In my weekly blogs we’ve spent considerable time focusing on the what to look out for when buying privately as you as you have little or no recourse should something go wrong. I have had many requests to highlight what customers rights are that have purchased from a dealer. We’re all aware of the Consumer Protection Act and it has been put in place to protect you the customer and the dealers. Unfortunately, there will always be dealers just trying to make a quick buck operating with no ethos and you will always get customers trying to take advantage of dealers. Here are some important points to consider if you are a customer or a dealer:
- If you have paid for a motorcycle but have not taken delivery i.e. ridden it away or loaded it on a trailer, the dealer must refund you if you change your mind. You might be liable for some preparation costs.
- According to Section 56 (2) of the Consumer Protection Act (CPA), the consumer has the right to return a motorcycle to a dealer within a 6-month period under certain conditions. However, the CPA only applies to suppliers who sell motorcycles during their ordinary course of business and not to private sales between individuals.
- If the customer can prove that the motorcycle sold to him was not fit for the purpose which he/she bought it, the buyer has a leg to stand on – but the buyer also must provide the evidence. Section 55(2)(b) of the CPA provides that the consumer has a right to receive goods that are of good quality, in good working order and free from any defects. However: This section is not applicable to a transaction if the consumer expressly agreed to accept the goods in that condition and knowingly acted in a manner consistent with accepting the goods in that condition. (please see my note below regarding a recent ruling by the ombudsman)
- A recent ruling by the Motor Industry Ombudsman set the way forward for dealers selling motorcycles as salvage to avoid offering any form of warranty. If the bike is ridden away and roadworthy the dealer will have to treat the transaction as a normal deal – even if the customer signs the offer to purchase as ‘salvage’ (warning to dealers)
- The CPA says if a customer has bought a motorcycle on impulse, he can return it, no strings attached. This cooling-off period does have clear-cut parameters: it lasts for five business days and can only be invoked if the buyer has bought a motorcycle because of direct marketing concerning that same product from a supplier. For example, the customer would have received an email, SMS or other direct marketing material from the supplier for that specific deal, before he is eligible for the cooling-off period.”
- Consumers can also return goods to the supplier for a full refund in circumstances when the goods are not of the quality perceived by the customer in the agreement. But consumers may still be liable for charges of using the motorcycle during this period, such as adding to the mileage of the motorcycle or affecting its condition. Sellers may impose a reasonable charge for the consumption or depletion of goods or any costs required for the restoration of the goods if they have been used.”
- The old principle of buying a motorcycle voetstoots no longer applies. False, misleading or deceptive representations are also not allowed, and suppliers need to be wary of making false representations or failing to disclose a material fact regarding the condition of pre-owned motorcycles to a consumer. Consumers have the right to cancel the sale should they feel they have been deceived, and to cancel a sale if obligations with respect to delivery of goods and supply of services are not met.
- The Act makes it an implied condition that every transaction will take place according to what was agreed between the consumer and supplier, for example the delivery of a motorcycle at an agreed time, date and place. If a consumer has agreed with a dealer that certain items on a pre-owned motorcycle will be repaired and functional upon delivery, then the dealer is under obligation to comply or his sale may very well be cancelled.
Anyone that might have tried to deal with the CPA will know that they are flooded with cases and are often slow to respond. There are many ways to interpret the CPA and you are welcome to contact me for specific advice (dealers and customers) My advice is it matters more where you buy than what you buy. If something goes wrong with your motorcycle you want to be dealing with the right dealer. If you find yourself unable to resolve a situation, refer the matter to the MIOSA who is very efficient, effective and fair to both dealers and customers.