Reconditioned a legal term?

[pandos]

,
There no case for misrepresentation, the PO in good faith sold his boat believing the engine had been reconditioned.
Unless the PO him self was a engineer or even if he was unless he was standing over Mr Blog he wouldn't be any wiser .
Once again especially as the OP agree the engine was fine and working how it should .?

You are wrong in this point.

Even if the seller was acting in good faith, there is a case for misrepresentation but not fraud or deceit, it is innocent misrepresentation,

The test is whether the seller's representation was false or not..., it is not necessary that he knew he what he was saying was false at the time of making the representation....

Tony.

 

[sailaboutvic]

We don't know that a Mr Blog even exists.

The vendor will have to present evidence to counter the opinion of a respected engineer who works for one of the biggest Yanmar dealers in the country. At least an invoice detailing the work carried out and a schedule of parts replaced then results of any tests carried out on completion.

You keep on looking at it from a negative point of view. The OP will present his claim in a way that puts him in the right, and the the vendor has to challenge the claim with better evidence. The history suggests he will not be in a position to do this.

The contract between the vendor and Mr Blog (if he even exists) is irrelevant. This is a case of misrepresentation by the vendor (and possibly the broker) as it is they who made the claim that the engine had been "reconditioned" - and did it voluntarily, not even as a result of the buyer asking the question! Why would they make the claim unless they thought it would encourage somebody to buy or pay a higher price?

You forgoton to comment on this part .

{The other point is that the time delay is very relevant , say his report find that the rings are broken or the shaft is scored , what to say it wasn't done while the PO had it in his ownership , just a short run without oil will kill a engine}

Of cause I looking at the other side of the argument , it's what the PO going to be doing if it ever got to court ,
If Dave want any chance of winning a case he too need to look at both side .
Why waste more time and money when there a possibility that the PO has employed someone to do the job .
YES I know we don't know that , we also don't know if there any thing at all wrong with the engine .

 

[sailaboutvic]

You are wrong in this point.

Even if the seller was acting in good faith, there is a case for misrepresentation but not fraud or deceit, it is innocent misrepresentation,

The test is whether the seller's representation was false or not..., it is not necessary that he knew he what he was saying was false at the time of making the representation....

Tony.

Tony you can't be accused of misrepresenting if you haven't and if the PO believes he payed out to have the engine recon then he has every right .
I sell you a car in good working order a weeks later the wheel falls off , how can I be accused of misrepresention , the car was in good working order when I sold it to you .
God if that was the case , we all be in court with claims .

 

[lw395]

As I see it, the delay is a killer, particularly since the OP hasn't looked after the engine properly in that time, leaving it under a tarpaulin.

I think any reasonable person who was going to rely on the vendor's description of the engine as 'reconditioned' would ask for documentation at the time.
It's like if you buy a car which claims a FSH, you expect to be shown the history at the time.

We've seen zero to suggest that the OP has suffered a loss due to whatever repair was or was not done to the engine. The engine ran OK when he bought it, with some faults in ancillaries. Then he neglected it.
Now there is no evidence that there is a fundamental fault with the engine, let alone that any fault would have been prevented by the seller reconditioning the motor.

We have a process for 'civilians' to buy and sell boats. That is the buyer uses whatever experts and/or sea trials he cares to pay for. Then a deal is done. There is no ten year warranty.

 

[sailaboutvic]

You are wrong in this point.

Even if the seller was acting in good faith, there is a case for misrepresentation but not fraud or deceit, it is innocent misrepresentations

The test is whether the seller's representation was false or not..., it is not necessary that he knew he what he was saying was false at the time of making the representation....

Tony.

Here another case .
I advertise and iPad , new batteries, you buy it a week later the batteries dies , I can now prove Mr apple as replaced the batteries , do you really think you can sue me for misrepresentations and win .

 

[pandos]

Tony you can't be accused of misrepresenting if you haven't and if the PO believes he payed out to have the engine recon then he has every right .
I sell you a car in good working order a weeks later the wheel falls off , how can I be accused of misrepresention , the car was in good working order when I sold it to you .
God if that was the case , we all be in court with claims .

Well if you represented that the wheel was fitted properly on new studs, and if the wheel fell off because the studs were old and rotten, or if the incorrect nuts had been used then you would have misrepresented the state of the car, if you thought this work had been done it would be an innocent misrepresentation, if you knew it was a false claim then it would be fraudulent.

