Used, but not abused: what rights do you have when buying a used truck?
Buying a second-hand truck can be a risk, but there are a number of rights operators have when navigating the used vehicle market.
Every time an organisation or individual purchases a second-hand vehicle there will be a number of terms implied in the contract which, provided they have not been expressly excluded, automatically give the buyer certain protections. These are set out in the Sale of Goods Act 1979 and the key terms are that the vehicle is:
- of satisfactory quality
- fit for purpose
- matches the description.
In establishing whether a vehicle is of satisfactory quality, factors such as safety, durability, freedom from minor defects and appearance and finish are all taken into account. It is, however, important to remember that the threshold for what is considered satisfactory quality in an older vehicle will inevitably be lower than that of a newer vehicle.
In the context of the sale of a vehicle, the requirement that it be fit for purpose is a relatively low threshold to meet. In reality, as long as the vehicle is safe and enables the driver to get from A to B, it is likely to be considered fit.
If a vehicle is being sold by description, then it must correspond to the description given to it by the seller. For example, if a vehicle is advertised as being a 2012 model, then it must in fact be a 2012 model. If it is a model from a different year then, even if there are no defects, there will be a breach of contract.
What rights do buyers have if they purchase a vehicle with defects?
If a buyer purchases a second-hand truck and subsequently discovers that it is has mechanical faults or it is in anyway dangerous (for instance, if it was previously written off) this may, depending on the terms of the contract, amount to a breach of contract on the part of the seller and also a breach of the implied terms of the Sale of Goods Act. Assuming that the breach can be established, the buyer will have a number of options open to them.
Firstly, the buyer has the right to reject the vehicle and ask for their money back. However, they will not be able to exercise this right if the fault would be considered so trivial that it would be not be reasonable or proportionate to reject the vehicle (for instance, if it had a broken windscreen wiper). The right to reject can be lost, so it is important that buyers act quickly and do not act in a manner inconsistent with the right to reject, such as continuing to use the vehicle after informing the seller they wish to reject it.
If the buyer chooses not to reject the vehicle after discovering the breach, they must give the seller the opportunity to repair it. If the seller fails to repair the vehicle, the buyer can then make a claim against the seller for damages arising out of the breach of contract. The purpose of making the claim against the seller is to put the buyer back in the position they would have been in had the contract not been breached, as far as money can. This will usually be the total amount required to carry out the necessary repair work on the truck, plus any associated losses. If it is not possible to repair the vehicle then ultimately the buyer can seek a refund.
If the seller has made false or misleading statements about the vehicle or misrepresented the facts, the buyer may have a claim in misrepresentation. The usual remedy in such a situation would be for the buyer to seek a full refund of the contract price, and both parties would go back to the position they were in before they entered into a contract. Misrepresentation is a complex area of law and a number of different considerations apply in determining whether a claim can be pursued.
Trading Standards and the CV trade
An additional consideration might be to approach Trading Standards, which is responsible for ensuring that traders are not breaching any of the applicable trading standard or consumer laws. In order to do this, it can carry out routine visits at traders’ business premises, monitor traders’ advertisements and follow up complaints.
Trading Standards officers generally have very wide powers and they can enter traders’ premises if they believe an offence has been committed and request copies of any relevant documents. If a trader fails to comply with any request, the office can impose penalties on them. It is therefore important that truck sellers take great care in making sure their vehicle advertisements are accurate and they retain the relevant paperwork when selling a vehicle.
What can hauliers do to reduce the risk of buying an unfit HGV?
Although there are terms implied into every contract made in the course of business, CV buyers should not rely solely on these terms and should take additional steps to reduce further risks.In a situation where the buyer and seller are both similar-sized businesses, both parties are considered to have equal bargaining power when agreeing to a contract. Therefore, both parties should take steps to ensure they know what they are agreeing to, including obtaining as much detail about the vehicle as possible; ensuring the relevant paperwork is in order; inspecting the vehicle (if possible) and agreeing a suitable price.
Often, businesses will incorporate their owns terms of business into each contract, so it will be important to read through these as well. It is possible to exclude liability for certain (but not all) implied terms, such as the right to reject the vehicle and the requirements for satisfactory quality, fitness for purpose and description (providing it would be considered reasonable to exclude them). Buyers should therefore consider carefully the terms of any contract and ensure that the key terms above are included.
- This article was written by Tony Pidgeon, senior associate at solicitors Stone King. For more details email TonyPidgeon@stoneking.co.uk.