Reconditioned a legal term?

[Malabarista]

After a year of toiling on the boring bits (after work and weekends) I finally got around to the engine. Looks very lovely on the outside but after removing the air filter i noticed that there was a significant amount of rust on the turbo blades. I called in a marine engineer and together we looked around and came to the conclusion that the chances that this engine was ‘reconditioned in 2016’ ( as stated on the selling particulars) was virtually zero. So we hauled the engine out, put it on a test bench and it was thoroughly tested. Upon removing the flywheel cover my marine engineer was soaked by rusty seawater ( tasted) and as every bolt and nut he attempted to undo was either seized or very evidently undisturbed in recent years it appears that no way has it been ‘reconditioned’.
Some of you may remember that i bought the boat a little over a year ago. My question to you learned lot is …do i have any recourse against the seller after this much time?
I have been advised that the yanmar 4JH3TE engine is completely FUBARED and BER to boot. With secondhand/reconditioned and new engines costing large wedges of beer tokens i am interested in finding out if there is anything i can do apart from suck it up and start saving.
Thanks for reading
Dave

 

[Tranona]

No legal definition. If you bought the boat privately you have no recourse to the seller. It was up to you to determine whether the boat was as described and suitable for your purpose. It would have been sensible if the engine was claimed to be recently reconditioned, to demand sight of a schedule of the work actually done. Evidence such as who did it, a list of parts replaced, tests carried out on completion and an invoice for the work. Personally I would not have bought a boat with that description without such evidence that I could independently check

Sounds harsh but that is the risk of buying privately. Caveat Emptor.

Perhaps I should balance it a bit by saying there are circumstances where you might have recourse to a private seller if he had deliberately lied, and for example the engine had failed immediately after the transfer. Whether you would be successful would depend on the facts and evidence. But one year of further use, not a chance.

 

[rotrax]

After a year of toiling on the boring bits (after work and weekends) I finally got around to the engine. Looks very lovely on the outside but after removing the air filter i noticed that there was a significant amount of rust on the turbo blades. I called in a marine engineer and together we looked around and came to the conclusion that the chances that this engine was ‘reconditioned in 2016’ ( as stated on the selling particulars) was virtually zero. So we hauled the engine out, put it on a test bench and it was thoroughly tested. Upon removing the flywheel cover my marine engineer was soaked by rusty seawater ( tasted) and as every bolt and nut he attempted to undo was either seized or very evidently undisturbed in recent years it appears that no way has it been ‘reconditioned’.
Some of you may remember that i bought the boat a little over a year ago. My question to you learned lot is …do i have any recourse against the seller after this much time?
I have been advised that the yanmar 4JH3TE engine is completely FUBARED and BER to boot. With secondhand/reconditioned and new engines costing large wedges of beer tokens i am interested in finding out if there is anything i can do apart from suck it up and start saving.
Thanks for reading
Dave

Small claims court, lots of photo's and your ME to do a written report.

If it is as you say, and you imply the vessel has not been used, I suspect a SCC would find in your favour.

If it was a private sale you go after the vendor direct.

If through a Broker, he must bear some blame for not carrying out due dilligence.

IIRC the basic tenet of the sale of goods act is that they must be fit for their intended purpose and of satisfactory quality.

The advertising seems suspect here-a word with your local trading standards office might be free-if you consult a solicitor it will cost.

I have been on the wrong end of a SCC accused of supplying duff goods. In my case it was soon proved that I had not, but that my customer had unrealistic expectations from a 50 year old cheap classic bike in unrestored origonal condition.

The process, from the little I have to go on from your post, would I believe work for you.

Give it a punt-its the most cost effective way.

 

[Tranona]

Small claims court, lots of photo's and your ME to do a written report.

If it is as you say, and you imply the vessel has not been used, I suspect a SCC would find in your favour.

If it was a private sale you go after the vendor direct.

If through a Broker, he must bear some blame for not carrying out due dilligence.

