caveat emptor has been tested in court time and again, in many jurisdictions.
It is settled law that this principle does not operate to enable a fraud by a seller on a buyer.The seller's legal obligation is to deal fairly with the buyer. That includes not committing a fraud on them by withholding information that a reasonable person would think relevant to the decision about whether or not to buy the car, or what price to offer. In other words - buyer beware, yes, but you don't get to use that to justify pulling a trick on the buyer.This is the risk and trade-off with buying privately, yes.
That and the lack of security of title.
But that risk does not mean that the seller is fair game for fraud, even by a private seller.That is the risk that he chose to take, yes.
And no, as a private seller, you are not under any obligation to make warranty repairs
in the way that a dealer is.
But you did (do) have an obligation to tell the truth to the buyer. That's part of the ordinary law of contract.Spurious nonsense.
Bottom line:
- No, a private seller does not have to warrant a car in the same way as a Licenced Motor Dealer.
- But, it is a basic principle of the Law of Contract that if a person enters into a contract that is fraudulent, then that contract is voidable.
And if that's the case then, for example, a "seller" can be made to take the object sold
(be that a car or whatever) back, and be made to return the money.
Or, in the alternative, be made to pay for relevant repairs.
Without referring to your particular case, an example of a fraudulent act in contract could be
deliberately withholding information about the mechanical condition of a car
that a seller knew, or reasonably should have known, was the kind of information
that a reasonable person would think was relevant to the decision to buy that car or not.
Even if neither party understood the technical/mechanical nature of that information.
- Yes, it is a matter for one party (a plaintiff, such as dissatisfied private car buyer)
to show, on the balance of probabilities, that the other party
(a defendant, such as a private car seller) acted fraudulently when entering into the contract.
But that is very do-able - because proving a negative is quite difficult for a defendant to do.
Hi Tim. I was wondering if you could help me?
I am currently in a battle with the seller of my car who blatantly lied about the car I’ve bought and has failed to deliver key items that he said he had for the car. I also still owe money for the car and am being threatened with legal action because I will not pay.
I’ll give you a run down of the situation. All correspondence to do with the car was done through Facebook messenger so I have proof of exactly what was said.
I wanted to buy a modified v8 Commodore or hsv. I’d been looking for a while on several Facebook sites and saving cars that interested me. I had money for the car but had used some of my car funds to pay for Xmas and was planning on purchasing a car in the new year and it would be my Xmas/ birthday present.
I saw a car posted from a bloke I have known for about 8 years and commented on it. He replied telling me how the car was in mint condition and he’d spent $17000 on rebuilding the motor and auto box 30000klms ago and the it was getting a major service the next day and the car had a 2 year fully transferable unlimited klm warranty on the entire car and he would rather sell it to me because I’d look after it right and he’d reduce the price by $3000 to $17000.
I told him that just before Xmas was bad timing as I spent some of the money I had on Xmas and if he still had it in February I’d come look at it. He said he’d be willing to have the car and whatever. I was short I could pay him whenever I could and he wouldn’t hassle me about it.
I let him know it wouldn’t be until at least February and that was fine. He would rather see me in his car because he knew I’d never have to spend a cent on it as it was such a mint vehicle, apart from a few minor scratches on the paint and some rash on the wheels. The only thing wrong with it was the front bumper had some deep scratches down the bottom but he had already ordered. And paid for a brand new club sport bumper that was due to be delivered in January that I could have.
He brought it to my house and I test drove it. It went great, looked great, sounded amazing. How could I go wrong?
The car I was looking for with a rebuilt modified engine with warranty and new bumper from someone who wasn’t a stranger and to top it off he’d take my 4wd for $3000 and I wouldn’t have to try and sell it. Dream deal.
When I went to pick up the car all was good the rego was in his fiancée's name and he wanted my car to go to her as well. I have never met her or spoken to her. His rego papers were pre signed and he signed her signature on my notice of disposal. We traded cars Rego papers and I gave him $12000, owing him $2000. We drove the 90 min drive home and the car was excellent.
Upon arrival at home I got out the books and paperwork from the glove box and couldn’t find any paperwork relating to the engine build, dyno tune or warranty. I messaged him and he said they must be in his bedroom drawer and he’d bring them to me when he came down next weekend.
2 days later it started to stall when it was put into gear and was impossible to drive.
To get going you had to rev the car to about 1500 revs and then put it into gear. I asked him if he’d had trouble with it stalling as it idled low for an auto and he said that he’d turned the idle down with a screw on top of the motor and you have to warm the car up completely before driving off. This is impossible with an electronic throttle that is on this car.
I found the problem was it was sucking air through a missing clamp on the airbox and a hole that had been cut in it. It ran fine again gain but the next day had a big clunk in the rear end. It was the Diff. $1500 to fix it. The check engine light is now on and the car overheated. Think it’s a dead temperature sensor as the thermo fans aren’t working.
I had to add 4 litres of coolant to the radiator and when I checked the oil it was on low so it uses oil, something a fresh engine shouldn’t do. I’ve also found the previous owner of the car and he said all the work done to the car was done by the bloke he bought it off and he’d only sold it a week before I’d bought it.
Everything I was told about the car was a lie. I’ve been hassling him for the paperwork and bumper and now he’s threatening legal action to get his money. I’ve told him to produce the bumper and paperwork for the warranty and engine build and he’ll get it.
My mrs is stressing out about it. Is there anything I can do to get my money back as the car is obviously going to need lots of dollars spent on it in the near future and how would I go about it? And what do I do about his threat to sue me?
I know he doesn’t really have a case and it’s probably all bluff but I’d like to turn the tables on him and put my wife at ease with the whole matter. And who would I sue him or her and if I won would they have to give me the whole amount or could they cry hardship and pay it off over time, as this would screw me up. I also know of at least 3 other cars and a Harley that this same guy has been trying to sell since I bought my car.
Any help you could give me would be greatly appreciated.
Thanks
