My poor ninja is dead

[Bobzilla]

Kaos (16/06/2011)

There is case law existing that if the defect existed at the time of the sale then it will not be fit for purpose, however, there is also a Scottish case that decided the issue based on the idea that if there is a problem with a vehicle that pertains to the age of the vehicle that was unknown at the time of the sale that this is the risk you take when you buy second hand vehicles. This was a decision from 1997 involved a 6 year old car (the bike is 17 years old) with 80,000 on the clock, while we have less mileage here, it is an extra 11 years old.

Judgment given was:
Held:
(1) that in considering the car’s fitness for its purpose the failure of an experienced witness to detect any of the symptoms prior to the car’s purchase, and the car proving reasonably fit for its purpose during the initial period of use after its acquisition, provided a justifiable basis for the conclusion that the defect was not present when the car was sold (pp 105K-106A);
(2) that the defect could have emerged at any time given the age and mileage of the car, and in buying the car the pursuer had immediately assumed the risk of repair, durability not being a quality that a reasonable person would have demanded of it (p 106I-K);

appeal refused.

Now in this particular case the purchaser had passed on a warranty to get a lower price, and the vehicle showed the problem within just two weeks.

Which is why I say there is recent case law that suggests that taking on a second hand car can leave you vulnerable and unable to rely on s14

I’m not a lawyer (and I guess you are by your knowledge, or trading standards) but I think that this case is distinguishable on several grounds.

One, its a Scottish case - persuasive precedent only, not binding.

Two, the judgment is merely that the presumption of fault was rebutted, not over-ridden.

Three, the judgment refers to age and mileage . Bike engines, especially ZX9R engines, do not blow their rods out the bottom of the case at 45k unless either a bearing has failed or the oil has been allowed to get so low as to cause failure (either by poor maintenance or a leak from engine), and it is not an age related failure. This car had 80k on the clock, which is best part of 80% of the expected useful life of a car.

Four, the purchaser had waived his warranty, thereby accepting all risk on the vehicle. It would be manifestly unfair to reimpute that warranty by operation of law where by contract they had agreed to forgo that.

I’d carry on arguing in the same position, and probably take it as far as small claims. Not sure I would appeal from there though.

[rich2302]

if all else fails, buy a 2nd hand engine and then give me a shout and i’ll help you to fit it for free.

Good luck

Rich

[Kaos]

Bobzilla (17/06/2011)

Kaos (16/06/2011)

There is case law existing that if the defect existed at the time of the sale then it will not be fit for purpose, however, there is also a Scottish case that decided the issue based on the idea that if there is a problem with a vehicle that pertains to the age of the vehicle that was unknown at the time of the sale that this is the risk you take when you buy second hand vehicles. This was a decision from 1997 involved a 6 year old car (the bike is 17 years old) with 80,000 on the clock, while we have less mileage here, it is an extra 11 years old.

Judgment given was:
Held:
(1) that in considering the car’s fitness for its purpose the failure of an experienced witness to detect any of the symptoms prior to the car’s purchase, and the car proving reasonably fit for its purpose during the initial period of use after its acquisition, provided a justifiable basis for the conclusion that the defect was not present when the car was sold (pp 105K-106A);
(2) that the defect could have emerged at any time given the age and mileage of the car, and in buying the car the pursuer had immediately assumed the risk of repair, durability not being a quality that a reasonable person would have demanded of it (p 106I-K);

appeal refused.

Now in this particular case the purchaser had passed on a warranty to get a lower price, and the vehicle showed the problem within just two weeks.

Which is why I say there is recent case law that suggests that taking on a second hand car can leave you vulnerable and unable to rely on s14

I’m not a lawyer (and I guess you are by your knowledge, or trading standards) but I think that this case is distinguishable on several grounds.

One, its a Scottish case - persuasive precedent only, not binding.

Two, the judgment is merely that the presumption of fault was rebutted, not over-ridden.

