Does a sales agent count as a dealer?

LCH611 said:
She has been disingenuous in her letter to me by making out that it is a behavioural problem, and omitting the fact that it was caused by horseflies - which she had previously told the agent. It is all a bit of a nightmare and I wish for the horse's sake I could just have him back and be done with her, but there was a pressing financial need to sell him and I no longer have the full amount to give back......
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It sounds like it's worked but ok but you can take them back for less than you were paid if you want to. A friend was in a similar positon a year or so back. The buyer claimed horse was bucking her off but offerend no video evidence, no medical reports suggesting any injury, nothing. She took the horse back - as she hated the thought the horse was unhappy, not because she thought she was in the wrong - but for less than she was paid to cover costs for reselling. Buyer accepted the offer, then a month later, threatened small claims court. Friend took legal advice who said she was perfectly within her rights to do what she did so told this woman she'd see her in court. She's never heard anything since. Mare was sold as forward. We suspect she was too forward for the rider but, as she was advertised as forward, the buyer lied about bucking to send her back.
 
There was a significant court case about exactly this point, and whether someone was an agent or not. I can't remember the details, but there is no simple answer to this question. I can't remember the name of the case and it was complicated.
 
I can see how an agent can be responsible for the sale, so its a trade sale. When you buy a house you use an agent who handle all the advertising and viewings and you pay a fee, which is usually a % of the sale. We all know estate agents are very good at glossing over a houses bad points, so you pay a surveyor to vet the house and the seller usually has to fill in a sheet about the houses history. I would like my money back for every house I have purchased where the shower didn't work, and the plumbing was not connected, which you would think working plumbing would be a standard requirement.
 
Actually a friend has had this problem... he's after the surveyor not the estate agent or the vendor though. I'm not sure house sales are counted as trade sales for the puprposes of law?
 
I am afraid if you use a professional to market your horse it will be treated as being under the sale of goods act irrespective of how you try to hide the professional involvement. It is the seller who will need to prove it wasnt not the buyer to prove it does come under the act . To be honest pay up and get the horse back as the protection under the latest law is greater and on many instances it will involve trading thats on the face of it private treaty.
Im afraid the value of the horse will seem very insignificant in relation to the legal eagles that get involved and it is nigh on impossible to recover your cost even if the judgement is in your favour with small claims cases.
 
popsdosh said:
I am afraid if you use a professional to market your horse it will be treated as being under the sale of goods act irrespective of how you try to hide the professional involvement.
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I don't believe that you are right about this but in any case it is certainly not that simple!


In this case, the vendor is named on the receipt as the owner. If the owner is not a business, then it's very unlikely that the Sale of Goods Act applies to this sale.
 
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An update: the agent found another family keen to buy the horse within a week. they walked away from the sale when she refused to take what she paid for him and wanted £2k more. Given that there was a written audit trail of the fact that she was trying to deal him on using the same advert, we left her to it and I subsequently heard he was going nicely for her in a riding club lesson she attended. I have today received a letter saying that she still claims she was sold him in a dishonest manner, has taken legal advice from an equine solicitor and he is to be returned and a full refund given to her within 24 hrs. I am not able to do this even if I thought I was legally obliged to. can anyone tell me how I should respond? Am not in a position to rack up legal fees :(
 
is this letter from a solicitor or is this her coming back saying she has talked to one?

Under the sales of goods act if this applied to this situation she would have had 30 days for a no quibble refund, in effect she was offered this within 7 days and declined as she wanted more money for the goods that she spent on them. its a bit like me buying a pair shoes for £20, but only accepting £30 pound if they broke not the original £20.

https://www.which.co.uk/consumer-ri...w-long-do-you-have-to-return-a-faulty-product

i'm not a lawyer,
 
If she was serious she would have taken action before now and got a solicitor involved properly, I guess she has been advised she has no case but to try sending a formally worded letter to see if that makes you panic into trying to do a deal.