IIRC the basic tenet of the sale of goods act is that they must be fit for their intended purpose and of satisfactory quality.

The advertising seems suspect here-a word with your local trading standards office might be free-if you consult a solicitor it will cost.

I have been on the wrong end of a SCC accused of supplying duff goods. In my case it was soon proved that I had not, but that my customer had unrealistic expectations from a 50 year old cheap classic bike in unrestored origonal condition.

The process, from the little I have to go on from your post, would I believe work for you.

Give it a punt-its the most cost effective way.

That is bad advice. The SOGA and its successor the Consumer Rights Act 2015 do not apply to transactions between private individuals. That is a fundamental difference between sales by way of trade (trader to consumer) and private sales.

If any action could be taken, it would have to be for fraud or misrepresentation, both of which are difficult to prove in most cases and probably impossible after a year - whether the engine has been used or not. The failure is on the buyer's (or his professional advisers) side to check thoroughly that such an important claim was true.

 

[Sneaky Pete]

I would think you have some responsibility to ensure all was well after your purchase. You may have some kind of recourse after say 3 months but not a year. It may be time to see what can be salvaged and a crash course on engine refurbishment. I would not entertain anyone who came back after a year with something that was not working.

 

[pcatterall]

Do I understand that the engine did not run ? if it did how well did it start and what did it sound like and did it smoke?
If it has never started and will never start in the state it was in then I would be wanting to have a go at the seller.
Sometimes a reconditioned engine may have had the main working engine part completely reconditioned but the owner
may have been responsible for refitting the auxiliary parts back on, so these items could well be in a poor looking state.
The small claims process has worked well for me in the past.

 

[Malabarista]

No legal definition. If you bought the boat privately you have no recourse to the seller. It was up to you to determine whether the boat was as described and suitable for your purpose. It would have been sensible if the engine was claimed to be recently reconditioned, to demand sight of a schedule of the work actually done. Evidence such as who did it, a list of parts replaced, tests carried out on completion and an invoice for the work. Personally I would not have bought a boat with that description without such evidence that I could independently check

Sounds harsh but that is the risk of buying privately. Caveat Emptor.

Perhaps I should balance it a bit by saying there are circumstances where you might have recourse to a private seller if he had deliberately lied, and for example the engine had failed immediately after the transfer. Whether you would be successful would depend on the facts and evidence. But one year of further use, not a chance.

Thanks for such a speedy reply Tranona. The engine worked as expected on the sea trial apart from the morse type control lever which was very hard to move in or out of gear. I would estimate that we have used the engine for less than ten miles in total since purchase. I have been busy working to clean, paint and generally de-gunge her both on a mud berth and now on the hard since we took ownership. Basically delivery to Rye and nothing else. I should have made that clear in my original post. In the particulars given to us by the broker the engine was reconditioned that same year. I agree that we should have demanded receipts however as we had seen photos of the engine being lifted out ( when it was seemingly resprayed and put back in) we accepted the word of the PO. There is of course the possibility that he was as unaware of the true state of the engine internals as us.

 

[pandos]

Surely the question is whether or not there was a misrepresentation. This is answered by the op, he was told the engine was reconditioned, it appears not to have been,

There seems to have been at least an innocent misrepresentation... no need to go to the point of proving fraud....

look at this link for some insight.http://www.allenovery.com/publicati...-available-if-rescission-is-possible-too.aspx or the Mis Rep act 1967.

caveat emptor only goes so far, .if there are no questions asked then it applies with a vengeance..but
if you are told something you are entitled to rely on it, if you do and it turns out to be false you are entitled to damages...

The damages it would seem are the cost of getting the engine overhauled....or if not possible the cost of fitting a reconditioned engine. (not the price of a new engine).. If I was you i'd have a rattle off the seller and his broker, start by writing to them and let them know the issue and ask for their comments....

good Luck

 

[ithet]

Tranona has pretty well summed it up. You could get advice from the RYA legal department if a member. I contacted about an issue that came to light post purchase and was told that even if the vendor had known I would be unlikely to have recourse. Was also told that the brokers as agents for the seller are not obligated to tell you anything they know.