Three, the judgment refers to age and mileage . Bike engines, especially ZX9R engines, do not blow their rods out the bottom of the case at 45k unless either a bearing has failed or the oil has been allowed to get so low as to cause failure (either by poor maintenance or a leak from engine), and it is not an age related failure. This car had 80k on the clock, which is best part of 80% of the expected useful life of a car.

Four, the purchaser had waived his warranty, thereby accepting all risk on the vehicle. It would be manifestly unfair to reimpute that warranty by operation of law where by contract they had agreed to forgo that.

I’d carry on arguing in the same position, and probably take it as far as small claims. Not sure I would appeal from there though.

I generally agree with your comments. Though age may still be an issue.

As I said the decision does not affect the warranty in anyway, and I agree I too would risk taking it to the small claims if it came to it, as I think for the money it costs it would be worth the hassle and the risk.

I only mentioned this because usually this sort of sale is governed by s14 in a straight forward manner and I can usually give sound advice to say, yes you definitely have a case, go for it…but in a case such as this where there is case law which does cast doubt on the outcome, it is worth noting that.

[Gem]

If you do go for a replacement engine, have a look at SDK Pitstop Motorbike Breakers they have a page on Facebook, a friend has used them earlier this year and said very good service.

For a car engine i used www.247spares.co.uk/quotes, and they found one within 3 days.

Good luck

[gurninman]

And if you do buy a new engine, do the head gasket before fitting(when you do the HG on these, torque down the head, leave for 24 hrs then retorque - makes all the difference to longevity)

[me_groovy]

thanks for all the help guys

Gem (17/06/2011)

If you do go for a replacement engine,have a look at SDK Pitstop Motorbike Breakers they have a page on Facebook, a friend has used them earlier this yearandsaid very good service.
Good luck

can’t find them anywhere, can you send me a link please?

[Alice]

Kaos (16/06/2011)

There is case law existing that if the defect existed at the time of the sale then it will not be fit for purpose, however, there is also a Scottish case that decided the issue based on the idea that if there is a problem with a vehicle that pertains to the age of the vehicle that was unknown at the time of the sale that this is the risk you take when you buy second hand vehicles. This was a decision from 1997 involved a 6 year old car (the bike is 17 years old) with 80,000 on the clock, while we have less mileage here, it is an extra 11 years old.

Judgment given was:
Held:
(1) that in considering the car’s fitness for its purpose the failure of an experienced witness to detect any of the symptoms prior to the car’s purchase, and the car proving reasonably fit for its purpose during the initial period of use after its acquisition, provided a justifiable basis for the conclusion that the defect was not present when the car was sold (pp 105K-106A);
(2) that the defect could have emerged at any time given the age and mileage of the car, and in buying the car the pursuer had immediately assumed the risk of repair, durability not being a quality that a reasonable person would have demanded of it (p 106I-K);

appeal refused.

Now in this particular case the purchaser had passed on a warranty to get a lower price, and the vehicle showed the problem within just two weeks.

Which is why I say there is recent case law that suggests that taking on a second hand car can leave you vulnerable and unable to rely on s14

Aint scottish law at best only persuasive?

[burnmonkey]

This re-enforces my judgement on purchasing second hand vehicles. I never buy through dealerships, they don’t know the history of the vehicle and very rarely do they do more than timing and oil, spark plug change and a bit of anti-squeak lube.

I’ve always bought second hand through places like eBay meeting the owner of the car. Seeing the person face to face tells you a lot.

BM

[MickyWiz]

Check the wording of your warranty as well, mine was 3 months or 3000 miles, whichever happened first. I was up to 4000 miles in about 7 weeks, so that was that.

[Gem]

me_groovy (25/06/2011)

thanks for all the help guys

Gem (17/06/2011)

If you do go for a replacement engine,have a look at SDK Pitstop Motorbike Breakers they have a page on Facebook, a friend has used them earlier this yearandsaid very good service.
Good luck

can’t find them anywhere, can you send me a link please?

Try this one, http://www.facebook.com/home.php#!/profile.php?id=100002510777685.

Hope this Helps. Guy’s name is Oli.

[tattooist1000chick]

heart breaking isnt it

[me_groovy]

wonderful, cheers!