If he was so awful she would have snapped up the offer and not tried to make a profit from a "dodgy" horse, I would ignore the letter unless you get one from a solicitor, which I very much doubt you will after all this time.
 
To have been offered the chance to sell the horse originally but declined it then 3 months later try it on again is bonkers - unless there is more to this than we know there is surely no way any self respecting solicitor would take it on.
Unless the letter was sent recorded delivery maybe ignore it and feign ignorance of its receipt?
Or respond with a clear letter with dates/times/copies of texts and emails word for word of the previous chance to sell on and acceptance to keep the horse and a black and white no, jog on then leave it.
If you have home insurance or BHS membership there is very often free legal advice helpline available through those channels.
 
The first consideration would be whom was the contract /transaction between. Although it's easy to consider the sales agent as being this person, they by the sounds of it simply acted as a 'go between' in the same way an estate agent would if you were selling your house. Unless the sales agent bought your horse off you to sell on (which would be a dealer, and therefore a business selling the horse) the contract remains between you (a private seller) and the purchaser, hence it is your name that has been recorded as 'the vendor' and the monies were paid directly to you. You can take the sales receipt as your contract of transaction. You obviously bought the services of a sales agent to advertise your horse and arrange viewing for possible purchase. This is a separate contract entirely and if you feel that the sales agent was neglectful in advertising your horse in a misleading way that you did not/would not have endorsed, you have a possible case against him/her. But this is a separate transaction as you bought the services of this sales agent to assist with the sale I take it from what you posted. The sale of goods act does not apply to private sales, but this doesn't mean the buyer would have no recourse at all if 'things go wrong' here is something on this I found about it
'It is important to check goods before you buy, because generally goods brought from a private seller do not have to be free from faults. However, if the seller tells you the goods are in good working order, and they turn out to be faulty, then you may be able to take action on the grounds that the goods did not match their description '.
And in your defence you allowed the buyer to try the horse out and have vetted, which shows you were as open as possible. Now unless you have literally sold an absolute loony as a beginners first horse, it would be very hard for her to claim as such. The other possible come back a buyer would have is if you sold a showjumper and it wAs found to have come with kissing spines or something that prevented such use. But of course I know she isn't claiming your horse is physically faulty I'm just using as another example.
 
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I am not a lawyer and you need to take formal legal advice - however, it is late and you probably want answers now. I have recently been involved in a case that was very similar so can tell you what was decided in this particular case but please be aware that all cases swing on minute detail.

If the horse was sold with a full declaration that the agent was acting as the agent, and you were the owner and payments were received by you, then it is a private sale and the Consumer Protection Act applies - i.e. buyer beware and not right of return UNLESS the buyer can prove misrepresentation, i.e. did you not provide the correct (or a misleading answer) to a direct question about the horse and its fly reaction. Do not reply to the letter or engage in any way with the buyer without legal advice.

A business sale is classified as someone who sells through the course of their business - not according to how many horses are sold - so if you buy and sell horses as a job, or work professionally with horses (as an instructor for example) then you may well be classified as a business seller and the above advice does not apply.

I hope you get your answers tomorrow. A £150 one hour consultation could pay dividends ten-fold and you may have this legal advice under a household insurance cover or through a policy your employers have offer.
 
I honestly would not either worry or waste your money until you receive a legal document / credible letter before action. (Not one she has downloaded and filled in herself!). In which case that is the time to ask for legal advice. Unless there is more to this than has been explained, you won't.
 
Thank you everyone. The thing she is trying on at the moment is that he has a mild head shake - he tosses his head when trotted up in the video that she responded to. She had the horse vetted and the vet told her it had a mild head shake but she was still happy to buy him (and ran the bloods before committing to buy so discovered that he had had no medication of any kind). If it ends up going to court are we allowed to ask for a copy of the vetting certificate? I need to go back through all my emails but I am certain that I gave details of my own vet so they could get his full medical history if they wanted.
 
