Advice about backing out from a agreement to sell a bike

Lthefornax on 30/03/2017 - 18:17

Hello,

I had put up my bike for sale for a few months now and a few days back someone approached me with an intention of buying the bike. I was happy for that person to test ride the bike and at the end of it he made an offer for the bike which I agreed to indicating that I will have to check with the finance company about the money owed on the bike and based on that was happy to proceed with the sale provided the numbers worked out. I was given an advance of $250 in cash and in return I provided a written statement on a piece of paper with my signature indicating that I will sell the bike for the discussed amount indicating the 250$ advance was received. At no point was I told that it's a contract and I'll have to proceed with selling the bike. I called up the finance company enquiring about the payout amount and understood I was making a huge loss if I went ahead with the sale of the bike. I immediately informed the interested buyer about the same informing that I'm backing out of the sale and was happy to return the advace paid. However he has been adamant that I can't back out of the sale now. After holding my ground about not wanting to proceed with the sale I received a call from a stranger the next morning who identified himself as a friend of the buyer and kept insisting he is coming to pick up the bike the next day and mentioning several times that they knew where I lived and I can't back out of the sale.

I sent a text requesting the buyer not to contact me further and harrase me about the bike and that I was happy to return the advance paid and was going to report to the police if it continued. And today I received another text from an unknown number which showed that the buyer has lodged an application of injuction in preventing me to sell the bike at ACAT tribunal indicating that it is a rare bike.

I wanted the advice of fellow members to understand if I am at wrong legally in not wanting to sell my bike at a huge loss within 24 hours of agreeing to sell.

Thanks in advance.

Financial

Comments

  • altomic on 30/03/2017 - 18:22
    +19

    bikies

    At no point was I told that it's a contract and I'll have to proceed with selling the bike.

    but it was an agreement to sell?!?!?!

    anywho, 24 hour cooling off period.

    return deposit. record and then ignore texts, move on.

    any hassle then police

    • bobbified on 30/03/2017 - 18:31
      +1

      that's the exact line from OP's post I was going to pull out!
      But you beat me to it! haha

    • thefornax on 30/03/2017 - 18:33

      I provided that written statement as evidence that i received cash as advance. I wasn't told it is an agreement in principal that i have to adhere to all costs. I didn't wait a week or so inform him. He made the offer on a Sunday i informed him about my decision on Monday evening as i could not reach out the finance company on a Sunday.

      • bobbified on 30/03/2017 - 18:41
        +29

        I was given an advance of $250 in cash and in return I provided a written statement on a piece of paper with my signature indicating that I will sell the bike for the discussed amount indicating the 250$ advance was received.

        To be honest, I think you'll eventually be able to get out of this one.

        But your ignorance re signing agreements/contracts worries me.

      • Scrooge McDuck on 31/03/2017 - 11:41
        +23

        I was given an advance of $250 in cash and in return I provided a written statement on a piece of paper with my signature indicating that I will sell the bike for the discussed amount indicating the 250$ advance was received. At no point was I told that it's a contract and I'll have to proceed with selling the bike.

        You weren't told it was a contract because you wrote it yourself!

        • Scrooge McDuck on 31/03/2017 - 11:43
          +22

          I think you were quite happy to sell the bike at the agreed price, but later felt seller's remorse.

          And now you're trying to spin it as though you didn't make any agreement.

        • Scrooge McDuck on 31/03/2017 - 11:57
          +32

          @Scrooge McDuck:

          Sympathy factor: Low

        • DaneD on 31/03/2017 - 16:42
          +2

          @Scrooge McDuck:

          More support for this, clearly an agreement was reached otherwise why take the $250 deposit?

        • darkchoc on 31/03/2017 - 22:59
          +4

          @DaneD:
          Agreement may or may not be valid. But nobody can/will enforce a sale practically speaking.

          Finance was not agreed to be paid by seller. So agreement had not been fully reached.

          People do make mistakes. Seller did. Buyer too as the finance was not agreed upon. This is life. Apologise and move on. If the other party can't accept it, that's their problem to pursue.

          Human error happens, just have to be apologetic if you made the mistake. If you're on the receiving end, you can be an arse or move on.

        • Lysander on 02/04/2017 - 00:27

          @Newplace:

          Agreement was not fully reached? What?

          Agreements are not progressive. Either one is reached or not.

          One can make an agreement to reach a price letter provided a mechanism is provided for.

          Alternatively, the situation here sounds as if the OP should have put "subject to contract" to make clear that the piece of paper was not a proper contract.

          Also, it is OP's fault for writing more on the paper than he or she needed. Receipt of $250 would have been sufficient.