If you said to me there is the car I think it is a good car but have a look yourself.... then you would be safe. Just as would be the original seller of the boat if he had not made a positive statement that the engine had been reconditioned in 2016..

If you routinely represent things about engines that are not true then you do risk being in court with claims.

 

[steveeasy]

You are wrong in this point.

Even if the seller was acting in good faith, there is a case for misrepresentation but not fraud or deceit, it is innocent misrepresentation,

The test is whether the seller's representation was false or not..., it is not necessary that he knew he what he was saying was false at the time of making the representation....

Tony.

Are you sure ?. I was under the impression misrepresentation was when a statement was made knowing it to be false. Update, reading your last post makes it clearer. so selling an engine stating it was reconditioned, when you knew it was not would be fraudulent misrepresentation. of course all of this is pure speculation.

Steveeasy

 

[pandos]

If Mr apple put in new batteries then you are safe, if he put in old batteries you are liable.

If you advertised that you had sent the ipad to to mr apple for new batteries and said no more, then there would be no misrepresentation, because you had done what you said you had done.

 

[pandos]

Are you sure ?. I was under the impression misrepresentation was when a statement was made knowing it to be false.

Steveeasy

I am sure...

for fraudulent misrepresentation, yes. for innocent misrepresentation no.

for the legal position look at my post#8 and follow the links and post#10

 

[sailaboutvic]

Not fair.
The answer to this thread generally involves the use of fine distinctions that are achieved and expressed through the accurate use of language. It is not a valid criticism that a poster recognises those distinctions and is capable of explaining them carefully.

As you see I deleted my posting .

 

[Tranona]

As I see it, the delay is a killer, particularly since the OP hasn't looked after the engine properly in that time, leaving it under a tarpaulin.

I think any reasonable person who was going to rely on the vendor's description of the engine as 'reconditioned' would ask for documentation at the time.
It's like if you buy a car which claims a FSH, you expect to be shown the history at the time.

We've seen zero to suggest that the OP has suffered a loss due to whatever repair was or was not done to the engine. The engine ran OK when he bought it, with some faults in ancillaries. Then he neglected it.
Now there is no evidence that there is a fundamental fault with the engine, let alone that any fault would have been prevented by the seller reconditioning the motor.

We have a process for 'civilians' to buy and sell boats. That is the buyer uses whatever experts and/or sea trials he cares to pay for. Then a deal is done. There is no ten year warranty.

Whether he has looked after it or not is irrelevant. The issue is was the work done as stated and there seems to be nothing that happened on the last year that would mean that the engine has incurred any extra wear, nor been dismantled, so it is essentially the same as when the claim that it had been reconditioned was made.

You are correct that there is normally no comeback or warranty implied in a private transaction unless it was specifically in the contract. The exception to this is misrepresentation, exactly as I said in the first response. As Pandos has already said it can be innocent or deliberate, but they are issues of degree.

The descriptive details provided by the vendor and broker form part of the contract and are a matter of fact not opinion.

 

[Tranona]

So repair is the same as recondition then?

No, not at all. The CRA to which I have referred has a list of possible remedies, and after one year the buyer has to show that there was a fault, then the vendor is required to make that good by repair or replacement.

Very different issue and process from this case which is a simple was it true or not, rather than "I bought something which later failed" which is more common in consumer transactions. Misrepresentation is also possible in such transactions, but probably most are within the scope of the CRA.

 

[PaulRainbow]

The vendor will have to present evidence to counter the opinion of a respected engineer who works for one of the biggest Yanmar dealers in the country. At least an invoice detailing the work carried out and a schedule of parts replaced then results of any tests carried out on completion.

[devils advocate]

So when the PO produces pictures of the engine being removed and pictures of it back in the boat, freshly painted, informs the judge that the engine was drained, flushed, cleaned, serviced and painted and was tested in a sea trail when the work was complete, plus an additional sea trail in the presence of the OP and his surveyor, along with a statement from the company below, a well respected engine re-manufacturer and member of the Federation of Engine Re-Manufacturers, what do you suppose will be the outcome ?

http://www.jgparts.co.uk/bulletins/rebuilt-reconditioned-remanufactured-engines.htm

In particular

A reconditioned engine is one which has been stripped or disassembled, cleaned and may have some damaged parts replaced before being rebuilt.