She cannot now decide the mild headshaking is an issue if she bought him despite it being picked up at the vetting, it sounds as if she is clutching at anything to get her money back but has no real grounds and if a solicitor knows she bought him with the condition she has little hope of getting anywhere, I expect she has bought a horse that is simply beyond her capabilities and any slight deviation from perfect behaviour is too much to cope with, I feel sorry for the horse but equally if you cannot buy him back there is nothing you can do, I would not get into any dialogue with her as it may be twisted against you if she does take it further.
 
For goodness sake, go to the CAB which will cost you nothing. When I was seeking compensation from a vet for not following protocols in vetting a horse for me, they were very helpful in wording letters. I was advised by an equine solicitor that using one would result in me paying out far more in legal fees than I was claiming. I managed to avoid any expense due in part to the correctly worded response that CAB helped me with.
 
You are not a business LCH611, you are a private seller remember that. A mild head shake picked up not only in a video which the buyer viewed and then on HER vetting which she then still chose to ignore and buy, would not hold up in court anyway! It would not be seen as misrepresention.
She obviously doesn't know her stuff leagally wise otherwise she wouldn't have mentioned the Sale of Goods Act because that does NOT apply to private sales.
The simple matter is - she bought a horse and made a mistake in her choosing so now she'll have to sell it on herself.
As cundlegreen advised though the citizens advice bureau are FREE advice so contact them for further advice and reassurance. A few choice words in a formal letter to the buyer which shows that you know your stuff / have done your homework should work wonders in this case.
 
As far as I can see there are 2 possibilities: She is bonkers and just sending scary threatening legalish sounding letters hoping you'll panic into taking the horse back. In which case any correspondence may just be fuel to the fire and ignoring her completely, blocking her on social media - essentially treating her like a troll - is likely to be the easiest and mosy effective way forward.

OR she thinks she does have a case and will try and take it down a legal route. Given she does not appear to have a legal leg to stand on this seems most unlikely but if she does instruct a solicitor then you will get a formal legal letter that a lawyer has written up. In which case you can start thinking about what you need to do legal wise. There is no hurry because you will have time to reply from the date of any letter and you will be told at that point what evidence she is presenting to support her claim that the horse was missold. Unless and until something formal happens legally I would not lose any sleep over it or engage with her in any way ar all or waste my time on this. Sorry you are in this situation. The horse world is full of fruitloops!
 
LCH611 said:
An update: the agent found another family keen to buy the horse within a week. they walked away from the sale when she refused to take what she paid for him and wanted £2k more. Given that there was a written audit trail of the fact that she was trying to deal him on using the same advert, we left her to it and I subsequently heard he was going nicely for her in a riding club lesson she attended. I have today received a letter saying that she still claims she was sold him in a dishonest manner, has taken legal advice from an equine solicitor and he is to be returned and a full refund given to her within 24 hrs. I am not able to do this even if I thought I was legally obliged to. can anyone tell me how I should respond? Am not in a position to rack up legal fees :(
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She would not have a leg to stand on in court. Even if she did originally have a case (which I am not sure she did), she has a legal obligation to minimise her losses and the if she was offered what she paid for him and refused it then she will be in breach of this obligation.

Do you house insurance if so does it include legal cover (most do) ? If so then get in touch with them. Otherwise if the value is less than £10,000 then it would go through the small claims court and they guide people through the process.

The main thing is to collect evidence of the facts and correspondence. So the original advert, testimony from people who can substantiate the claims in the advert, evidence that she turned down the offer to resell him at the original price, evidence that she is doing well at riding club etc. All time consuming but not especially costly.

Good luck
 
Thank you everyone. Am going to see what legal cover is provided by my household insurance, and will see how quickly CAB can see me as well. I will see if the equine solicitor sends a letter, otherwise I will not respond. I am gutted that the horse has ended up somewhere he is not loved, but I am not in a position to have him back :(

Audit trail documenting all the things you outlined Fred66 is being collated and we will see what happens next.
 
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