“I have recently supplied a car to a Consumer, they have come back to me and stated it will not pull their caravan and are claiming it is in breach of the contract and not fit for purpose. Am I liable.”
There are 2 aspects of The Consumer Rights Act 2015 (CRA) that may apply and will need to be considered when dealing with this type of complaint.
Satisfactory Quality
Under the CRA, satisfactory quality has a specific definition. The law requires that any goods meet the quality that a reasonable person would consider satisfactory, taking into account :-
· any description of the goods,
· the price or other consideration for the goods, and
· all the other relevant circumstances.
One aspect of satisfactory quality is that any goods must be fit for the purpose for which the goods of that kind are usually supplied (CRA s9(3)(a)).
Fit for Particular Purpose
Another aspect of the CRA is where a Consumer tells you what they will be using the vehicle for either before or during the sale. The goods supplied must then be reasonably fit for that purpose, whether or not it is a purpose for which goods of that kind are usually supplied (CRA s10(3)).
Am I In Breach?
Now, we very deliberately do not know what car was sold and what discussions were had, and so the answer is, it will depend.
If we are talking about a car that is not suitable or usually used for towing, such as a Smart Fortwo, and there were no discussions about the vehicle being used for towing during the sales process then there is no breach of contract. A Smart Fortwo is not usually supplied to tow vehicles, and so it’s inability to tow a vehicle will not be a breach of satisfactory quality, whether the Consumer expected it or not. As you were not made aware of the Consumer’s intention to tow their caravan with the car, it is not required to be fit for that particular purpose either.
If we are talking about the same car, but this time there was a discussion about the vehicle being used for towing during the sales process, then there will be a breach of contract. Whilst a Smart Fortwo is still not usually supplied to tow vehicles and will still not breach satisfactory quality as a result, you were now made aware of the Consumer’s intention to tow their caravan with the car and so it must be able to tow a caravan to be fit for that particular purpose. A
smart Fortwo can never be fit for towing anything as it is not rated by the manufacturer to do so, as such there is a breach of fit for that particular purpose.
The Last example goes further. If we are talking about a car that can tow a vehicle, such as a Mercedes A-Class, and there was a discussion about the vehicle being used for towing during the sales process, but the complaint is that the Consumer’s caravan is over the maximum towable weight for which the vehicle is rated. Using the same logic, the vehicle is of a type usually supplied to tow vehicles and will still not breach satisfactory quality. If we were not told the weight of the caravan during the sales process, then technically there is no breach of fit for that particular purpose either as the vehicle can tow a caravan and the particular caravan was not discussed in any way.
That said, in the above example the member would probably be under a duty to fully describe the towing capabilities and limitations of the vehicle or risk liability due to Misrepresentation….but that is another article.
In Conclusion
Fit for purpose can be a tricky allegation to engage with. Unless you have a detailed copy the advert and any descriptions given, this will always be a ‘he said she said’ situation. For this reason we advise always keeping a full copy of any advert, including photographs where possible. Any complaint should be investigated early, and the Consumer should be encouraged to give a detailed description of what happened before you respond. This is to crystalise the Consumer’s allegations and fix them to one story. Where possible a statement should be taken from the salesperson at the earliest opportunity again to fix their memory going forward and for use if they are not available at any court hearing. Lastly any recorded calls or CCTV footage of the sale should be saved for use in court if needed.
If you cannot agree during the complaints process, consider referring the matter to the National Conciliation Service. This is a free and independent dispute resolution service provided to RMI members and their customers. They can be contacted on 01788 538317 and more details can be found on the RMI website at http://www.rmif.co.uk/consumers/why-use-an-rmi-member/
Finally, this advice is general in nature and will need to be tailored to any one situation. As an RMI member you have access to the RMI Legal advice line, as well as several industry experts for your assistance. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate.
Motor Industry Legal Services
Motor Industry Legal Services provides fully comprehensive legal advice and representation to UK motor retailers for one annual fee. It is the only regulated law firm in the UK which specialises in motor law and motor trade law. MILS currently advises over 1,000 individual businesses within the sector as well as the Retail Motor Industry Federation (RMI) and its members.
