grumpy_o_g
Well-Known Member
I understand your comments about the contract but how is the vendor selling by way of trade? They are unlikely to be boat dealers our even a limited company so wouldn't this be a totally non-commercial transaction?
Buying through a Broker.
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I understand your comments about the contract but how is the vendor selling by way of trade? They are unlikely to be boat dealers our even a limited company so wouldn't this be a totally non-commercial transaction?
JumbleDuck
Well-Known Member
Based on what contractual relationship between broker and buyer?
Tranona
Well-Known Member
He was not and that is what I said. Just making the point that a sale through brokerage is not normally covered by consumer law. It will be if the "broker" is acting as a dealer and actually owns the boat, which does happen. For example my old boat is for sale at a broker, but they actually own it having taken it in part exchange when I bought a new boat. It will be very clear to the buyer that it is not a private sale.
grumpy_o_g
Well-Known Member
Ah, apologies - all is clear now. I misunderstood.
JumbleDuck
Well-Known Member
Including law about false representation?
RichardS
N/A
Every sale in the UK is covered by fair/false representation. If you sell your car to another member of the public and knowingly claim something that is not true then the buyer can sue you for false representation. Provided they can prove the point because of the wording of the advert or a recording of the sale meeting they would receive compensation as I said back in post #77.
Richard
Tranona
Well-Known Member
I have resisted answering so far because you could have worked it out for yourself. Just Google the term. Misrepresentation does not need a contractural relationship. The offence is when a person makes an untrue claim that the buyer relies on to enter into a contract. The broker is an agent for the seller so any claims he makes must be true.
Just work it through. Broker does not normally make any claims about the boat. His T&Cs make it very clear that the boat is as seen and described by the seller and he is only acting as an agent. It is up to the buyer to satisfy himself that the boat is acceptable to him. However if the broker makes an untrue statement in addition to anything provided by the seller he is potentially open to a claim of misrepresentation.
As ever it will all depend on the facts of the case.
JumbleDuck
Well-Known Member
OK, they can sue me. Can they sue the next door neighbour who agreed to show people the car and handle the paperwork because I was away?
RichardS
N/A
They could if the neighbour was purporting to represent the seller and was making claims about the sale item which turned out to be untrue .... but if the nieghbouring was simply showing people the car then a case would not be winnable. However, anything said by the seller in the advert could be held against them even if they were not present at the sale.
This is obviously less clear-cut than a broker where the broker is clearly acting for the seller on a contractual basis and a relationship does not have to be inferred so in the actual case if the buyer was shown the tender and outboard by the broker and the broker did not say "These are not the items listed in the advert even though they fit the description" then the impication would be the opposite and I believe they would be jointly liable with the seller.
Richard
JumbleDuck
Well-Known Member
OK, so suppose someone comes to the boatyard where my boat is for the winter and looks at the adjacent boat with purchase in mind. I say "Yes, she's in great condition" and he buys her. Three weeks later he launches and the keel falls off. Does he have a claim of misrepresentation against me? Supposing the owner of the neighbouring boat had given me the keys and asked me to show the potential purchaser round in return for a pint?
It seems to me that you (plural, the broker enthusiasts) are making two contradictory claims. One is that the broker simply works for the seller in facilitating a private sale and the other is that the broker has some contractual duty of care to the buyer.
JumbleDuck
Well-Known Member
If a used car salesman tells me lies about a car he is selling for his employer, do I have a claim against him personally?
Sorry about all the questions - I find all this very interesting.
RichardS
N/A
A good question. As the salesman is an employee then the employer will be liable for any actions taken by the employee whilst on duty unless the employee did something which could not have been reasonably foreseen by the employer, such as pulling out a knife and stabbing a customer. There would be no point in suing the salesman as the employer is likely to be where the money and the insurance policy lies.
Even if the salesmen were self employed and under contract to the showroom (I've no idea if any car salesman actually work on such a basis), I'm sure that the showroom would still be jointly liable although, to be on the safe side, you would cite both in any claim.
