Fighting Back: How to Get Legal Redress

A lot of motorcyclists view the law in a bad light, their experiences confined to the use of the criminal law against them. The criminal law is just one aspect of the a system and if you can use the civil part correctly you'll find it can be a handy tool if you buy a dog of a bike.

On buying a bike both seller and buyer enter into a legal relationship called a contract... an obvious but important point, as it’s from this relationship that the rights and obligations of both parties flow. It is necessary to show a breach of this contractual relationship to exercise your rights. The current legal position is arrived at through the court’s interpretation of several acts of parliament, depending upon whether the purchase was either private or from a dealer.

Your rights are restricted in a private purchase. The law only requires the bike to be "as described," in a roadworthy condition and that the seller has legal title to the bike, with no-one else having a legal claim over it.

Just to make things complicated, not all statements me part of the contract... some are non-contractual representations. If a false statement induces you to enter into the contract it is known as a misrepresentation, which if made negligently gives the wronged party the right to treat the contract as if it never existed - you get your money back. If made fraudulently you can, in addition, sue for damages in deceit. As it is often difficult to say whether a statement is a misrepresentation or a breach of descriptive condition can have a go under both headings.

The seller of a stolen bike has no legal title and can't pass on any better title, so the true owner can come along and take it back... you can sue the seller for breach of contract for all your money back - if you can find him. Alternatively, if the police prosecute the thief you can ask them to apply for a Compensation Order if he’s convicted.

HP and conditional sale are different as the law... gasp... protects the buyer who buys a bike in good faith and without knowledge of the HP or conditional sale agreement, by letting the buyer get a good title - you become the legal owner.

The finance company has no right to repossess the bike, but beware, if there’s any doubt as to whether you knew of the bike being subject to such an agreement you'll have the police around. They'll probably be around, anyway, saying the finance company have the right to get the bike back. The finance company may also appear and ask you to sign a form saying they've called - "just for our office's use.” Sign nothing at all, and ignore the coppers as in my experience most of them have no idea of this particular area of civil law - quote Part 3 of the Hire Purchase Act 1964 incorporated into the Consumer Credit Act 1974 at them if they turn nasty.

If a buyer's cheque bounces, this is a breach of contract - failure to pay for the bike, and you can recover the money by suing. It may also be covered by theft, so try threatening police action if the buyer tries this nasty little trick.

The criminal law requires a bike to be in a roadworthy condition whether sold privately or through a shop - it’s a criminal offence to supply one that isn’t. So if you buy a bike with a bent frame or no brakes, it’s worth remembering and, perhaps, making a veiled reference to the fact that the police or local trading standards office may be interested.

There is is no concept of value for money recognised in contract law, whether in private or trade sale and no legislation stating how much a bike should cost... it’s left purely to the parties to the contract to decide.

A bike trader is not confined to shops with "Zen's Motorcycle Emporium" painted above the showroom window. It also includes a bike sold by a government dept., local or public authority, as well as someone who as part of their business or profession sells a bike - i.e. a despatch rider selling his work bike! It would include a car trader who sells just one bike and an apparently private seller who regularly sells bikes. This can be hard to prove as trading standards departments an eye on the level of cars sold by "private sellers" but rarely do the same with bikes.

Sales from a trader are covered by one of three acts. Cash sales, personal loans, part exchange, conditional sale, credit cards and credit sales are covered by the Sale of Goods Act 1979. Swaps (barter) by the Supply of Goods & Services Act 1983, HP by the Supply of Goods Act 1973. The reason for different acts covering the contracts is due to a technical legal rule which is irrelevant here as your rights are similar under all the acts.

These are known as your statutory rights and it’s important to distinguish between these and any protection you may get from a guarantee which is something you get on top of your statutory rights - in practice, often the guarantee gives you nothing extra. It can’t however remove or reduce your statutory rights. So if the seller tells you it’s not covered by the guarantee make it clear that you're not claiming under the guarantee but under your statutory rights.

When buying from a trader your statutory rights consist of not only the already discussed conditions (of being as described, roadworthy, and not nicked or owned by a finance company but also that the bike should be of merchantable quality and fit for its purpose.