After a year I am sure you are deemed to accepted the engine anyway.

 

[Poecheng]

There is (TTBOMK) no precise meaning of 'reconditioned' in relation to marine engines. That said, it is not always necessary to have a precise meaning for representations and it is not always necessary to prove precisely what was meant; if on any reasonably meaning the representation is false (untrue) then it is a misrepresentation. We can all agree that a 'reconditioned engine' does not mean just an oil and filter change - it means far more than that but where it stops is not clear and is probably determined by the prior condition of the engine. Perhaps it is best defined by the result rather than what has been replaced; it is an engine that has been checked to be, or has been put into, manufacturer's tolerances and all worn or used parts replaced or placed within tolerances. (I am sure this could be improved with a bit of thought).

On the account you have provided, the engine has not been reconditioned and seemingly there has been no attempt to do so.

Is it an actionable misrepresentation?
a) For myself, I am not put off by the time since purchase since there is no time limit (other than the limitation period which is irrelevant at the moment) but the sooner the better; not all misrepresentations can be discovered immediately and this is such an example. You would not break down the engine to check it had been reconditioned, you find out whether it has the hard way.
b) More important is the contract itself as you may find that you have stated in the written contract that you are not relying on any pre-contractual representations. THis may be one of those pre-contractual representations that you waived away in writing. So it would be important to know when the representation was made, who by and whether it is set out in the written particulars (often appended to the contract for purposes of inventory) and whether it appears in the written contract (unlikely)

If it is actionable, in that it is a misreprentation upon which you relied and, upon that reliance have suffered loss, then you have a case. There is no need to prove fraudulent misrepresentation (the seller may him or herself have been duped) and it is permissible to allege innocent misrepresentation. The court can award damages which ordinarily would be what it would cost to put you in the position you believed you had been placed.

You will need an expert report from your engineer (supported by photographs where possible) and you need to get in contact with the seller soon so they have the opportunity to examine the engine expertly as well (whether they wish to do so is up to them) and then you would issue the claim in the Small Claims Court as this is likely more than enough (£5k limit) and you are protected in respect of costs.

I have made it sound easy but you need to check your written contract of sale. DOn't allege matters (eg fraud) which you very likely cannot prove. On what you have said so far, I would not 'bin it yet.

 

[Flica]

Tranona has it in a nutshell.

If you didn't, at the time, check what was covered by the term "reconditioned", trying now is throwing good money and effort after bad.
Put it down to experience....

 

[earlybird]

I'm inclined to go with Tranona's remarks, with the caveat that the Broker might bear some responsibility if he repeated the vendor's claim that the engine had been reconditioned, I really can't say on that one.
However, you say that the engine ran satisfactorily when you took ownership, but now, a year later, it is beyond economic repair. During that year a significant quantity of water entered the engine, which presumably happened sometime during your period of ownership, and also presumably is responsible for considerable deterioration of the engine's condition.
Sorry, but I think that this scuppers any claim that you might otherwise have had.

 

[Poecheng]

Tranona has it in a nutshell.

If you didn't, at the time, check what was covered by the term "reconditioned", trying now is throwing good money and effort after bad.
Put it down to experience....

WIth respect, I don't agree.
Firstly caveat emptor does not trump misrepresentation.
Secondly, a purchaser is not obliged to check whether a representation is correct or not. They may be unwise not to or it may be impossible to do so but they are entitled (subject to the contract) to rely on that representation. Put another way, there is no requirement to check a representation is correct - were that the case there could never be a case ever for misrepresentation since the original representation would be replaced by one's own knowledge.
THirdly, we are not talking about fine distinctions within reasonable meanings of the word 'reconditioned'; if OP believed that meant new bushes in the alternator then he should have checked since not everyone would agree that was within the definition. What we are talking about is something that, if the engineer is correct, is entirely without the definition of 'reconditioned'.
So, if the representation was made, if it was not later excluded by the contract (and that may not be determinative), if the OP relied upon the representation, if the representation can be shown to be false and, in reliance upon it the OP has suffered loss then is there not a claim?

