From disspointing to infuriating and beyond

[Whitelighter]

Hi JFM,

Box cleared but also saw your email.

 

[petem]

Probably, a better translation of that sentence could be something like "...refusal to buy for substantiated reasons", but that doesn't change the fact that the extent/seriousness of these reasons is not specified.

Actually, this might work both ways, at least in an IT court: since that's not contractually defined, an independent survey report confirming that osmosis/moisture is beyond what should be expected, possibly quantifying also an estimate of the repair costs involved (which surely aren't trivial, if one should really want to make a proper osmosis treatment of the whole hull), is something that could support the rejection decision.
After all, the seller/broker can say what they please about osmosis being normal for a 15yo grp boat (though I'm afraid that jfm point about that being rather common is correct), but if as a consequence the buyer must afford an unpredicted/undisclosed major repair work, possibly worth 1/4 of the boat value if not more, no judge in his right mind could dismiss the argument.

Bearing in mind the "...refusal to buy for substantiated reasons", if Jez was unable to get finance because the loan co deemed the fault to be significant then couldn't that be argued to be a "substantiated reason"? Conversely if the loan co are OK with the survey finding then it might be an argument for continuing with the sale?

 

[MapisM]

That's a good point P, in fact I did say that the lack of pre-agreed reasons can work also against the seller, not just in his favour. There are several other considerations though. I'm on it atm, and hope to give Jez a feedback asap.
I'm not holding my breath re welcoming an Az42 in CF while on her way to the Balearics, anyway...

 

[petem]

That's a good point P, in fact I did say that the lack of pre-agreed reasons can work also against the seller, not just in his favour. There are several other considerations though. I'm on it atm, and hope to give Jez a feedback asap.
I'm not holding my breath re welcoming an Az42 in CF while on her way to the Balearics, anyway...

Hope it goes well, looking forward to a positive update.

 

[Whitelighter]

Got some more news today that I think nails the coffin on this deal.

Will update later

 

[MrB]

Got some more news today that I think nails the coffin on this deal.

Will update later

Fingers crossed.:encouragement:

 

[petem]

Any update WL?

 

[Whitelighter]

I'm waiting on a report from the engineer who took oil samples.

I've had a verbal report but I'd rather wait until I've seen the full report and sent it to the broker before posting details on here. Hopefully I'll be able to update on Monday evening

 

[Pinnacle]

Fingers crossed for you J.

 

[John100156]

I'm really sorry to read about this Jez, I was looking forward to seeing you in SCM once again - if it were me, I think I would just proceed to purchase at that price, I know of several boats bought and sold in SCM recently where buyers never even bothered to move to survey, unwise IMO, but for that sort of money I don't think it would be a problem selling her after you have tidied her up.

So, I don't think there is a significant risk, assuming other defects yet to be published are not too severe.

I purchased my F43 at a good price in Gib and Mark purchased his boat too local to SCM for a good price, we have both managed to bring them back up to Spec.

Get the boat out to SCM, get the ice-maker working and we can supply the gin......!

Hope it all gets resolved very soon to your complete satisfaction....

 

[DazzyWoo]

my heart felt empathy. possibly grasping at straws, and bit 'ginned up' on my own boat - so may have missed the finer details (apologies)

But is the sellers / brokers failure to produce the docs an opportunity for you? Can you call their bluff ? I.e tell them you are going to complete, and demand paperwork on the deadline (but don't necessarily nag them for it in advance?). If they don't produce it, can it be argued they are in breach of contract ? If they produce it, one less headache, and you are no worse off?

Very interesting thread. Feel for you. Fwiw - I would walk, but maybe I'm not as savvy as some

dw

 

[TwoHooter]

... in bank-financed transactions that the lender's conditions for advancing the money must be things in your control or conditions precedent to completion of the contract.

I have always thought that one of the advantages of using a bit of borrowed money to buy things is that the lender will have a standard check-list of things they want, and absolutely no emotions about the deal. What this means in practice is that the lender is standing behind the buyer making sure that the buyer doesn't let his rose-tinted spectacles obscure the view. So when you buy a property using a mortgage you have to get a survey done and the title has to be right. OK, it's not a perfect system, and I have seen surveyors miss things (and lawyers too) but at least it is a bit of a brake on enthusiasm and sometimes one needs that. If I have understood this thread correctly the problem here is that the contract for this boat did not incorporate the lender's requirements which include a clean survey and correct original paperwork. Is that right? I think that if I was in this awful position I would be asking myself why the contract is not protecting me properly, and whose fault that is. I see that a marine lawyer was instructed. Forgive me for adding a possible red herring to a horrible situation, but if there is a loan, and the marine lawyer knew that, and he didn't make sure the contract is voidable if the boat violates the lender's requirements, then in theory it's the marine lawyer's PI cover that's going to have to carry the can. Yes, the thought of hiring another lawyer to sue the first doesn't exactly add to the boating pleasure, but this isn't about boats any more, it's about money.

 

[petem]

^^^ Nicely put.

 

[WorstCase]

Interesting JFM.

My marine lawyer disagrees with you - not saying you are wrong but I have two differing opinions from two people I respect.

There are other material defects which we have passed on and are summerized in an engineers report including significant damage to the generator and poorly maintained stern gear which. Perhaps not an issue but pre-contract discussions these items were offered as new.

