Liability on someone doing a prebuy check?

Peter wrote:

Notable differences between countries! Here in the UK there is no recourse for the buyer even if he can prove the (private) seller knew about the defects. The only recourse is if the seller made specific warranties e.g. said the engine was overhauled in 2013 but actually it was not.

What about the 2008 consumer protection from unfair trading regulations?

By my superficial reading, this would appear to mean that in the UK you can now take a seller to court for misrepresenting goods e.g. failing to disclose known serious faults. It specifically includes aircraft. The term ‘trader’ used throughout the document may refer only to business sellers but the definition is a bit circular so I’m not sure.

The reason I’m interested is that I have bought an aircraft from a man who knew (as evidenced by forum posts I have found) of serious problems with the aircraft’s engine and undercarriage before selling it. The aircraft was registered to his business address on g-info but as a permit aircraft I would assume that he owned it personally, rather than that it was held by a company.

I did commission a pre-buy inspection prior to handing over the cash. When the inspector arrived he filled out an FWA1 form which listed a number of defects, all of which were trivial. I phoned him to check that the list of defects given to me by the seller was complete and was reassured that the aircraft was worn but airworthy and that the spar, engine, airframe and covering were all perfectly serviceable as things stood. I paid.

The rest is history. The axles were bent. A wheel was broken. The logbooks were incomplete (e.g. a propeller change was not recorded). The magnetos needed about £800 spent on them (the seller stated that they were ‘recently overhauled’ but I didn’t think to check what he meant by ‘recently’). How did the pre-buy inspection fail? Despite an Email to him stating that the pre-buy inspection was intended as a pre-buy inspection, the inspector found that the aircraft was blocked into a dark barn by farm equipment (it seems this is true) and claims to have considered that the inspection was a preliminary permit inspection made with the caveat that he would complete a full inspection after the initial defects he identified were fixed and the aircraft was moved into more suitable surroundings. He’s neglected to reply to my question as to how he was able to reassure me that the engine was in good condition when he clearly couldn’t have run it.

I’m considering taking the seller, not the inspector, to the small claims court. Whilst selling the aircraft he claimed to live in Bulgaria, returning to the UK only infrequently as a business consultant, but was still on the electoral register fairly recently and has a business registered to a holding address in the UK. The entry in Companies House states that he is normally resident here.

I’d be interested in any opinions as to whether this would be a viable or sensible thing to do.

Peter wrote:

If this bothers you, don’t buy anything that is secondhand

Hah !

Like Manufacturers don’t hide anything and make 100% full disclosure on all the known defects of the products they sell ?

IIRC, your own experience with SOCATA speaks to this …

LeSving wrote:

Well, at most you will get your money for the cost of the pre-buy back. Responsibility and liability follows the money. If the pre-buy is very important to you, then get a second opinion from a second surveyor.

Sorry, LeSving, but clearly you don’t know the Swedish legal situation. I don’t blame you – I have no idea of what’s involved in buying a house in Norway – but I’ve bought houses three times in my life so please accept that I have some idea of what I’m talking about.

The pre-buy is extremely important when you buy a house in Sweden because the seller has none, zero, nada, zilch, responsibility for defects that could be spotted by an inspection even if he did know every detail of them.

As a Norwegian, you should be able to read this which explains the situation. Note the part about “ansvarsförsäkring” (liability insurance).

Peter wrote:

The pre-buy is not a warranty – the buyer is not going to get the cost of fixing whatever is wrong and did not get spotted. The question is going to be what the buyer would have done had the prebuy not been negligent.
The question of what the pre-buy engineer is expected to find turns on (i) what he was asked to do and (ii) what a reasonably competent professional in his position acting non-negligently would be expected to find.

I think this part sums it up nicely.

I wrote an article (actually two articles) for a magazine earlier in the year about pre-purchase surveys…

A few major points:

If you want to know how much is wrong with an aircraft then nothing short of an Annual inspection will suffice – and even that may not show everything, ie an air test would be required to show up poor climb performance or other strange flight characteristics, etc.

The snag is prospective purchasers don’t want to pay anywhere near the cost of an Annual inspection for a pre-purchase inspection.

Anything that isn’t written down as having been carried out in the aircraft’s workpacks and log books probably hasn’t been carried out – certainly don’t take anyone’s word for work work having been completed or the depth of said work.

People only write in workpacks and log books what they want to have read.

A lot of info can be gleaned by checking G-INFO (in the UK for UK registered aircraft), AAIB reports, Google etc etc.

