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José M.
José M., Attorney
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Satisfied Customers: 4827
Experience:  Spanish Attorney
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I am a British national, and not fiscally or formally resident

Resolved Question:

I am a British national, and not fiscally or formally resident in Spain.

I purchased a car from a dealer in Alicante Province in December 2012, giving my car in part exchange and paying the difference in cash (approx €1500). The car was described as being in 'very good condition inside and out' and had a low mileage (100k km, car registered 1996). Because I gave my car in part exchange, the selling garage stamped the factura 'sin garantia'.

Within 5 minutes of leaving the selling garage in the car a problem appeared, the overdrive light came on and I was not able to progress beyond 3rd gear (approx 70kph). I contacted the selling garage who despatched a mechanic a couple of days later to my home who identified the problem as being a faulty temperature gauge switch. I also mentioned to the mechanic the clouds of white smoke I had noticed in the mornings when starting the car. The mechanic assured me this was simply due to the cold air in the mornings and the incorrect 'mix' of fuel caused by the faulty switch.

After several week waiting for a part to arrive from the UK, the mechanic returned and fixed the problem with the temperature gauge switch. The problem with the clouds of white smoke was not cured, and I noticed the car seemed to be using a lot of oil. Again I mentioned this to the mechanic and was assured this was quite normal and nothing to be alarmed about in an older car.

Last week (April 2013) I went to start the car in the morning and it would not start. Thinking I must have a flat battery I called the selling garage's mechanic to ask if he could lend me some jump leads and/or advise me where to buy a replacement battery from. He attended my home and started th car by means of a portable jump starter, and advised me that the alternator was not charging the battery. He suggested I take the car to another garage in the village I live in and ask them to recondition the alternator, Which I did.

The village garage advised me that the alternator could not be repaired or reconditioned due to oil damage, and that there was an oil leak in the engine which had caused the damage as well as explaining the clouds of white smoke and the car's greedy use of oil. They advised me that a new alternator would cost in the region of €500 + IVA, and the repair of the oil leak an unknown additional amount. When I replied that I could not afford this, and that I had only had the car for four months they advised me that 'Liability for Defects' should apply and that I should contact the selling garage, which I did.

The selling garage are maintaining that they sold the car without a guarantee and have no liability. From my limited knowledge I believe that guarantees and warranties, or lack thereof, have no bearing on the EU Directive on the Sale of Conusmer Goods, which I believe applies in this situation. And that it being less than 6 months since the date of purchase the assumption is that the defect existed at the time of purchase, and is therefore within their liability to repair.

I offered to accept a refund or exchance (replacement car) if they preferred that to the repair option. They replied that they would pay half of the cost of repairing the alternator as a 'goodwill gesture', doing the work themselves, and would 'take a look at the oil leak' afterwards 'if I like[d]'.

I am trying to determine whether Liability for Defects does apply in this case, and what my rights and options are. I am currently without transport, which is highly inconvenient, and am not in a position to pay for the repairs elsewhere and then attempting to claim the costs back, if I had the legal option to do so.

Can you give me some advice on what my legal position is and how I might proceed?
Submitted: 1 year ago.
Category: Spain Law
Expert:  José M. replied 1 year ago.

Attorney3044 :

Hi

Attorney3044 :

It is NOT legal to sell a car in Spain SIN GARANTIA

Customer:

OK, so what are my options?

Attorney3044 :

It does mean that you have not warante and it is NOT LEGAL

Attorney3044 :

Well the best way it to contact with the consumer service of the city hall where the seller is a denounce him

Attorney3044 :

Even if signed by you its ilegal he will get a fine and you your money back

Customer:

At the moment things are still amicable. I would prefer not to be confrontational in that way

Customer:

I suspect the garage owner either does not know he is lioable, or hopes I will give up in the face of his offer.

Attorney3044 :

You have 1 year warante by law

Attorney3044 :

law it is RDL 1/2007

Customer:

The same law as the Liability for Defects EU Directive?

Attorney3044 :

This law is non renunciable for you as a consumer

Attorney3044 :

Yes

Customer:

And that definitely does apply in this case?

Attorney3044 :

To get your car repaired or your money back

Customer:

As far as a remedy goes, if he refuses to repair (at his own cost), or refund my money, can I take the car to another garage and have them bill HIM for repairing it?

Attorney3044 :

Yes, but its better for you to denounce him

Customer:

Or do I have to denounce and then wait for a resolution (I have no transport at all, which is making life very difficult, I can't wait weeks or months to resolve this)

Attorney3044 :

No, It will be fast

Attorney3044 :

he will get a fine and the order to repair your car

Attorney3044 :

If he do not repair you could do it an sue him in court also

Customer:

OK, so first step is to tell him that is what I will do if he does not repair the car?

