; the purchaser did not pay; which means that the purchaser has breached the contract; which means that you can sue the purchaser. You can either sue the purchaser for specific performance (i.e. he must do what he said that he would do) or you can sue the purchaser for breach and cancel the original agreement (give me my car back)
If your contract included a clause which recorded that the ownership in the vehicle would remain with you until it was fully paid for, and only after the final payment would the purchaser become the owner of the vehicle, then you are within your rights to go and collect the vehicle.
But, you will first need to put the purchaser in breach by sending him a letter/email advising him that he is in breach in that he has failed to make the required payments to you, and that you are therefore cancelling the sale, and that you intend claiming the vehicle back from him.
Perhaps it would be best to hand deliver the letter to him at the same time as you collecting the vehicle, otherwise he will simply try to hide the vehicle from you!
I assume that you have already handed over the registration papers for the vehicle, and that the purchaser is now listed as the vehicle's registered owner? Is that so, or did you keep the papers?
If you didn't want the vehicle returned, you could also just sue the purchaser for the payment of the balance due and owing. You will need to go to your nearest Magistrates' Court and ask the clerk of the Court to assist you in issuing a summons. The summons will be served on the purchaser by the sheriff of the Court, and you will then need to claim the balance of funds from the purchaser in Court.
Finally, you could also visit an attorney to ask him/her to assist you in writing the breach letter, and also to assist in fetching the car. The attorney would also be able to assist you further in representing you in Court - as this is what an attorney does on a day to day basis!
If there is a clause in the agreement that he would lose his deposit if he breached the agreement, you should ensure that the Court is aware of this - otherwise you may be ordered to return the deposit to the purchaser...
If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.
Att. Patrick
Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
Message from the Customer
Att Patrick
Thank you for your helpful reply, I just need a few more clarifications.
The full ownership of the vehicle is still in my name and I have the papers for it. The agreement stated that he would receive the papers after the last payment.
The R15000 paid on the 26th June 2014 as the holding deposit is stated as non refundable and the R5000 was due on the 28th to make R20000. He only paid R4000 on the 7th of august making R19000 only.
Am I in my legal right to collect the vehicle without the court and attorney's being involved?
Can I draft the letter of "breach of contract" myself and hand it over and collect my car,with out the attorney being involved?
Should I get it stamped by the police station?
Am I liable to pay back any funds ?
Thank you for your response
Thank you for your helpful reply, I just need a few more clarifications.
The full ownership of the vehicle is still in my name and I have the papers for it. The agreement stated that he would receive the papers after the last payment.
The R15000 paid on the 26th June 2014 as the holding deposit is stated as non refundable and the R5000 was due on the 28th to make R20000. He only paid R4000 on the 7th of august making R19000 only.
Am I in my legal right to collect the vehicle without the court and attorney's being involved?
Can I draft the letter of "breach of contract" myself and hand it over and collect my car,with out the attorney being involved?
Should I get it stamped by the police station?
Am I liable to pay back any funds ?
Thank you for your response
Message from the Attorney
Posted by Att. Patrick on 09-09-2014 09:34:21
Hi again,
Q: Am I in my legal right to collect the vehicle without the court and attorney's being involved? -- He would argue no, but I would argue yes. Legally, you've sold the car to him. You may have retained the registration papers, but legally he could claim that he is now the owner of the car. Your argument is that you have (in the agreement) reserved ownership of the vehicle until such time as he has fully paid for it - so it is still your car. That gives you the right to go and fetch it.
The problem is that he won't want to give it to you, so you will either need to claim it through court, or try lay a charge of theft with the police - which won't work because the police will know that it is really a civil claim, not a criminal claim.
Q: Can I draft the letter of "breach of contract" myself and hand it over and collect my car,with out the attorney being involved? -- Yes you can.
Q: Should I get it stamped by the police station? -- No need to.
Q: Am I liable to pay back any funds? -- Not the agreed upon deposit amount, but yes on anything over and above that.
If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.
Att. Patrick
Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
Q: Am I in my legal right to collect the vehicle without the court and attorney's being involved? -- He would argue no, but I would argue yes. Legally, you've sold the car to him. You may have retained the registration papers, but legally he could claim that he is now the owner of the car. Your argument is that you have (in the agreement) reserved ownership of the vehicle until such time as he has fully paid for it - so it is still your car. That gives you the right to go and fetch it.
The problem is that he won't want to give it to you, so you will either need to claim it through court, or try lay a charge of theft with the police - which won't work because the police will know that it is really a civil claim, not a criminal claim.
Q: Can I draft the letter of "breach of contract" myself and hand it over and collect my car,with out the attorney being involved? -- Yes you can.
Q: Should I get it stamped by the police station? -- No need to.
Q: Am I liable to pay back any funds? -- Not the agreed upon deposit amount, but yes on anything over and above that.
If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.
Att. Patrick
Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
Message from the Customer
Att Patrick
I did draft the letter of breach of contract and handed it to the buyer yesterday. we both finish work at the same time and by the time I got home and went to his place of residence.
Neither him nor the car could be found, I did drive by there on Monday evening and the vehicle was there parked and the guy was home. He didn't see me however.
But yesterday after handing him the letter in the space of 30minutes he disappeared with the car and when I went to the residence the other people there instead the guy does not stay there.
What more can I do?
I did draft the letter of breach of contract and handed it to the buyer yesterday. we both finish work at the same time and by the time I got home and went to his place of residence.
Neither him nor the car could be found, I did drive by there on Monday evening and the vehicle was there parked and the guy was home. He didn't see me however.
But yesterday after handing him the letter in the space of 30minutes he disappeared with the car and when I went to the residence the other people there instead the guy does not stay there.
What more can I do?
Message from the Attorney
Posted by Att. Patrick on 10-09-2014 15:13:35
Hi there again,
Well, he is pulling a typical hide and come find me game - trying to evade your efforts to recover the vehicle. All I can suggest is that you continue trying to track down the vehicle. If you can't, then you are going to have to go to the Magistrates' Court like I suggested above and sue him!
"If you didn't want the vehicle returned, you could also just sue the purchaser for the payment of the balance due and owing. You will need to go to your nearest Magistrates' Court and ask the clerk of the Court to assist you in issuing a summons. The summons will be served on the purchaser by the sheriff of the Court, and you will then need to claim the balance of funds from the purchaser in Court."
Att. Patrick
Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
Well, he is pulling a typical hide and come find me game - trying to evade your efforts to recover the vehicle. All I can suggest is that you continue trying to track down the vehicle. If you can't, then you are going to have to go to the Magistrates' Court like I suggested above and sue him!
"If you didn't want the vehicle returned, you could also just sue the purchaser for the payment of the balance due and owing. You will need to go to your nearest Magistrates' Court and ask the clerk of the Court to assist you in issuing a summons. The summons will be served on the purchaser by the sheriff of the Court, and you will then need to claim the balance of funds from the purchaser in Court."
Att. Patrick
Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
Answer Accepted
This answer was accepted on 12-09-2014 10:14:41
If you would like to view the entire answer, you will need to either login or register a FREE account.