It has to be clearly defined from both sides of the fence (prospective purchaser and inspecting engineer) exactly what is expected from the pre-purchase inspection regarding liabilities, required depth of inspection and so on.

Airborne_Again wrote:

As a Norwegian, you should be able to read this which explains the situation. Note the part about “ansvarsförsäkring” (liability insurance).

That’s interesting. In Norway it is opposite. The buyer can sue the seller for just about anything the first 5 years (or is it 10?), so the seller always get a “seller insurance”. The buyer can still sue the seller of course, but then he has to deal with an insurance company with lots of experience in these things instead of a private person with none. Nowadays you can also get a “buyer insurance”, an insurance that will cover the legal costs of lawyers etc (if you lose). That looks like a good idea at first look, but it really is nonsense, because in practice no one will sue the seller unless the fault is obvious and expensive to fix.

This is a special thing for houses between private parties. For any other thing it is simply sold “as is” between private parties.

PapaPapa wrote:

I know that in French law, a hidden defect is always the responsibility of the seller.

I do not think so. Not unless it can be proven that the seller was aware of the defect.

Peter wrote:

As an aside, does France not have the concept of buying “as seen” i.e. caveat emptor (“buyer beware”)?

Yes, they do.

Re the Consumer Protection from Unfair Trading Regulations 2008, these deal primarily with business-to-consumer practices. However, they also affect the following:

• Business-to-business practices that could affect consumers;
• Any aspect of a business-to-business practice that is directly connected to the sale of a product to consumers;
• Where a trader purchases a product from a consumer.

The question of what the pre-buy engineer is expected to find turns on (i) what he was asked to do and (ii) what a reasonably competent professional in his position acting non-negligently would be expected to find.

I fully agree. At least under English law (and I expect, other laws), this is critical and the reason why contracts are better in writing (oral contracts are possible, but then you have the issue of proving what the contract actually was.

Therefore, contracts should ideally always be in writing for more expensive/complex items, and you must clearly specify what the scope of works is, i.e. what you expect the pre-buy engineer to evaluate. The vast majority of disputes centre around what the scope of works (for services) or specification (for products) is and the client is best placed to determine what this should be.

For i) if the scope is “any problems with the aircraft”, this is extremely broad and may be useful to the buyer vs the pre-buy engineer as it ostensibly catches any problems, but any pre-buy engineer with half a brain would not accept that. You need to specify what you are thinking of as a potential risk and ensure that what is written in the contract captures that. If the pre-buy engineer’s scope included reviewing the accuracy of the logbooks and a problem arises which ought to have been identified by reviewing the logbooks, but the pre-buy engineer failed to do so, there may be a contractual breach by the engineer.

For ii) this relates to the duty of care. There is an implied term in contracts (s13, Supply of Goods and Services Act 1982) that the [pre-buy engineer] will exercise reasonable skill and care. Using the logbook example, there may be a tortious (negligence) claim against the engineer if he ought reasonably to have spotted errors in the logbooks. It might be that the pilot reviewed the logbooks, but did not have the relevant expertise or knowledge to spot an error, but the pre-buy engineer ought to have done so. In this sense, you want to ensure that your pre-buy engineer is familiar with piston aircraft. You would not necessarily expect a British Airways engine maintenance engineer working on 777’s to have the same level of skill in evaluating an entire SEP/MEP.

If the sale contract between you and the aircraft owner includes a warranty that something has been done but the seller knew it had not but knowingly failed to disclose it, this would potentially be a fraudulent misrepresentation which would potentially have the effect to remove any exclusions or limitations of liability in the sales contract but the burden of proof is on you. You might be able to have the contract rescinded (return the aircraft, sales price and other fees reimbursed to you). On the other hand, I expect the switched-on seller would include a clause stating that the buyer has been afforded an opportunity to undertake his/her own independent inspection of the aircraft and all records and logbooks and as such, the seller makes no representations or warranties other than that s/he is the owner of the aircraft and has the right to sell.

Unfortunately, lawyers tend to be expensive (although there are big efforts in the UK to move lawyers away from the hourly charge-out rate, but the pace of change is still very slow) so they are not involved in the first place. You end up with a contract that looks ok on the face of it until the problems happen…. I don’t know if there is a "standard pre-buy contract?

For France and the “hidden defect” (vice caché), I would not really rely just on that as the burden of proof is on the buyer, and if the hidden defect results in the prop separating in flight, you would probably have other things on your mind. Also, you would presumably want the pre-buy report in the first place in order to determine the price
you would be willing to pay considering any issues raised in the report.