Not to mention a few dictionary definitions:

https://www.thefreedictionary.com/reconditioned

To restore to good condition, especially by repairing, renovating, or rebuilding.

or ; to restore to a satisfactory condition; repair; make over.

How about, https://en.oxforddictionaries.com/definition/recondition

Overhaul or repair

One more (of many) https://www.collinsdictionary.com/dictionary/english/recondition

To recondition a machine or piece of equipment means to repair or replace all the parts that are damaged or broken.

or ; to restore to good condition or working order

or ; to put back in good condition, as by cleaning, patching, or repairing

[/devils advocate]

 

[jonjo7]

So when the PO produces pictures of the engine being removed and pictures of it back in the boat, freshly painted, informs the judge that the engine was drained, flushed, cleaned, serviced and painted and was tested in a sea trail when the work was complete, plus an additional sea trail in the presence of the OP and his surveyor, along with a statement from the company below, a well respected engine re-manufacturer and member of the Federation of Engine Re-Manufacturers, what do you suppose will be the outcome ?

I would expect the judge to examine the statement from the "well respected engine re-manufacturer and member of the Federation of Engine Re-Manufacturers" and note they have not used the word "recondition" in their statement.

I would then expect the judge to turn to a vociferous independent marine engineer from East Anglia and say, Mr Rainbow if you flushed an inoperative engine to remove seawater and slapped a bit of paint on, would you bill the customer for a "reconditioned engine".

The Court of Practical Boat Owner awaits your sworn testimony...

 

[Tranona]

[devils advocate]

So when the PO produces pictures of the engine being removed and pictures of it back in the boat, freshly painted, informs the judge that the engine was drained, flushed, cleaned, serviced and painted and was tested in a sea trail when the work was complete, plus an additional sea trail in the presence of the OP and his surveyor, along with a statement from the company below, a well respected engine re-manufacturer and member of the Federation of Engine Re-Manufacturers, what do you suppose will be the outcome ?

http://www.jgparts.co.uk/bulletins/rebuilt-reconditioned-remanufactured-engines.htm

In particular

Not to mention a few dictionary definitions:

https://www.thefreedictionary.com/reconditioned



How about, https://en.oxforddictionaries.com/definition/recondition



One more (of many) https://www.collinsdictionary.com/dictionary/english/recondition



[/devils advocate]

You can construct any scenario you like, but you are still missing the point. It is not about what was done, but whether anything that met even the most basic dictionary definition of the term was done. That is was the engine stripped and any repairs carried out or parts replaced.

This is where the OP has to make his case first as to what he expected when he saw the term used in respect of the engine that was sufficient to convince him to buy - in other words he relied on the voluntary statement made by the vendor that by way of the written description became part of the contract.

Who knows what the outcome will be. Who knows what the vendor's response will be. One thing is certain he will have to provide evidence that something was done to justify using the term. Your description in the first paragraph does not, in my opinion meet the basic definition - and just as you have done, the OP will pick quotes that support his argument, based on what his engineer's report reveals.

All these sorts of cases rely on opinions and arguments, and this case only moves forward if the report shows that nothing has been done that justifies the basic definition. We already know that the ancilliaries have not had anything done to them, so it is a reasonable assumption that nothing else was done apart from a poor respray.

The only reason that this might go to court is because the OP has to prove that what the vendor did to the engine does not agree with the description and therefore amounts to misrepresentation. If it was clear cut, there would be no need for the court to decide, which it will do on the strength of the evidence presented.

 

[Flica]

But bear in mind even small claims is not zero risk.
Even if it is accepted for the small claims track. Given that the value of the whole deal was somewhat over £10k.
I think the OP ought to get actual legal advice before going any further.

IMHO getting legal advice will probably be throwing good money after bad.
Before ANY attempt to go to the courts for redress one needs to look at the possibility of being paid - in this case it's probably low.
Why spend time, money, incur lots of angst on what turns out to be a futile exercise.
Not negative, just realistic!!

 

[sailaboutvic]

I except on the wording that was used ( if so ) “ reconditioned engine” Dave may be able to bring a case against the PO or the broker ,
Of cause he has to prove .

A , some thing in writing that describe this and unless he has the listing or a copy of the advertisement he would have a problem if it is denied in court , accepting that anything said between two party's is part of a contract but proving it is another thing .

B a report that the engine wasn't strip and work wasn't done to warrant the word reconditioned being use .

