Hello, I have bought a vehicle from a de...

Asked by Nicholas on 17-12-2020 22:32:53
Question posted in the Consumer Protection Law category relating to Western Cape

Hello, I have bought a vehicle from a dealership that has various faults, including undisclosed accident damage to the bumper, chassis and a few other parts. initially they agreed to repair the first problem I found after initially refusing responsibility. I never got the repair done as I found more faults (accident damage) and I want a refund or replacement of the vehicle. The dealership has refused, but we are currently going through a process, mediated by RMI (retail motor industry), which may take months to resolve given the time of year and as it can be a lengthy process.

My question is: Who is responsible for repair and damage costs if the vehicle is further damaged by driving it with the faults it was sent to me with? (I don't want to repair it myself as I'm in the process of trying to return or replace it.)

Or

Should the dealership repair some of the problems while I fight my case for a refund or replacement, or will this jeopardize the end goal of a refund or replacement as myself and the dealership have already begun repairing the vehicle?  

Ultimately I don't know if I should use the car until this saga is over or repair it myself or get the dealer to or just use it and hold the dealership responsible in the end for further damages. 

Information Requested by Lawyer

Posted by Att. Patrick on 18-12-2020 00:09:18

Hi there Nicholas and thank you for your question,

I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.

Please keep in mind that our discussions is for general information purposes only. Our engagement on this website does not create an attorney-client relationship. 

The vehicle that you bought, was it brand new or was it second hand?

Did you specifically ask the dealer, or did the dealer actually tell you, that the vehicle had never been involved in an accident?  Or, did you just assume that it had never been involved in an accident and you thought that the dealer would disclose this fact if it had?

Do you know if, in the sale agreement, there is a clause which says that you are buying the vehicle vootstoets?

Att. Patrick

Information provided by client

Hi Patrick, thanks for the reply. It is a secondhand vehicle bought on about the 26th November 2020.

I was told by the salesman verbally that there was no accident damage and it was not a rebuilt vehicle. The owner of the company claims to not have know about any accident damage before sale. I took an audio recording of the owner saying this also.

Unfortunately I didn't read the sales agreement and just signed it. The dealership, through silence (lack of reply) won't send me the purchase agreement, receipt of purchase or anything else. It's been longer than 5 business days since I requested it.

Additionally: The vehicle was also advertised as having a full service history (I have screenshots of the ad), but only ended up having a partial service history, which I became aware of just before buying it, but still bought it anyway. The advertising of a full service history was key in me viewing the vehicle and letting another vehicle purchase fall through to look at this vehicle.

Answer to the Question

Posted by Att. Patrick on 18-12-2020 14:01:57

Okay, so I think that the crux of your case is that the salesman told you, verbally, that there was no accident damage to the vehicle and that is why you went through with the transaction and bought the vehicle. Am I right?

If the salesman had admitted that there was accident damage, I think that I'm also right saying that you would have either (1) walked away from the sale; or (2) offered less for the vehicle.

What the salesman did was to make material representations of fact to you in order to induce you into purchasing the vehicle, when the salesman either knew that the representations were false, or should have knows that they were false.

Material misrepresentations of fact can either lead to the cancellation of the sale and restitution of the money, or (if the material misrepresentations were not really serious) can lead to a reduction in purchase price.

Material misrepresentations will override a vootstoets clause in a sale agreement because they are based on the seller making specific representations as to the quality of the item. If the salesman had been silent, then you wouldn't have a case!

So your claim against the dealership is for cancellation of the sale agreement as a result of the misrepresentations made, and your money back, or for repayment of a portion of the purchase price.

Ultimately, a court will decide which is which.

If your evidence (in court) is that you would have paid less for the vehicle if you had known about the damage, then a court would only award you a reduction in purchase price.

However, if your evidence (in court) is that you would NOT have bought the vehicle if you had known about the damage, then a court will assist you in cancelling the sale.

I think that step 1 is to speak to the dealership about this and see if you can't reach an agreement. 

Step 2 is to send a formal letter of demand if you can't reach an agreement. 

Step 3 is to issue a summons if the dealership doesn't reply to the letter of demand. 

Information provided by client

Thanks Patrick, that definitely helps. Do you have any closing thoughts on my original question though? Who would be responsible for damages incurred to the vehicle in the interim if I drive it while trying to come to an agreement with the dealership? (Fan belt could snap as it arrived broken, engine could blow or be damaged from the oil service they never did, breaks could fail as I can't do wheel alignment due to the previous accident damage)

Answer to the Question

Posted by Att. Patrick on 18-12-2020 17:34:17

Unfortunately, you would. You should (if you want to be cautious) not drive the vehicle so that you can hand it back in the same condition that you received it in!

Otherwise, you must insure it, and then take the risk.

Answer Accepted

This answer was accepted on 18-12-2020 18:15:23

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