The law says a bike is of merchantable quality if it’s fit for its purpose for which bikes of that sort are commonly bought or is as reasonable to expect, having regard to any description, price (if relevant) and any other circumstances. So a Goldwing shouldn't need a retune every 100 miles.

There are two provisos to the above - you can’t complain about a dodgy clutch if the trader told you about it and if you examine the bike you can’t complain about any defects you should have reasonably noticed. And if the bike was sold very cheaply you can't expect it to be A1. If you want a two up tourer and rely on the dealers knowledge to select an AR50, you can try a claim here. To illustrate how the above two cross over, a bike with faulty brakes is neither fit for its purpose nor of merchantable quality.

The next step is to decide against who to exercise the above rights. In a pure cash sale or swap the shop is liable. In the case of HP, conditional sale and credit sale, the shop sells the bike not to you but to a finance company. With credit sale the finance company immediately sells the bike to you, with a HP or conditional sale the finance company remains the owner until you make the last payment - the strict legal result is that it’s the finance company who'll be liable and not the shop.

If you use a credit card or obtain credit in the shop through a pre-existing arrangement the shop with a finance company that can only be used with a particular bike, then the shops sells the bike to you and the credit card or finance company advances the credit but you can exercise your statutory rights against both shop and credit company. This is due to the very wonderful Consumer Credit Act 1974 section 75. The ability to sue the credit company is very handy if the shop goes bust. This does not apply to cash advances from a card or to a personal bank loan even if the bank will only let you spend the money in one particular shop - in law, these are cash sales and the shop is liable.

You only have rights against the seller if a fault was present at the time of purchase, thus putting him in breach of contract, circumstances in which you can reject a bike and get a refund are very limited as a pretty major fault has to occur very rapidly - the owner of a new car was unable to reject his car when the engine seized after only three weeks and 142 miles. Your usual claim will be for the cost of a repair. In a cash sale direct your efforts at the shop.

Where credit is involved start at the shop but if it looks dodgy, write recorded delivery, keeping a copy of the letter to the finance or credit card company, explaining the problem. Include details a your credit agreement or card number... failure to contact the finance company may totally ruin your claim.

If the shop won't do anything, write recorded delivery to them, giving a time limit in which to get their spanners in action. If you phone, back it up with a letter. It’s normally not a good idea to stop payments as as this puts you in breach of contract when ideally you want the trader to be the only one in the wrong.

It’s occasionally worth stopping payments if you have a particularly intransigent trader and letting him sue you so that you can counter claim. The law allows you to stop payment on HP and conditional sales if the condition of merchantable quality is breached - but it'll need to be a very serious fault before you can reject it. There will be some kind of financial juggling by the court whereby they may allow you to recover some of the payments but you often get little.

If the dealer agrees to a repair, make your acceptance conditional on a successful repair, otherwise you'll end up going round in circles. If everyone tells you to go away, you'll have to obtain an independent mechanical report (AA, RAC or auto assessor, name from your local Trading Standards Dept). If you've got nothing else, a report from the person who did the repair may be OK, but it’s not truly independent.

Send the trader a copy of the report (it may not say that the fault was present at the time of purchase, so bluff) with a deadline for action. If there’s still no action then there's only one legal way to end it (not suicide and murder is still illegal), the Small Claims Court - an informal place for settling claims under £500, where solicitors are rare (as their costs can’t be recovered) and you'd be lumbered with a maximum cost of £37 if you lose.

You are suing for damages (money) for breach of contract but the court will never allow you to come out too high (you can’t get the cost of a new crank for a 3 year old bike), but, that said, it’s better to put in a high claim as the court will reduce a claim if too large but can’t increase an unduly low one. Cost, or estimate, of repairs plus that independent report will be needed.

Further guidance can be gained from the consumer department of our County's Trading Standards Dept., Citizens Advice Bureau (more sympathetic than legally correct advice) or a solicitor (for a £5 fixed fee or free interview). That then is your alternative to scratching the tank on Honest Henry's showroom FZR1000 on the way out of the shop. The golden rule is don’t let the bastards grind you down - if more people use the law less dealers will try it on and everyone will be better off.

Mick Dixon