I read the Italian only as I suspect it would be the only part of the contract taken into account in an eventual legal dispute, so I skip the comparisons.
The only reason for the seller to keep the deposit is a default by the buyer to complete the purchase within the established date. So for example assuming the buyer did not respond after the sea trial either way, after June 26 he could not claim the deposit back.
On the other hand, if after the sea trial and BEFORE June 26, the buyer stated in WRITING his intention to withdraw then the deposit has to be returned. Not specifying any reason that could constitute a cause for rejection means ANY reason is valid, but the intention not to proceed should be stated in writing and within the established dates. if this has been done you're in a "botte de fero" meaning no need of anything just tell them to quit f&$ing around. If you were late then unfortunately only option is to try to get some back maybe promising the broker you will buy from him another boat as 50% of the deposit would go to him as stated in point 17

Hope this helps.

 

[WorstCase]

Just saying it as I see it, not picking a fight, but for a boat that good at £62k be careful about rejecting it!
And one more thing. Might sound like manlogic but it is actually real. This boat is only costing you £59k. That is the money you are required to pay over in order to own it. The deposit is gone, and doesn't now feature in any buying analysis. If you reject this boat, how much more than £59k will you spend to get the same machine?
And extend that further - let's assume they do successfully sue you for €10k. You have to cut a check for £7k if you don't buy this boat. but not if you do buy it. So the cost - the net cash outflow to you - of buying this boat is really £52k. There is nothing this good at that price on the market

Makes perfect sense for someone actually wanting to buy a boat, which is the basic problem here.

 

[MapisM]

Not specifying any reason that could constitute a cause for rejection means ANY reason is valid

I must disagree on this point.
It's true that "Comprovato esito negativo" (of the survey) doesn't say HOW it should be "comprovato", but it does say that there must be some sort of valid reason.
That's what was poorly translated with the "not proven to fail" expression, and I previously revised as "substantiated reasons".
Whatever, I'm not saying that there isn't one - I couldn't be more far from it - but it can't be just a change of mind, as you seem to suggest.

Anyway, my understanding is that the semantic issue is now overtaken by events, and the problem only lies in what in Italy you would call the "articolo quinto", if you see what I mean...
And in this respect, I'm afraid Jez can't get much more help from this debate, ATM.

 

[WorstCase]

I must disagree on this point.
It's true that "Comprovato esito negativo" (of the survey) doesn't say HOW it should be "comprovato", but it does say that there must be some sort of valid reason.
That's what was poorly translated with the "not proven to fail" expression, and I previously revised as "substantiated reasons".
Whatever, I'm not saying that there isn't one - I couldn't be more far from it - but it can't be just a change of mind, as you seem to suggest.

Anyway, my understanding is that the semantic issue is now overtaken by events, and the problem only lies in what in Italy you would call the "articolo quinto", if you see what I mean...
And in this respect, I'm afraid Jez can't get much more help from this debate, ATM.

Yes correct, what I meant is ANY negative found in the survey, especially on items that were either not mentioned or mentioned to be in a different condition.
so the way I see it is very clear cut in favor of buyer under these circumstances and I would act accordingly meaning demanding firmly the money back and then go straight to Carabinieri. No need for arbitration, no need for lawyers. They will question the seller, that should do it.

I would do it before June 26.

 

[MapisM]

go straight to Carabinieri. No need for arbitration, no need for lawyers. They will question the seller, that should do it.

Sorry but again I must (wholeheartedly!) disagree.
You could and should involve the Carabinieri (=police) if there would be any kind of crime involved, i.e. if the money would have been stolen from a wallet or something.
What we have here is a deposit paid in the context of a signed contract, which in itself states that any dispute must be submitted to an arbitration court.
If you would show it to the Carabinieri pretending that they do something to recover your deposit, they would laugh - and rightly so, I'm afraid.

 

[Pinnacle]

Yes correct, what I meant is ANY negative found in the survey, especially on items that were either not mentioned or mentioned to be in a different condition.
so the way I see it is very clear cut in favor of buyer under these circumstances and I would act accordingly meaning demanding firmly the money back and then go straight to Carabinieri. No need for arbitration, no need for lawyers. They will question the seller, that should do it.

I would do it before June 26.

I am not sure if ITA is your mother tongue or not. I do know that ITA is the mother tongue of MapisM. Based on this, I would prefer to rely on his translation.

 

[WorstCase]

Sorry but again I must (wholeheartedly!) disagree.
You could and should involve the Carabinieri (=police) if there would be any kind of crime involved, i.e. if the money would have been stolen from a wallet or something.
What we have here is a deposit paid in the context of a signed contract, which in itself states that any dispute must be submitted to an arbitration court.
If you would show it to the Carabinieri pretending that they do something to recover your deposit, they would laugh - and rightly so, I'm afraid.

Fraud must be reported to the police, and what the circumstances describe is a fraud. Nothing to do with a contractual dispute.

For all contractual aspects, the referral to arbitration can always be surpassed by legal action, but in this case the problem is not the contract but the fact the party that HAS TO release the money is not, which is theft and should be reported to the police.
Who will not laugh but will call Mr. Stefano for questioning.