Attorney3044 :

Remenber to do it in 6 months since the date of the bill

Customer:

yes, I have until June

Customer:

after 6 months I have to prove the fault was there at the point of sale, correct?

Attorney3044 :

I think the best for you its to send him a burofax and thrat him to denounce him if he does not repair in 7 days

Customer:

what is a burofax?

Customer:

like a recorded delivery letter?

Attorney3044 :

Correct, in the second 6 months you have to probe

Attorney3044 :

Yes a burofax its a service provided for spanish mail

Customer:

I can get that from the Post Office?

Attorney3044 :

Its a legal way to probe you have ask to repair

Attorney3044 :

Yes, in the post office or on line

Attorney3044 :

http://online.correos.es/Burofax/inicial.aspx

Customer:

Great. So to recap. He is liable for the repair or refund, under RDL 1/2007 (EU Directive on Sale of Consumer Goods 1999), and that if he refuses ro fails to do so I can denounce him and receive a court order to force him to repair or refund, weithout proof that fault existed at the point of purchase, provided I begin action within 6 months of the date of purchase. DO I have that correct?

Attorney3044 :

Correct

Customer:

Thank you very much. You have confirmed what I found out from research, it is very gratifying to have an expert opinion as it gives me the confidence to act on this.

Attorney3044 :

Even with a lawyer, according to the spanish civil code you could sue your money even the expenses

Attorney3044 :

Thank you

Attorney3044 :

I will be here if needed

Customer:

What does a court action cost in a case of this kind, roughly? Again, I don't have a lot of money to fight in court

Attorney3044 :

Don not let this guy to scam you

Attorney3044 :

It could be no more than 2000 euros that he will have to pay if the attorney makes the procedures right

Customer:

But I would have to pay it in advance, and then get it back afterwards?

Attorney3044 :

Yes

Customer:

OK, well lets hope that can be avoided :)

Attorney3044 :

Consumer service prottection its free

Attorney3044 :

Thank you

Customer:

Thank you again, you have been most generous with your time and expertise, and I very much appreciate your help

Attorney3044 :

Wait for a minute

Customer:

ok

Attorney3044 :

I tink I have somewhere the law 1/2007 in english aldo

Attorney3044 :

also

Customer:

that would be very useful

Attorney3044 :

Here you got

Attorney3044 :

http://www.mjusticia.gob.es/cs/Satellite/1292363991081?blobheader=application%2Fpdf&blobhe adername1=Content-Disposition&blobheadervalue1=attachment%3B+filename%3DRevised_Tex_of_the_General_Law_for_the_Protection_of_Consumers_and_Users_%28Ley_General_para_la_Defensa_de_Consumidores_y_Usuarios%29.PDF

Customer:

No, but I will download it now

Attorney3044 :

Ok

Customer:

I found a translation. "The prior renunciation of the rights recognized under this legislation consumers and users is void, being also void acts done in fraud of law in accordance with the provisions of Article 6 of the Civil Code.". Oh my goodness, he is in trouble, huh?

Attorney3044 :

I will be here if needed

Customer:

Not only is sin garantia void, it's an act of fraud

Attorney3044 :

Please to make a good rate of my service please

Customer:

he needs to be scared of me now LOL

Customer:

I certainly will. Thank you very much once again.

Attorney3044 :

Yes You as a consumer can no deny your warantee

Attorney3044 :

Even if signed its abusive and NULE

Attorney3044 :

He has problems with you

Attorney3044 :

He is forced by law to give you warantee

Customer:

He does the sin ganratia a lot, he even said to me 'i';ve never had a problem selling without guarantee before'

Attorney3044 :

The stamp sin garantia its abusive and nule

Attorney3044 :

They are scamers... do not let them

Customer:

right before he offered the 'goodwill gesture'.

Customer:

I won't. Thank you :)

Attorney3044 :

Yes, but you have rights by law

Customer:

If I get the chance I will let you know what happens

Attorney3044 :

Do not worry put a claim, denounce him and be sure he will get trubles

Attorney3044 :

Sure

Customer:

Either way, thank you :)

Attorney3044 :

I ussually stay here in this site

Attorney3044 :

So, you can reach me whenever

Attorney3044 :

If you need even other laws as civil spanish code i have got the links

Attorney3044 :

Thank you

Customer:

That's great. I will certainly come back to you for any futher legal assistance I need. Thank you once again, and I hope you have a wonderful afternoon.

Attorney3044 :

Thank you

Attorney3044 :

Please do not gorget to rate positevily my service :)

José M., Attorney
Category: Spain Law
Satisfied Customers: 4827
Experience: Spanish Attorney
José M. and other Spain Law Specialists are ready to help you

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