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Ask Lawgistics: The Car Dealer Club lawyers answer your queries

Time 6 years ago

The use of unroadworthy sales invoices

Q: Can I use an unroadworthy sales invoice for an old part-ex?

A: 
This is a regular question we get asked, and in most cases the answer is no. We understand that part-exes are generally old vehicles that are near the end of their lives, but unfortunately this doesn’t change the potential buyer’s statutory rights, and producing 
an unroadworthy sales invoice will not help 
you to get around this.

An unroadworthy sales invoice is exactly what it says it is, and the vehicle must be unroadworthy for you to issue one. If you use an invoice pad like those supplied by Lawgistics, the terms and conditions 
will state that the vehicle cannot be used
 on the public highway until it is made safe and it will be removed from the premises by a transporter or similar means.


An unroadworthy invoice is usually applicable for vehicles being sold for repair or parts. In reality, if you have advertised a vehicle for sale and the potential buyer has taken the vehicle out on a test drive and driven it away, your use of an unroadworthy invoice would be seen as an attempt to restrict your client’s statutory rights.

This equally applies to any agreement made with the client regarding putting an MOT on the vehicle. This invalidates the unroadworthy sales invoice and the client will still have their entitlement under the Sale of Goods Act 1979. This may seem unfair applied to a vehicle, which could be 15 years old and has travelled many miles, though the law recognises that components may come to the end of their life due to wear and tear, which as a seller you are not liable for.

However, if a component fails soon after purchase then it is more evident that the component failure was present at the time of sale. If you are selling a part-ex which is roadworthy (ie, has a valid MOT) but has a known fault, then we recommend that you use a standard sales invoice pad but state on the invoice the faults which are known on the vehicle. Make the client aware of this before they enter into the agreement, and once the fault is included on the sales invoice, obtain the buyer’s signature.

If the client then returns after purchase and specifically states the problem, which you had made them aware of, you have the evidence to show that
 the buyer knowingly entered into the contract with the known fault, and thus it can be argued that you are not liable for that particular fault.


Please also be aware that if you are selling a vehicle as ‘unroadworthy’ you should not provide a current MOT or allow a test drive on the public highway.

 

Consultation is needed to change commission

Q: I want to change the rates 
of commission I pay my salesman. How do I go about this?

A: The process you follow will depend on the contracts 
of employment you currently have in place. If the payment is discretionary, then the rate can be altered or removed without the employee’s consent.

If the payment is considered 
to be a fundamental part of the employee’s terms of employment, you must consult with the employee regarding the proposed change and obtain their written consent.

This consultation process will include you speaking to the employee, explaining the rationale behind the changes, and issuing a formal written proposal outlining the changes so that they can take this away and consider it fully. You must make yourself available to the employee to answer questions.


Give the employee a 
deadline for the return of the written consent form and, once received, you must then give four weeks’ notice to the employee before the change takes place.
 You will then need to issue a new contract or amend any policy document before the change comes into effect.

If an employee refuses to give written consent but continues working for you, then their conduct can be deemed as valid consent. If the employee refuses to give consent and later resigns, they may have a case for constructive dismissal if the change is deemed unfair. However, in this case it would appear unlikely.

 

Here’s a way to see off hashtag hijackers

Q. Further to your website article about hashtag hijacking, what action can be taken against someone who is using your hashtag in a negative way, or if a competitor has used it to piggyback on your company’s goodwill to make themselves appear associated with you?

A. Thank you for the interest in our article, we are glad it’s provoked some thought! Having looked into this, at present in the UK
we don’t have the capacity to actually copyright or trademark-protect hashtags, so you couldn’t protect these from being used by other tweeters.

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This has become a trend in the US and it may be something that filters through to the UK in due course. However, if you already own a trademark
for your company name I don’t see why you couldn’t extend this protection to the trademarked name being used within a hashtag.

This is something we would need to explore if the situation arose. With regards to competitors using your hashtag, again, if this is your business name, you could pursue them for something called ‘passing off’, where a company seeks to use the good reputation of another business to drive customers towards them. This is something that is already an issue with website domain names, which we have already successfully dealt with for clients.

Join Car Dealer Club for £39.99 a year to get top advice like this when you need it. Go to cardealerclub.com for full details.

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Car Dealer has been covering the motor trade since 2008 as both a print and digital publication. In 2020 the title went fully digital and now provides daily motoring updates on this website for the car industry. A digital magazine is published once a month.

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