From disspointing to infuriating and beyond

[AllanG]

From my experience, if the engine oils were changed just a 'few hours' ago by the current owner, this would be very evident when taking the oil samples for analysis, as the oils should look 'as new', though this is more difficult to ascertain with gearbox oil due to lack of combustion contaminates. Therefore, do you know if the engine oils looked 'as new', or were they dark in colour? This basic information would be useful in determining if the owner is telling 'porkies'!

 

[John100156]

Read through the reports Jez and I think taking everything into consideration, I too would walk away from this one, just doesn't feel right.

Before I bought my F43 I looked at a Pearl and then a Phantom, both seemed good buys but after survey I walked away, on both occasions deposits were returned with no fuss, the former in the UK and the latter in Spain - both having lesser problems than you have found. I think the brokers (in)actions in this matter are scandalous, you have already incurred enough expense, time to stop throwing good money after bad I think, unfair and very frustrating/upsetting indeed.

 

[Whitelighter]

No danger of me buying this wreck John.

Would like to get my deposit back though (since as far as I can determined im owed it)

 

[John100156]

IMO it is totally deserved Jez, they should not be allowed to get away with this but as we (and they) well know, it is likely to be a hard fight. I for one would love to see you win this one. My very best wishes - nil nisi illegitimi carborundum....!

 

[MapisM]

Then there is the contract, checked my a marine lawyer in the UK and a native Italian both of whom saw no major flaws.
JFM disagrees here and frankly he knows way more than I so I have to put some store in what he says.

Jez, just for for sake of clarity: when I had a look at the MOA, I did it more along the lines of a formal/language check, rather than of its substantial content.
And in this respect, I still see no relevance at all in the (admittedly poor, but not distorted) translation, vs. the outcome that is being debated.
Btw, as you probably remember, I suggested to include a clause stating that in case of any dispute, even if they would have never accepted anything else than an IT jurisdiction, you might have asked that the reference version should be the EN one.
Then again, also in hindsight, I don't think that this would have made any difference, because that has nothing to see with the real reason why that guy is not refunding your deposit.

Mind, I'm saying this just to put in perspective the opinion I gave you on the MOA, which was not from a "content flaws" perspective.
But don't read this as an excuse, by all means.
It's rather the opposite, because in hindsight I must agree with jfm when he qualifies the silence on the seriousness of a defect permitting rejection as a "major flaw".
I could and should have spotted that, regardless of the language, and my only (partial) justification is that it's been a while since I dealt with legal stuff and contracts for a living.
Years ago, when I used to lose my sleep over senior (or mezzanine/subordinated/whatever) agreements, I don't think I would have missed such a critical point - though that's no consolation for yourself, obviously.
But if your lawyer insists that this is irrelevant, well, fwiw I don't agree with him, and you can now count also myself as a supporter of jfm view on the whole matter.

There's one last (but crucial!) consideration, anyway: I don't think anything of the above could have made any significant difference, at the end of the day.
In fact, the one and only real reason why that folk is not refunding your deposit is quite simply that he prefers to keep it in his pockets, aware as he is that it's not easy for you to get it back.
And no better/more accurate MOA wording could have changed that.

Don't get me wrong, I'm reasonably sure that your chances to win if you would decide to go legal are very high, because no Arbitration Court worth its salt could deny the evidence of your reasons to reject the boat.
After all, Italy still is a civilised Country, against all odds.
Trouble is, sadly, that not all its Citizens are.
In this respect, while I still disagree with WorstCase suggestion of involving the Police, who couldn't and shouldn't do anything, he couldn't have expressed my own feelings better than with his last sentence in post #117.

 

[Gentlemanracer]

I could see the argument that a high moisture content would not prohibit beneficial use, so its presence might not succeed as sufficient reason for rejection. The sea trial experience, report and tech analysis show the boat's machinery condition to be so poor that it should not be relied upon until repairs are made. This is a far more substantive argument for rejection. From what I see, it is simply not possible to reconcile the sellers / brokers claims with evidence acquired as might substantiate their assertions regarding adequate condition. Should a rejection argument on these grounds be set to fail under terms of the contract, then surely we'd have conspiracy to fraud? Balancing low price against "things to put right" is to my mind intrinsic to the deal, with survey results inevitably informing the basis of a deal. The extent of necessary works in this case (to me) is a material consideration; were it being offered as a project then the reports would demonstrate and support that, but as the boat is being offered as fit for use but is demonstrably not fit for use, the honest disposal route would be auction. Now, whats it worth?