 

[Flica]

WIth respect, I don't agree.
Firstly caveat emptor does not trump misrepresentation.
Secondly, a purchaser is not obliged to check whether a representation is correct or not. They may be unwise not to or it may be impossible to do so but they are entitled (subject to the contract) to rely on that representation. Put another way, there is no requirement to check a representation is correct - were that the case there could never be a case ever for misrepresentation since the original representation would be replaced by one's own knowledge.
THirdly, we are not talking about fine distinctions within reasonable meanings of the word 'reconditioned'; if OP believed that meant new bushes in the alternator then he should have checked since not everyone would agree that was within the definition. What we are talking about is something that, if the engineer is correct, is entirely without the definition of 'reconditioned'.
So, if the representation was made, if it was not later excluded by the contract (and that may not be determinative), if the OP relied upon the representation, if the representation can be shown to be false and, in reliance upon it the OP has suffered loss then is there not a claim?

A most lawyerly representation.
I'm sure you'd be glad to act on behalf of the OP - no result, no fee?

 

[oldgit]

Get it fixed and go boating.....?
Decide if you want to pursue the matter later.
Its going to cost you time and money and aggravation, with a very good chance of failure.
If the claim is contested you will have to attend the hearing and the defendant may ask to have the claim heard in his local court.
You will probably have to enter a written statement from the engineer and he will need to prove his credentials to back up his statement , and what if the vendor mysteriously produces invoices proving some work was done.
Has the bloke got any money anyway ?

 

[RichardS]

I'm a great advocate of going to small claims having done it successfully several times ....... but I'm afraid that I agree with Tranona.

"Reconditioned" does not mean anything and the previous owner could say that they took the rocker cover off, reset the valve clearances, put on a new gasket and changed all the filters. The judge/recorder would be hard pressed to rule that this does not constitute reconditioning, even though it might well be a very mild version.

If you have a list of what was supposedly replaced provided by the vendor at the time of sale and you can get an engineers report to confirm that the items on the list were definitely not replaced, then you would be in with a chance ..... but even then after 12 months you're going to need a very good report, a very sympathetic judge and a following wind.

Richard

 

[garvellachs]

After a year of toiling on the boring bits (after work and weekends) I finally got around to the engine. Looks very lovely on the outside but after removing the air filter i noticed that there was a significant amount of rust on the turbo blades. I called in a marine engineer and together we looked around and came to the conclusion that the chances that this engine was ‘reconditioned in 2016’ ( as stated on the selling particulars) was virtually zero. So we hauled the engine out, put it on a test bench and it was thoroughly tested. Upon removing the flywheel cover my marine engineer was soaked by rusty seawater ( tasted) and as every bolt and nut he attempted to undo was either seized or very evidently undisturbed in recent years it appears that no way has it been ‘reconditioned’.
Some of you may remember that i bought the boat a little over a year ago. My question to you learned lot is …do i have any recourse against the seller after this much time?
I have been advised that the yanmar 4JH3TE engine is completely FUBARED and BER to boot. With secondhand/reconditioned and new engines costing large wedges of beer tokens i am interested in finding out if there is anything i can do apart from suck it up and start saving.
Thanks for reading
Dave

Surely the first step is to ask the previous owner (PO) about what he meant by "reconditioned". Presumeably a professional did the work, so the PO should be able to tell you who did it. A chat to them would be interesting. If the PO is evasive then you might begin to think you might have been mis-led.
Has the engine been run since delivery a year ago? With salt-water inside the bell-case for 12 months, the engine will have deteriorated markedly over that year. How did that seawater get there? Is it raw water cooled? Has sea-water got into the engine itself? Is that why the turbo blades are corroded? When and why might that have occured?
Lots more things to find out before going to court I would think?

