Owner/Seller or does it matter?

C

crw1994

New Member
Nov 20, 2008
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0
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You may remember my thread about a boat trailer - it was about a trailer that was inaccurately described. This now has a final hearing date of 13th February 2009 and I would appreciate feedback on one point please.

I responded to an advertisement that was placed by a Mr. Lewis. I arranged with him to view the trailer. He sent further pictures of the trailer by email. I met with him at his home, viewed the trailer and payed him the money.

After taking the trailer away, I discovered the trailer was not as described. I wrote to Mr. Lewis and asked him for a refund. He has sent a number of replies by email "signed" by himself in which he says "He purchased the trailer and was told the description", "He sold me the trailer in good faith" etc.

When I served the court papers on Mr. Lewis he defended the action saying that he was not the legal owner of the trailer, that he did not sell me the trailer but he was only "assisting" his live in partner (Miss. Sainsbury) as she was unable to involve herself in the sale due to an ongoing medical problem which left her in pain!

I have now received an email from Miss. Sainsbury (some six months later) saying that whilst it may appeared that Mr. Lewis wrote these emails to me and that whilst the emails were signed by Mr. Lewis, it was her who actually wrote the emails!

I suppose at the end of the day, no one can disprove this.

However, Mr. Lewis clearly sold me the trailer. Whether he was acting as the owner/seller/agent I am not sure.

Does anyone have any case law to point to where the person who "conducts" the sale is responsible for ensuring that the item (trailer) is described correctly?

Would appreciate your help.

Thanks

Chris
 
Tony

Tony

What Consumer Founder
Apr 7, 2008
18,307
3
38
Bolton
Hi Chris,

This is a tricky one. I guess the question is whether vicarious liability exists between these two. This might help:

TESCO SUPERMARKETS LTD V NATTRASS


Tesco Supermarkets v Nattrass [1972] AC 153 (HL)

Directing Mind, Concerning the "directing mind" of a concern

Facts

This is a leading case on the Trade Descriptions Act 1968,(s.24(1) of the TDA) where Tesco relied upon the defence of the ‘act or omission of another person’ i.e. their store manager, to show that they had taken all reasonable precautions and all due diligence.
Tesco had a special offer on washing powder, with a poster relating to the offer displayed in the store. They ran out of the specially marked low price packets but failed to remove the poster when higher priced stock was put on the shelves and someone was overcharged.
Tesco said that their system was that the store manager should check the pricing and on this occasion he failed to follow their instructions.


The Decision

In the House of Lords Tesco were successful with their defence showing that:
• a store manager was classed as ‘another person’, and
• a system of delegating responsibility to that person was performance of due diligence, not avoidance of it


Note

The prosecution was under the Trade Descriptions Act 1968,(s.24(1) of the TDA) - the important part in relation to health and safety is "Directing Mind"


The store manager was not the directing mind and will of the company - the company had done all it could to avoid committing an offence and the offence was the fault of another person (an employee). The company was acquitted.
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