 

[Greg2]

I have no knowledge about criminal law in Italy or how the police operate there but fwiw the circumstances probably wouldn't amount to 'fraud' in the UK because the money wasn't obtained as a consequence of any deception. However, retention of monies that doesn't belong to you may be theft but it might be difficult to show dishonestly (an element of theft) given that the Broker will say that he is simply acting in accordance with his interpretation of the contract. Reality is that in the UK it would probably be regarded as a 'civil debt' and not something for the police to become involved with.

 

[WorstCase]

I have no knowledge about criminal law in Italy or how the police operate there but fwiw the circumstances probably wouldn't amount to 'fraud' in the UK because the money wasn't obtained as a consequence of any deception

Difference in wording between italian and english is substantial (seen in the light of the events that followed) and configures in my opinion the fraudulent intention of seller and broker to do what they did: collect the deposit and never return it. Had the buyer decided to proceed with the purchase and given the condition of the boat as per survey result they would have had an amazing deal. Any negotiation on a possible price reduction would have been ruled out thus leading the buyer to back down from the purchase, thus, according to their contract, "failing to perform" and resulting in them keeping the money. Win win for them. This is my OPINION it doesn't mean it's reality, but one can substantiate reporting to the police on this ground. IMHO. The low but still not realistic price can also substantiate fraud as it is meant to lure people into leave a deposit.

The intention to fraud is very realistic. Assuming one could find other people who were caught in the same situation with the same broker and/or seller then it would be very easy to argue that this is a system to fraud (scam). 4300x10 it's 43000...

BTW, I really wish to thank Jez for sharing this. As far as I am concerned on my (probable) future dealings: NO DEPOSIT. Seller doesn't like? TOOOOOOO BAAAAAD. This is what a buyers' market is for.

 

[crazy4557]

'In fact, the one and only real reason why that folk is not refunding your deposit is quite simply that he prefers to keep it in his pockets, aware as he is that it's not easy for you to get it back.'


Finally Mapis has pointed the true reason for withholding the deposit. We can debate this until the cows come home but this scallywag broker knows that for you to retrieve the deposit through the legal system is all but impossible.
I really think that it's time to name and shame for the sake of other buyers looking in Italy and who could suffer the same fate.

Jez, time to put this behind you and not procrastinate as you will eventually forget but it will take a while. I'm sorry to read this saga but not surprised as I used to buy a lot of goods from Italy but gave up 15 years ago due to so many immoral thieves who purport to be professional businessmen.

 

[Whitelighter]

Jez, just for for sake of clarity: when I had a look at the MOA, I did it more along the lines of a formal/language check, rather than of its substantial content.
And in this respect, I still see no relevance at all in the (admittedly poor, but not distorted) translation, vs. the outcome that is being debated.
Btw, as you probably remember, I suggested to include a clause stating that in case of any dispute, even if they would have never accepted anything else than an IT jurisdiction, you might have asked that the reference version should be the EN one.
Then again, also in hindsight, I don't think that this would have made any difference, because that has nothing to see with the real reason why that guy is not refunding your deposit.

Mind, I'm saying this just to put in perspective the opinion I gave you on the MOA, which was not from a "content flaws" perspective.
But don't read this as an excuse, by all means.
It's rather the opposite, because in hindsight I must agree with jfm when he qualifies the silence on the seriousness of a defect permitting rejection as a "major flaw".
I could and should have spotted that, regardless of the language, and my only (partial) justification is that it's been a while since I dealt with legal stuff and contracts for a living.
Years ago, when I used to lose my sleep over senior (or mezzanine/subordinated/whatever) agreements, I don't think I would have missed such a critical point - though that's no consolation for yourself, obviously.
But if your lawyer insists that this is irrelevant, well, fwiw I don't agree with him, and you can now count also myself as a supporter of jfm view on the whole matter.

There's one last (but crucial!) consideration, anyway: I don't think anything of the above could have made any significant difference, at the end of the day.
In fact, the one and only real reason why that folk is not refunding your deposit is quite simply that he prefers to keep it in his pockets, aware as he is that it's not easy for you to get it back.
And no better/more accurate MOA wording could have changed that.

Don't get me wrong, I'm reasonably sure that your chances to win if you would decide to go legal are very high, because no Arbitration Court worth its salt could deny the evidence of your reasons to reject the boat.
After all, Italy still is a civilised Country, against all odds.
Trouble is, sadly, that not all its Citizens are.
In this respect, while I still disagree with WorstCase suggestion of involving the Police, who couldn't and shouldn't do anything, he couldn't have expressed my own feelings better than with his last sentence in post #117.