 

[pandos]

I'm a great advocate of going to small claims having done it successfully several times ....... but I'm afraid that I agree with Tranona.

"Reconditioned" does not mean anything and the previous owner could say that they took the rocker cover off, reset the valve clearances, put on a new gasket and changed all the filters. The judge/recorder would be hard pressed to rule that this does not constitute reconditioning, even though it might well be a very mild version.

If you have a list of what was supposedly replaced provided by the vendor at the time of sale and you can get an engineers report to confirm that the items on the list were definitely not replaced, then you would be in with a chance ..... but even then after 12 months you're going to need a very good report, a very sympathetic judge and a following wind.

Richard

clearly "Reconditioned" means something, as it was intended to mean and did actually convey the OP and would have been conveyed to any other reasonable purchaser, what you describe is at best a service.

thus my point in writing to the broker and seller and raising the point with them, if they want to suggest that simply painting the engine amounts to reconditioning then that is their point to make, if they say that it was a full strip and rebuild then that is easily disproved, they may well be equally surprised but nonetheless the seller is the maker of the misrepresentation, whether made by himself or his agent and is the one liable....

At least give them the chance to comment and to see the engine before doing anything more, you might be pleasantly surprised

good luck.

 

[Tranona]

WIth respect, I don't agree.
Firstly caveat emptor does not trump misrepresentation.
Secondly, a purchaser is not obliged to check whether a representation is correct or not. They may be unwise not to or it may be impossible to do so but they are entitled (subject to the contract) to rely on that representation. Put another way, there is no requirement to check a representation is correct - were that the case there could never be a case ever for misrepresentation since the original representation would be replaced by one's own knowledge.
THirdly, we are not talking about fine distinctions within reasonable meanings of the word 'reconditioned'; if OP believed that meant new bushes in the alternator then he should have checked since not everyone would agree that was within the definition. What we are talking about is something that, if the engineer is correct, is entirely without the definition of 'reconditioned'.
So, if the representation was made, if it was not later excluded by the contract (and that may not be determinative), if the OP relied upon the representation, if the representation can be shown to be false and, in reliance upon it the OP has suffered loss then is there not a claim?

While both this and your previous post are correct (except that Small Claims limit is now £10k), we really do not know enough about the details of the case. For example, we have not seen the details of the boat where the claim about the engine was made, nor about any discussions involving vendor, broker, surveyor etc about the engine, nor the surveyor's report. The only information is that the buyer accepted the vendor's claim without asking for evidence, and carried out a trial before completion. Presumably this satisfied him that the engine was serviceable such that he motored successfully to his new berth. Now, a year later he has discovered faults which suggest no work has been done on the engine. However, it would need a strip down to determine the true state of the engine.

Not questioning the principle that there could have been misrepresentation, as I said in the first response, just the difficulty based on what is known, of building a convincing case.

 

[Malabarista]

Small claims court, lots of photo's and your ME to do a written report.

If it is as you say, and you imply the vessel has not been used, I suspect a SCC would find in your favour.

If it was a private sale you go after the vendor direct.

If through a Broker, he must bear some blame for not carrying out due dilligence.

IIRC the basic tenet of the sale of goods act is that they must be fit for their intended purpose and of satisfactory quality.

The advertising seems suspect here-a word with your local trading standards office might be free-if you consult a solicitor it will cost.

I have been on the wrong end of a SCC accused of supplying duff goods. In my case it was soon proved that I had not, but that my customer had unrealistic expectations from a 50 year old cheap classic bike in unrestored origonal condition.

The process, from the little I have to go on from your post, would I believe work for you.

Give it a punt-its the most cost effective way.

Thanks Rotrax. I believe i shall.