Asked by Dave Muir on 15-10-2014 20:57:26
Question posted in the National Credit Act Law category relating to Gauteng
Question posted in the National Credit Act Law category relating to Gauteng
I recently bid for and won a vehicle which was on auction on BidorBuy. As I explained to the seller at the time when the auction was listed, I was in the Eastern Cape on business and could therefore not view the vehicle personally. I was therefore totally reliant on the description of the vehicle as it was listed on the website. I attach a URL for your reference. Unfortunately this website does not support the pasting of the URL, so I have typed it in instead. Please note that this is the second listing of the vehicle and not the original listing.
www.bidorbuy.co.za/item/164064426/TOYOTA_AYGO_1_0i_WILD_2013_MODEL_WITH_ONLY_19900KM_.html
The seller used the following words to describe the vehicle on the ORIGINAL listing (not the current listing): "to us it seems perfect" and "there isn't any visible damage on the car". Fortunately I printed a copy of the original listing.
I paid a "deposit" of R1500 which was required by the seller while I was still in the Eastern Cape on business. I advised the seller that I would pay the outstanding amount and take possession of the car when I returned from my business trip, which I duly did a few days later.
Upon arrival at the company's offices, with my wife (for whom the vehicle was intended), a laptop and modem for doing the transfer, I asked one of the employees if I could see the actual vehicle before I made payment. The vehicle did not look anything like the photos displayed on the website. It had been standing outside in the sun, partly shaded by trees, with a lot of leaves and bird-crap all over the vehicle. I was willing to overlook this and started doing a cursory inspection of the outside of the car and picked up the following problems:
1) Bad overspray on the back bumper
2) The passenger side door had been resprayed in a colour that did not match the rest of the car.
3) Different brands of tyres, all of which had little or no tread left.
4) Dammaged rims.
5) Right passenger side tyre had a "bubble" in the tyre wall and was not fit for any driving.
6) The left front wheel hubcap was missing the center insert.
7) The driver side door did not close properly and I suspect that there was accident damage.
Now the above was as a result of a brief inspection of the outside of the vehicle. I can just image what the inside of the vehicle and the engine bay would look like. Makes one wonder how the engine was treated by the previous owner.
On the bais of the above, I refused to continue with the transaction. This resulted in a VERY confrontational attitude on the part of the sellers, with vulgar obscenities and accusations of racism being thrown around IN THE PRESENCE OF MY WIFE. To cut a long story short, we left the premises and my wife insisted that I do not take the matter further and instead write the whole experience off to another of lifes lessons.
Yesterday the seller filed what is called an SNC (Sale Not Complete) on the BidorBuy website. BirorBuy also simultaneously posted some veiled threats of my account being "disabled" should I not resond appropriately.
I filed an "appeal"against the SNC based on my experiences with the transaction and thereafter immediately requested BidorBuy to delete my account and profile from their database. It seems I don't like being threatened. I also indicated in my response that I would be now seeking legal avenues to recover my "deposit" of R1500.
This evening I receive a phone call from a surprisingly calm (given our previous confrontation) from the seller advising me that he has noted my intentions to recover the deposit of R1500. In the same conversation he advises me that he has relisted the vehicle for sale on BidorBuy, but after consideration he has decided to withdraw the listing because he wants me to honour my original purchase amount and he intends taking me to court in order to do so. He went as far as to give me the name and contact details of his lawyers, non of which I recorded. I advised him that I would be seeking relieve through the Small Claims Court, as it did not make financial sense to appoint a lawyer to recover R1500. He then proceeded to tell me that I must be aware that if HIS CASE went to court, I would also be liable for his attorneys costs.
I have been on the BidorBuy website about an hour ago, and the listing which he had supposedly removed is still up for auction. The two postings (original and current) are exactly the same, except for one MINOR detail. In the current listing he has added the words: "Some spray work visible."
I am convinced that his threats of legal action and attorneys costs are a bluff, especially given the fact that the second listing only closes later this evening.