Yes sorry M, I should have said you were just checking the italian translation

 

[MapisM]

Difference in wording between italian and english is substantial (seen in the light of the events that followed) and configures in my opinion the fraudulent intention

Hang on a minute, which difference? I hate to debate this further, because going round in circles gets us nowhere..
But as I already said this in my post #108, the only thing that in hindsight you could read as purposedly made with the intent to scam a buyer is the lack of specific rejection reasons.
Which is something absolutely clear in both languages.
If there is an EN wording problem, it's that the translation wasn't obviously made by a professional, and it's more an attempt to translate literally from the IT, from someone who knows close to nothing about the proper EN legalese.
How you can think that this could convince the police to get out of bed, that's beyond my understanding.
But I'll tell you what. If J would ask me to go to the nearest Carabinieri station and show them the MOA, explain the situation and hear what they can do about it, I'm available to do it.

 

[MapisM]

Yes sorry M, I should have said you were just checking the italian translation

No need to be sorry J - I am instead, for all the above reasons.

 

[bigwow]

'In fact, the one and only real reason why that folk is not refunding your deposit is quite simply that he prefers to keep it in his pockets, aware as he is that it's not easy for you to get it back.'



I really think that it's time to name and shame for the sake of other buyers looking in Italy and who could suffer the same fate.

.

+1 Name and shame, perhaps then the broker might see that short time gain may be cost him in the long term.

 

[Whitelighter]

If it comes to it I will name and shame.

He still is reviewing the engineers report though I hold little hope that he will accept the findings.
We have given him a demand for return of the deposit which he hasn't refused although he's already saying our findings aren't valid and will only accept them if a second set are taken (by them) and tested in Italy.

 

[Nick_H]

and will only accept them if a second set are taken (by them) and tested in Italy.

That's progress isn't it? Ask him to confirm in writing that if the tests in Italy say broadly the same as the tests you've already had done, then he'll return your deposit. How much is a new set of oil samples in Italy? Quite a lot less than the deposit I'd imagine, and you'd probably spend the same in lawyers fees to keep arguing anyway.

 

[Croftie]

We have given him a demand for return of the deposit which he hasn't refused although he's already saying our findings aren't valid and will only accept them if a second set are taken (by them) and tested in Italy.

I know you probably won't but you went down this route I would suggest you would only agree if you were there when the samples are taken, Split into sealed jars so you have a second sample and you stay until the Italy sample is couriered off the lab. Sure you have already thought this but just saying....

 

[WorstCase]

Hang on a minute, which difference?

Art 13.
"Agreement: this contract is subject to the inspections referred to in paragraph (12) and to the completion of which the Buyer must notify in writing the acceptance or the refusal to buy OR NOT PROVEN TO FAIL, in which case this contract will terminate and the deposit will be returned to the Buyer"

This is what is written in the English part. Which means that the Buyer can say "no thank you" and walk away with his money.

The Italian version says something very different which is why there is even a discussion on whether the money should be returned or not. the English should have been something like this:
"Agreement: this contract is subject to the inspections referred to in paragraph (12) and to the completion of which the Buyer must notify in writing the acceptance or the refusal to buy BASED ON SUBSTANTIATED FAILED INSPECTION RESULTS, in which case this contract will terminate and the deposit will be returned to the Buyer" This is an open ended clause which, as always, leads to a dispute. Who decides whether inspection is failed or passed, based on what criteria? Exaaactly.

Thing is, interestingly enough, the "mistake" in translation happened right on the single most important bit of the whole contract. By chance? The only thing the translator didn't know how to put in English?
Nothing personal and I don't think anyone would have guessed things would go this way simply reading the contract, but now, knowing what happened, substantiating a report could be done on this basis, as the difference in translation can be deemed intentional and directed to mis-represent the contract to the Buyer with the plan of enacting a fraud, which given the current actions of the broker/seller seems to be quite realistic as a scenario.

In any case OP is being advised legally so whether this is or not the course of action to be taken it is better for them to decide. I simply stated what I would do if I were in the same situation.

 

[Whitelighter]

That's progress isn't it? Ask him to confirm in writing that if the tests in Italy say broadly the same as the tests you've already had done, then he'll return your deposit. How much is a new set of oil samples in Italy? Quite a lot less than the deposit I'd imagine, and you'd probably spend the same in lawyers fees to keep arguing anyway.

Well of sorts. Except he will take the samples. How do I know it comes from Even that boat? He also says he won't launch the boat and run it to temp so even if he takes oil from the boat it will be cold and unmixed so heavy particles will be at the bottom?

 

[KevB]

so heavy particles will be at the bottom?

If they push the oil sucker to the bottom which is what we all do, that's the oil they will analyse?

 

[Whitelighter]

If they push the oil sucker to the bottom which is what we all do, that's the oil they will analyse?

Yes if they do it properly then fine.

I'm not sure it's in there interest to do that. Theyve ready demonstrated they really don't want to return the deposit so why not just take the oil from somewhere else. Or do an oil change first.