The finance industry focuses on durability, and misses the point!

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There is plenty of sound legal authority that makes clear a buyer of a used vehicle must expect that faults will develop sooner or later.

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Finance houses increasingly, and often deliberately, seek to misinterpret the law for their self-serving ends. They argue the legal notion of “durability” as a sort of silver bullet against reasoned argument and cogent evidence.

Having grasped that the law is not necessarily designed to allow entitled consumers to drive about for X months, Y miles before something goes wrong and then simply return a vehicle to the motor trader to repair or seek some other remedy, finance companies have now collectively alighted on this latest wheeze to keep the consumer sweet and the Financial Ombudsman Service (FOS) at bay, while simultaneously throwing the much-maligned trader under the bus of consumerism.

There is plenty of sound legal authority that makes clear a buyer of a used vehicle must expect that faults will develop sooner or later, which remains good law, despite the provisions of the Consumer Rights Act (CRA) 2015.

In the persuasive case of Thain v Anniesland Trade Centre (1997), the court found in relation to durability and satisfactory quality that:

“People who buy second-hand cars get them at less than the original price in large part because second-hand cars have attached to them an increased risk of expensive repairs.”

On that basis alone, buyers of second-hand cars must accept the risks inevitably attached to such cars due to wear of components with uncertain failure times, and as a result, often pay a much-reduced price from its price when new.

The courts have consistently found that even a negligible degree of durability may not represent unsatisfactory quality when a car is old and heavily used. Durability, in these circumstances, is purely a matter of luck and not something that any reasonable person would expect or demand.

Here at Lawgistics, we have been told in terms of finance that durability is: “a separate focus within the industry” which implies that the industry thinks it can make its own rules to suit itself, and it cannot.

Indeed, durability is only one of five aspects cited in CRA 2015, which “in appropriate cases” impact upon the quality of goods, and yet this is now the industry focus regardless. The key word here is “appropriate” as in most used vehicle cases, it most certainly is not.

Durability is a matter for legal opinion only based on the facts of any given case, and the court’s interpretation of the relevant law, it is not some nebulous catch-all argument for finance to randomly bandy about, and this seems to elude them. More worrying still are the barely veiled attempts we see by finance companies to direct and influence expert opinion to comment on durability, which they have no place to do. Moreover, any expert tempted to offer such an opinion for the benefit of its paymasters rather than to discharge its overriding duty to provide expert evidence within their field of expertise only for the benefit of the court, and not offer a legal opinion, which is a matter exclusively for the court, risks censure, not least since we/our sister CIC are watching… and you will be called out.

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Howard TilneyHead of Strategy / Legal AdvisorRead More by this author

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