'I bought a dodgy fertiliser spreader on a classified ad site. Have I any comeback?'
I am a farmer but I sometimes do a bit of contracting for machinery to supplement my income and I would have good knowledge about the quality of farm machinery.
I was recently looking for a fertiliser spreader for my own farm and I saw one on a website similar to DoneDeal.
There was a number and it said his name was Mick. I rang the seller and we agreed to meet up. He came to the farm and brought the spreader with him. He was eager for a cash sale and asked could we keep it out of the books and as he gave me a good price I agreed. He said if there was any problems with it to give him a shout and he gave me his word that it would fit on the tractor I have.
I then tried to use it the next day, but it wouldn’t attach to the tractor and the mechanism appears to be faulty. I rang the seller and he denied he sold it to me and said he can’t help me and I tried ringing again but he won’t answer. What should I do?
As a purchaser and particularly in respect of private treaty sales, you should be aware of the legal doctrine called ‘Caveat Emptor’. Unfortunately you are responsible for checking the quality and suitability of the product and there is an onus on you to do so.
Ordinarily a consumer will be protected under the Sale of Goods and Supply of Services Act 1980 where goods must be of merchantable quality, fit for purpose and as described in the advert. Two factors need to be considered when ascertaining whether you are a consumer.
Firstly it needs to be established whether the contract was made in the course of a business and secondly whether the goods supplied were the type ordinarily supplied for private use or consumption.
It could be classified here that you were making a commercial purchase for use in your business, trade or profession and you may not be classified as a consumer. However, you would still have rights under contract law.
As a general rule, the seller can either repair or replace the item. Alternatively, they can refund the cost of the item to you. The first step in attempting to obtain redress from a seller is to approach the seller directly and see whether they will agree to repair or provide a refund. I see you have done that and he is refusing to assist. The second step would be to instruct a solicitor and send a letter of demand.
The success of this letter will likely depend on the contract you and the seller have. It will depend if you have any sort of guarantee or warranty connected to the machine. It doesn’t appear that there is a warranty here unless the seller has one which he hasn’t made you aware of.
If a solicitor’s letter fails to obtain any redress in the matter it is advisable to consider initiating legal proceedings. Legal proceedings can be brought in the small claims, district, circuit and high court depending on the level of damages sought for the breach of contract.
The majority of consumer/breach of contract type cases tend to be dealt with in the lower courts.
It would have been better if you had a written contract or an invoice or bill with the seller as you could have relied on this as proof of payment which you may need to rely upon at a later stage.
In future, make sure you always get written proof of the sale. I think in your case, it would be helpful to print the website ad which gives proof of the seller’s phone number and name and you would will need to give a statement to your solicitor or you may need to give evidence in court to show there was an oral contract between you and the seller and to show you paid for and received the goods.
It might be helpful to look if there is a serial number on the leveller which may trace back to the seller.
In instances where a potential breach of contract has occurred it will be important to investigate who was at fault. If such a machine was used for its specific purpose and was not fit for that purpose and if you are classified as a consumer, you will have rights as far as seeking remuneration is concerned. If there is a fault it is advisable to immediately report it to the seller.
The longer you wait to report a fault, the weaker your position on a number of fronts is. It may be difficult to establish whether the goods were fit for purpose or faulty at the time of purchase as there may have been an intervening act in the interim period from the time of purchase to the time you noticed the fault. The seller may also potentially argue the fault has arisen from wear and tear in the interim period.
If the fault was present immediately after buying and you did not report it you may have difficulty obtaining a full replacement or refund.
You should also be aware of The Defective Product Act 1991 which introduced the idea of product liability and if a seller sells a faulty or defective product and harm such as personal injury is caused by that product, then the seller has been negligent and is liable for damages.
I would recommend in all cases that if you do discover a fault in goods such as machinery you have bought, it is advisable to take immediate action and notify the seller. If you receive no redress here, it is advisable to take legal advice and consider your options further.
Karen Walsh, of Walsh & Partners, Solicitors, comes from a farming background and is a solicitor specialising in agricultural law, land law and renewable energy and is author of ‘Farming and the Law’ available from www.claruspress.ie. The firm also specialises in personal injuries, employment law and family law. She has offices in Dublin and Cork. For further information please contact 01-602000 or 021-4270200.
Disclaimer: While every care is taken to ensure accuracy of information contained in this article, Solicitor Karen Walsh does not accept responsibility for errors or omissions howsoever arising, and you should seek legal advice in relation to your particular circumstances at the earliest possible time.
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