Legal Article - Business Law

The Need for Mileage Accuracy

The mileage reading on the odometer of a vehicle is a 'trade description'; if it is wrong then it is a 'false trade description'. Wherever that reading is used or displayed constitutes a separate offence.

A false trade description or a failure to comply with the Consumer Protection from Unfair Trading Regulations 2008, is a breach of the law and is treated as a criminal offence.

If you enter the mileage on the Order Form, Invoice, Warranty or other documentation then that entry is a trade description, and if wrong a separate offence occurs on each occasion. The issue can also be seen as a misrepresentation of goods.

The same applies to any other misdescription or inaccuracy.

If the vehicle is placed on display, offered for sale to a prospective customer, or eventually supplied to a customer after the contract for sale and the odometer reading can be seen, then that reading is a trade description. If it is wrong then it is a false trade description.

Without taking suitable precautions you have already committed at least one offence or possibly more, for which you may be prosecuted.

If you advertise a car, in the press, on the Internet, on the premises or anywhere else and include the mileage, or any other description, which later proves to be inaccurate, you have committed another offence.

The law on mileage discrepancies is strict. You do not have to know it is wrong. You can in fact believe it to be accurate. It is simply a question of fact. If it is wrong you have committed an offence.

If you change the recorded mileage (also known as mileage clocking) or replace the speedometer with one with a different reading then clearly the act of changing the odometer is applying a false trade description and an offence.

If you offer a vehicle for sale or even supply a vehicle which has been clocked, although not by you, nor for you, and even if you are unaware that it has been clocked, you have committed an offence.

The difference in the two scenarios is the penalty imposed. For the first (changing the mileage) the fine may be nearer to the maximum or even a sentence of imprisonment, for the latter (offering/supplying) the fine is likely to be slightly less.

What is false has been the subject of much interest in the courts. If the mileage difference is to a material degree then the description is false.

This may mean, say, on a new car 500 miles or less may be significant and constitute an offence, whereas on a vehicle having travelled 60,000 miles the difference of 500 miles may not be to a material degree.
The situation would of course change if a small mileage change was made to make the vehicle more acceptable to a specific customer, or to secure finance or to avoid a Mileage penalty. The act of deception in such circumstances could move the offence to one of theft.

It must be noted that any mileage displayed on a vehicle or document is a trade description and if wrong is a false trade description. It DOES NOT require anyone to give the mileage. The vehicle describes itself. Just being there is enough.

If anything is said or written down this just adds an extra dimension and possible offence.

Verbal descriptions also leave you vulnerable; by just saying or implying the mileage is correct, when it is not or you just don't know, may get you in trouble.

It is unlikely that any sales person will say 'I guarantee the mileage' unless they are 100% sure they are right BUT many salesmen give descriptions, which they believe but may not be able to support.

Phrases you must NOT use when talking to customers about mileage:

"The recorded mileage is 34,000" the implication is that you are an expert and the mileage is 34,000 which is correct.
"We check all our vehicle mileages" this means that you have checked the mileage on this vehicle and it is correct.
"It's about 34,000" this means it's about 34,000 and that is correct.
"We wouldn't buy any vehicle if we thought the mileage was wrong" this means "The mileage on the car is correct."
"We bought it with 34,000 on the clock" this means "We bought it with 34,000 on the clock and this is correct."
The law sees you, and your staff, as experts. It does not matter that your sales person has only started today and this is the first customer - what is said is said as an expert and the customer is entitled to rely on it.

Phrases you CAN use:

As you are an expert your opinion is that of an expert. What you say, you say as an expert.

If you merely repeat what you have been told by a third party then you are not speaking as an expert, only relaying information you have received.

So, when asked as to the accuracy of the mileage, you could say (assuming what you say is correct):

"The previous owner has warranted the mileage to us. We are making checks to see if that is correct and until we have received information from the previous keepers we cannot be sure."

"We have no reason to doubt the mileage but we are checking its accuracy. Until we have got that confirmation you should disregard it and judge it on its other qualities"

You can protect yourself by the use of the Mileage Disclaimer; where these are used on the vehicle and accompanying documentation any description will be negated. Beware though that anything that is said about mileage overrides the disclaimer, and takes away its usefulness.

Beware though, disclaimers cannot be used to hide behind. If you have information about the mileage, good or bad, you must relay this to the customer. You cannot 'blanket disclaim' neither can you turn a blind eye and not carry out the necessary checks hoping that the mileage will be correct.

Advertisements also pose a problem area. If you include a mileage in an advertisement then you are effectively saying that you guarantee the mileage to be accurate.

Only include mileages when you have possession of the full history and you are satisfied the mileage is correct.

Published: 16 Mar 2011


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