At the same time magistrate are human being and if the engine is found to be in good working order and some work has been done ,
He may consider that to remove a perfect working engine one year on , just to have it check if indeed any work has been done was excessive and done for the reason on the sole purpose to try and bring a court Acton , Wasting the court time and could turn the case against him .
Magistrate are unpredictable.
And even by any chance he wins the case , for innocent misrepresentation if indeed the PO can proven he paid to have the engine reconditioned , the cost awarded could be so little that he could still be out of pocket with a engine that was once in perfect working order now in bits .
Lastly although in the end of the day he does win and some cost are award recover them cost could be another matter , which may involve another court case , bailiff.
If the PO when to all the trouble to remove a engine to paint it given the impression that work was done to the engine , he would be most likely be the type to avoid paying any order unless he have to .

We can play on words how much we like it's not costing us any thing ,
but one have to consider advising Dave to bring an Acton against the PO on the evidence which we have and what the out come may be if he wins is good advise .
He may win the fight but still lose the battle.
Has I said before good luck Dave , if I was you I get on with refitting the boat and getting it ready .

 

[superheat6k]

Still a fascinating discussion. So the PO can show by photographic evidence the engine was presented in a clean and freshly painted condition, and that it had been removed, that it has been tested, and demonstrated. He is under no obligation at all to show this was done so professionally, as he has not stated this. Therefore there does not have to be any invoice, including for parts, after all he sold the boat over a year ago 'as seen', so why would he be obliged to keep any paperwork.

At the time of his purchase the OP has had every opportunity to have his own experts examine it, but was satisfied with his surveyors observations and test operation.

Now the recent opinion is that this engine has never been reconditioned. This statement is based upon rusty fasteners. Rusty fasteners found it would seem after not only a considerable and successful delivery trip (certainly as far as the engine is concerned), and then by the OPs own admission water entry and neglect of the engine for over a year. So how long do non-stainless steel bolts take to rust ?

So the OPs case against the PO is that he misrepresented the boat by use of the word reconditioned in regard to the engine. As the complainant bringing this case to Court and especially after such a long period, the onus would be very much on the OP proving his point, and not as suggested the PO proving it was reconditioned. In my opinion the photo of a clean engine over a year ago, outside the boat more than proves his statement was a reasonable one. I expect the OP is going to have a very tough time with any Circuit Judge to explain his actions at the time of purchase and certainly since in anyway counter the factors in the POs favour.

Finally this whole scenario is based upon what seem to be casual observations of another engineer looking at the engine, possibly without the knowledge of the neglect in the OPs ownership. Two engineers can look at a rusty bolt and surmise entirely different reasons for said bolt being rusty, especially when one of the is aware the bolt has been damp with seawater, and the other is not.

If this were a two horse race I know which one my money would be on.

 

[PaulRainbow]

You can construct any scenario you like, but you are still missing the point. It is not about what was done, but whether anything that met even the most basic dictionary definition of the term was done. That is was the engine stripped and any repairs carried out or parts replaced.

Your description in the first paragraph does not, in my opinion meet the basic definition - and just as you have done, the OP will pick quotes that support his argument, based on what his engineer's report reveals.

No, it's you that misses, or rather refuses to accept, the point.

You keep banging on about "basic definition", whose basic definition ?

We both think that "reconditioned" should mean more than a quick repair, but that's just our opinions, they mean nothing in the real World. The FER also think that the term "reconditioned" should have a clearly defined, legal definition. They have been trying to get that definition for decades, without success.

You again mention "basic dictionary definition". I posted several of those, and i wasn't being selective, they were amongst the first few that came up in a Goggle search. Those definitions include :

To restore to good condition, especially by repairing, renovating, or rebuilding.

To restore to a satisfactory condition; repair; make over.

Overhaul or repair.

To recondition a machine or piece of equipment means to repair or replace all the parts that are damaged or broken.

To restore to good condition or working order.

To put back in good condition, as by cleaning, patching, or repairing

Those definitions don't require specific works to be carried out, but suggest that it's the end result that would classify an engine as reconditioned, rather than the work carried out, as suggested way back in post #10.

 

[jonjo7]

At this point in the thread it is safe to conclude that including "reconditioned engine" in the sales description of your yacht is as likely to undermine its value as it might enhance its perceived value. It is a vague term favoured by bluffers and con-men.