jfm
Well-known member
Re: Depends on the form of contract ..
Salami:
1. Re the comment above on specific performance - it's a nice idea but unlikely to work for practical reasons. The boat will likely be sold to someone else long before you could get a specific performance order from a court.
2. The YBDSA/ABYA terms may not help. There are various versions in circulation because brokers have it in soft copy, but I have pasted below a widely used version. If you have these terms, you might be in difficulty now. Unfortunately, they say that if seller does not fix the boat within 21 days, the contract is rescinded and you get your deposit back. I have complained before that this in effect gives the seller a put option, and is therefore totally outrageous. Unfortunately, the few times I have had this argument with brokers they think I'm being an awkward git. But you are where you are. If you have these terms, you have two options: either mention the survey defects and imho the seller will be able to pull out of the sale; or do not report any survey defects in which case you can demand performance under the contract and write saying you will sue etc as per my above post. But of course by taking the latter option you have to pay any repair costs
All depends on exact words of your contract. A lot of stuff doing the rounds is pretty badly drafted imho. Good luck
PASTE OF TERMS SEEN RECENTLY:
5 Defects
· Within 10 days after completion of such inspection and/or survey if any material defect or defects in the Vessel or its machinery, other than those disclosed to the Purchaser in writing prior to signing this agreement, shall have been found or if any material deficiencies have been found in any inventory hereto the Purchaser may give notice to the Vendor or the Broker specifying such material defects or deficiencies including a copy of the relevant extracts of the survey report, either:
(a) giving notice to the Vendor or the Broker of his rejection of the Vessel, or
(b) requiring the Vendor forthwith either to make good the recommendations of the Purchaser’s surveyor and to his satisfaction, or make a sufficient reduction in the purchase price to enable the Purchaser to make good the same. All agreed items of work shall be completed without undue delay in all the circumstances and shall be carried out so as to satisfy the expressly specified requirements of the Purchaser's sSurveyor in respect only of material defects mentioned in his report and notified to the Vendor.
If the Purchaser shall service notice under Clause 5(b) hereof, and
i. the Vendor shall not within 21 days after service of the notice have agreed to make good without delay any material defects or deficiencies specified in such notice or,
ii. the parties shall not have agreed within 14 days after service of the notice upon the amount by which the purchase price is to be reduced
then this Agreement shall be rescinded and any deposit paid shall be refunded in accordance with Clause 8 hereof.
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Salami:
1. Re the comment above on specific performance - it's a nice idea but unlikely to work for practical reasons. The boat will likely be sold to someone else long before you could get a specific performance order from a court.
2. The YBDSA/ABYA terms may not help. There are various versions in circulation because brokers have it in soft copy, but I have pasted below a widely used version. If you have these terms, you might be in difficulty now. Unfortunately, they say that if seller does not fix the boat within 21 days, the contract is rescinded and you get your deposit back. I have complained before that this in effect gives the seller a put option, and is therefore totally outrageous. Unfortunately, the few times I have had this argument with brokers they think I'm being an awkward git. But you are where you are. If you have these terms, you have two options: either mention the survey defects and imho the seller will be able to pull out of the sale; or do not report any survey defects in which case you can demand performance under the contract and write saying you will sue etc as per my above post. But of course by taking the latter option you have to pay any repair costs
All depends on exact words of your contract. A lot of stuff doing the rounds is pretty badly drafted imho. Good luck
PASTE OF TERMS SEEN RECENTLY:
5 Defects
· Within 10 days after completion of such inspection and/or survey if any material defect or defects in the Vessel or its machinery, other than those disclosed to the Purchaser in writing prior to signing this agreement, shall have been found or if any material deficiencies have been found in any inventory hereto the Purchaser may give notice to the Vendor or the Broker specifying such material defects or deficiencies including a copy of the relevant extracts of the survey report, either:
(a) giving notice to the Vendor or the Broker of his rejection of the Vessel, or
(b) requiring the Vendor forthwith either to make good the recommendations of the Purchaser’s surveyor and to his satisfaction, or make a sufficient reduction in the purchase price to enable the Purchaser to make good the same. All agreed items of work shall be completed without undue delay in all the circumstances and shall be carried out so as to satisfy the expressly specified requirements of the Purchaser's sSurveyor in respect only of material defects mentioned in his report and notified to the Vendor.
If the Purchaser shall service notice under Clause 5(b) hereof, and
i. the Vendor shall not within 21 days after service of the notice have agreed to make good without delay any material defects or deficiencies specified in such notice or,
ii. the parties shall not have agreed within 14 days after service of the notice upon the amount by which the purchase price is to be reduced
then this Agreement shall be rescinded and any deposit paid shall be refunded in accordance with Clause 8 hereof.
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