What are my rights in this regard? I am aware that because the vehicle was bought on "auction" my rights are severly limited, but is there not a case to be made for mis-representation? On other vehicle auction websites like Burchmores (obviously a different kind of auction but the principles remain the same), the more obvious faults like "overhetas" or "does not start" or "acccident damaged" appear next to the lising in a comments column. Should this not also have been the case with this listing?
www.bidorbuy.co.za/item/164064426/TOYOTA_AYGO_1_0i_WILD_2013_MODEL_WITH_ONLY_19900KM_.html
The seller used the following words to describe the vehicle on the ORIGINAL listing (not the current listing): "to us it seems perfect" and "there isn't any visible damage on the car". Fortunately I printed a copy of the original listing.
I paid a "deposit" of R1500 which was required by the seller while I was still in the Eastern Cape on business. I advised the seller that I would pay the outstanding amount and take possession of the car when I returned from my business trip, which I duly did a few days later.
Upon arrival at the company's offices, with my wife (for whom the vehicle was intended), a laptop and modem for doing the transfer, I asked one of the employees if I could see the actual vehicle before I made payment. The vehicle did not look anything like the photos displayed on the website. It had been standing outside in the sun, partly shaded by trees, with a lot of leaves and bird-crap all over the vehicle. I was willing to overlook this and started doing a cursory inspection of the outside of the car and picked up the following problems:
1) Bad overspray on the back bumper
2) The passenger side door had been resprayed in a colour that did not match the rest of the car.
3) Different brands of tyres, all of which had little or no tread left.
4) Dammaged rims.
5) Right passenger side tyre had a "bubble" in the tyre wall and was not fit for any driving.
6) The left front wheel hubcap was missing the center insert.
7) The driver side door did not close properly and I suspect that there was accident damage.
Now the above was as a result of a brief inspection of the outside of the vehicle. I can just image what the inside of the vehicle and the engine bay would look like. Makes one wonder how the engine was treated by the previous owner.
On the bais of the above, I refused to continue with the transaction. This resulted in a VERY confrontational attitude on the part of the sellers, with vulgar obscenities and accusations of racism being thrown around IN THE PRESENCE OF MY WIFE. To cut a long story short, we left the premises and my wife insisted that I do not take the matter further and instead write the whole experience off to another of lifes lessons.
Yesterday the seller filed what is called an SNC (Sale Not Complete) on the BidorBuy website. BirorBuy also simultaneously posted some veiled threats of my account being "disabled" should I not resond appropriately.
I filed an "appeal"against the SNC based on my experiences with the transaction and thereafter immediately requested BidorBuy to delete my account and profile from their database. It seems I don't like being threatened. I also indicated in my response that I would be now seeking legal avenues to recover my "deposit" of R1500.
This evening I receive a phone call from a surprisingly calm (given our previous confrontation) from the seller advising me that he has noted my intentions to recover the deposit of R1500. In the same conversation he advises me that he has relisted the vehicle for sale on BidorBuy, but after consideration he has decided to withdraw the listing because he wants me to honour my original purchase amount and he intends taking me to court in order to do so. He went as far as to give me the name and contact details of his lawyers, non of which I recorded. I advised him that I would be seeking relieve through the Small Claims Court, as it did not make financial sense to appoint a lawyer to recover R1500. He then proceeded to tell me that I must be aware that if HIS CASE went to court, I would also be liable for his attorneys costs.
I have been on the BidorBuy website about an hour ago, and the listing which he had supposedly removed is still up for auction. The two postings (original and current) are exactly the same, except for one MINOR detail. In the current listing he has added the words: "Some spray work visible."
I am convinced that his threats of legal action and attorneys costs are a bluff, especially given the fact that the second listing only closes later this evening.
What are my rights in this regard? I am aware that because the vehicle was bought on "auction" my rights are severly limited, but is there not a case to be made for mis-representation? On other vehicle auction websites like Burchmores (obviously a different kind of auction but the principles remain the same), the more obvious faults like "overhetas" or "does not start" or "acccident damaged" appear next to the lising in a comments column. Should this not also have been the case with this listing?
Further information relating to Question:
The second listing of the vehicle, which was supposedly removed from auction, now stands at a bid price that is R500.00 higher than my winning bid on the first listing.
Message from the Lawyer
Posted by Att. Patrick on 16-10-2014 11:40:04
Hi there and thank you for your question,
Well, off the top of my head it is quite clear that he has made various material misrepresentations to you regarding the state and/or quality of the vehicle which induced you to bidding on the vehicle.