Richard
JumbleDuck
Well-Known Member
Many thanks. IANAL, obviously.
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Interesting point. Has the broker committed an offence if they do not make this clear? The broker who sold me my boat didn't: an excerpt from an email thread between us:
"Thanks for the email. I understand you predicament with the other boats.
Unfortunately, I will not be able to get him to that level. The xxx is an expensive boat but I will not be able to get him to £xxxxxx.
How about if I can get the boat down to £xxxxxx including the table and a full tank of fuel? I am assuming the owner will go for this as the table is £xxxx ."
At the time this email was written the broker owned the boat which he had bought, without my knowledge, two months earlier from "him" - the previous owner. This was revealed in the previous bill of sale , disclosed after purchase. A well known, national brokerage chain, BTW.
Resolution
Well-Known Member
Interesting point indeed. As far as I am aware there is no legal requirement for the seller of a yacht to say from the outset whether he is acting as an agent / broker or as an owner / dealer. However as soon as you look at the contract it should be obvious to you as buyer. I have long suspected that few buyers have any understanding of the legal differences or of how much better it is to buy from a dealer. As ever, caveat emptor comes to mind!
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Tranona
Well-Known Member
In my view they should make it clear right from the outset. Most brokerage particulars have the disclaimer at the bottom stating they are only acting as agent, but not sure whether they use different paper for owned boats. In reality very few brokers do own boats and usually it is the small number who are dealers for big builders like Clipper, Ancasta, Sea Ventures etc.
Following my observations earlier on misrepresentation your example would be an illustration where you could show misrepresentation if you had then entered into a contract where you had lost because of the false information. However, it is difficult to imagine any loss in this situation, although ethically I don't think what he did was right.
The main thing with this, of course is that the buyer should be clear that he has different rights of the "broker" owns the boat because he is then a dealer - even if it is unlikely that he is making much of a profit on a used boat. The dealer usually has a survey on the boat before buying it which gives him some protection and some dealers also buy warranties, particularly on newer high value boats. It is the potential liability under consumer law, as well as the financial aspect, that is a barrier to dealing in used boats, but for new boat dealers where they do have workable margins it can be worth doing part exchange.
Edit
Just thinking a bit more about what the broker said - he may well have been referring to his boss as the owner. You say it is a big firm, in which case the person you were dealing with is probably an employee, not the owner of the boat. It is quite normal for employee/salesman to be given discretion on price but outside that the final say is with the boss. That was certainly the case with my latest purchase because on the day of reckoning my offer was below what had been quoted for a new boat, and the final bit of horse trading was with the MD.
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Tranona
Well-Known Member
Richard has answered the issue of an employee in relation to misrepresentation.
With a broker the key factor is that he is acting as agent (in a legal sense) for the seller, so his relationship with the buyer is covered by the law of agency.
As I have pointed out a number of times there is little about brokerage activities that is not well covered by established law, and certainly nothing that requires any special legislation or regulation - unlike many other trades and professions!
JumbleDuck
Well-Known Member
Perhaps, but I note that brokers of high repute - I believe jonic is among them - would like to see the profession properly regulated. After all, the idea that there is nothing special about the job sits ill with the notion that yacht selling is a uniquely complicated business.
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Definitely not his boss. He joked about the 'owner's' occupation with me. Like you, I couldn't see a basis for any claim though it left me with a bitter taste and did little for my opinion of brokers. I was perhaps a bit too trusting, I won't be next time.
theoldsalt
Well-Known Member
The relationship between broker and buyer also depends whether the broker owns the boat privately or as part of the business. As a "private" seller the broker pays no VAT but If it is the brokerage that owns it then how does that affect the VAT status?
When the broker acts as agent VAT is payable only on the commission. However if the brokerage company (assuming it is VAT registered) owns it should it charge VAT on the selling price and reclaim the VAT on the purchase price like any retail item?
When the broker acts as agent VAT is payable only on the commission. However if the brokerage company (assuming it is VAT registered) owns it should it charge VAT on the selling price and reclaim the VAT on the purchase price like any retail item?
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