If the original posting uses words to the effect "to us it seems perfect" and "there isn't any visible damage on the car", meanwhile there is bad overspray on the back bumper; clear accident damage; resprayed passenger side door; different brands of tyres, all of which had little or no tread left; dammaged rims; right passenger side tyre had a "bubble" in the tyre wall and was not fit for any driving; and the driver side door did not close properly and I suspect that there was accident damage... there is most certainly a material misrepresentation.
This material misrepresentation would allow you to cancel the sale agreement due to the material misrepresentation, and claim your R1500 deposit back.
To deal with Bid or Buy, you need to write back to them to highlight the above material misrepresentation, and explain that the original posting was fraudulent in that it left out various material issues pertaining to the vehicle. When you went to visit the vehicle all of these issues came to light, and you cancelled the sale agreement.
To deal with the seller, you should write back a similar letter detailing the above material misrepresentations. Explain that you have taken legal advice, and that you are entitled to cancel the sale, and that you will be persuing him through the small claims court for the return of your deposit, and that he can expect a summons in due course.
The chances that he continues with his legal threats (especially if he is trying to sell the car again) are slim. If he does get an attorney involved, AND he was successful in Court, you would only be liable for his legal fees based on the Magistrates Court tarrif - which are LOW! Like R19 to draft a letter, and R13 for reading a letter. Very minor indeed. But that would be the worst case scenario!
The chances of him being successful, based on what you've stated above, are SLIM. He has definitely made a material misrepresentation to you.
For him to be vague and not really answer questions about the accident damage, and warranty, etc are material.
He pretends that it is his car that he has been driving and all is fine - when in actual fact he has most probably purchased a damaged car and tried to fix it cheaply himself for a profit.
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.
Well, off the top of my head it is quite clear that he has made various material misrepresentations to you regarding the state and/or quality of the vehicle which induced you to bidding on the vehicle.
If the original posting uses words to the effect "to us it seems perfect" and "there isn't any visible damage on the car", meanwhile there is bad overspray on the back bumper; clear accident damage; resprayed passenger side door; different brands of tyres, all of which had little or no tread left; dammaged rims; right passenger side tyre had a "bubble" in the tyre wall and was not fit for any driving; and the driver side door did not close properly and I suspect that there was accident damage... there is most certainly a material misrepresentation.
This material misrepresentation would allow you to cancel the sale agreement due to the material misrepresentation, and claim your R1500 deposit back.
To deal with Bid or Buy, you need to write back to them to highlight the above material misrepresentation, and explain that the original posting was fraudulent in that it left out various material issues pertaining to the vehicle. When you went to visit the vehicle all of these issues came to light, and you cancelled the sale agreement.
To deal with the seller, you should write back a similar letter detailing the above material misrepresentations. Explain that you have taken legal advice, and that you are entitled to cancel the sale, and that you will be persuing him through the small claims court for the return of your deposit, and that he can expect a summons in due course.
The chances that he continues with his legal threats (especially if he is trying to sell the car again) are slim. If he does get an attorney involved, AND he was successful in Court, you would only be liable for his legal fees based on the Magistrates Court tarrif - which are LOW! Like R19 to draft a letter, and R13 for reading a letter. Very minor indeed. But that would be the worst case scenario!
The chances of him being successful, based on what you've stated above, are SLIM. He has definitely made a material misrepresentation to you.
For him to be vague and not really answer questions about the accident damage, and warranty, etc are material.
He pretends that it is his car that he has been driving and all is fine - when in actual fact he has most probably purchased a damaged car and tried to fix it cheaply himself for a profit.
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.
Answer Accepted
This answer was accepted on 24-10-2014 11:19:29
Message from the client
What are my chances of suing the seller for libel/slander by virtue of the fact that he has referred to me as a racist on two occasions on a public website and also in person?
Message from the Lawyer
Posted by Att. Patrick on 16-10-2014 17:43:29
Hi there,
You are going to be spending big money on suing him in Court, and the damages that a Court may award you would most certainly not cover the costs of bringing the Court application to sue him. That would simply be a waste of money. It's not the answer you want, but it's my legal opinion!
Att. Patrick
You are going to be spending big money on suing him in Court, and the damages that a Court may award you would most certainly not cover the costs of bringing the Court application to sue him. That would simply be a waste of money. It's not the answer you want, but it's my legal opinion!
Att. Patrick
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