        • darkchoc on 02/04/2017 - 09:47
          +1

          @Lysander: hi!

          The slip of paper didn't stipulate that the bike will be sold with/without encumbrances.

          So it's not a complete agreement (all the terms were not outlined).

          In this instance, a seller could argue that is sold with finance outstanding. The buyer would just say no way. Since that key point is not agreed upon in writing, the agreement is not complete.

          So it's OP's fault - yes. It's also the buyer's fault to not check encumbrances and to clarify in writing that it will be bought free of encumbrances.

        • Lysander on 02/04/2017 - 12:04
          +2

          @Newplace:

          I am afraid it is not that simple. I am currently arguing a case in court where the defense tries to claim incompleteness but given the extensive case law in this area and in field of implied terms they now start to change tactics.
          Courts have the power to "heal" contracts and imply terms, for example if such terms are ordinarily implied in the industry, if it is custom to imply such term, if an ordinary bystander would say "of course such a term needs to be implied" etc.

          The OP might not have to deliver up bike but I think, from little info we have, that he might have to pay compensation (difference between what he would have paid with OP and what he now had to pay elsewhere).

        • darkchoc on 02/04/2017 - 15:23

          @Lysander:
          The exchange of the full amount nor the goods have not taken place. Nor have the terms been established for the exchange.

          Secondly, the seller would show that s/he made a mistake, offered to return the deposit fully in 24 hours. That shows that s/he has been reasonable given the circumstances.

          The time and costs of pursuing legal judgement, then legal enforcement (if the judgement was successful) would be prohibitive for the buyer for this matter. Especially if a magistrate sees that the seller offered a full refund.

          In this instance the seller found out that the bike had finance outstanding greater than the sale price after taking the deposit.

          It's a mistake for sure. Best to offer the deposit back (and maybe a few dollars on to cover buyer expenses at a push of legal avenues are taken - to demonstrate that that the seller is reasonably trying to settle the trivial matter rather than use court time).

        • Lysander on 02/04/2017 - 19:59

          @Newplace:

          Sorry but a mistake in law is different than the one you allude to.In fact all judges I know personally would consider OP's behaviour negligent or reckless and hence that is his or her own fault. There is no category of mercy or sympathy mistake. The OP is certainly not innocent here.
          Depending on where you are legal proceedings can cost as little as 50-100 dollars, namely via the Civil and Administrative tribunals in the state.

          The OP is best advised to settle as otherwise he could find himself at the end of legal proceedings.

          If I found a great item for a good price and the seller refused to sell I would certainly pursue the matter.

        • darkchoc on 02/04/2017 - 20:41

          @Lysander: on top of legal proceedings costing 50-100, what about the cost to enforce a legal proceeding?

          A tribunal/magistrate would consider reasonable offers to settle were offered by the seller and what actual losses were incurred in the timeframe.

          Actually, i completely agree with you, OP is best placed to offer to settle the matter.

        • Lysander on 02/04/2017 - 21:47

          @Newplace:

          There is compulsory mediation before a trial. The majority of people settle there.
          Enforcement of a judgment relating to debt: debt collection service if it ever came to that.

          Also, if we are talking about a 5000 dollar bike, paying a couple of hundred dollars is fine.

          Paying back the advance would not be considered a reasonable offer, especially if the next similar bike available costs more money.

  • Vieira4 on 30/03/2017 - 18:34
    +28

    You only called the finance company after putting it up for sale and agreeing a price?

      • Vieira4 on 30/03/2017 - 19:52
        +22

        I thought it was your duty to inform your finance company prior to putting something up for sale when they have a financial interest in the item.

  • Ughhh on 30/03/2017 - 18:38
    +37

    I called up the finance company enquiring about the payout amount and understood I was making a huge loss if I went ahead with the sale of the bike.

    You didn't check your part of the finances first??? I'm not surprised the buyer is pissed off.

    • doodo477 on 31/03/2017 - 21:30
      +4

      Side note, I wouldn't purchase a second hand vehicle/bike if it still has outstanding amount still owed to any creditor.

      • dji1111111 on 01/04/2017 - 11:37
        -3

        Why not? If you don't know how to eliminate the risk of buying something under finance, you don't understand how financing works at all.

        • doodo477 on 01/04/2017 - 12:53
          +10

          wow who died and made you financing lord?

          Lets talk about the elimination of risk. When purchasing a car without any creditor's the only thing I have to do is do a simple owner MVR search to make sure the ownership is in the person who is selling me the asset. After handing over the bankers cheque its the local trip down to the States/Territory MVR with the purchase contract and paying the stamp duty, fees, and ownership transfer charges. So my risk is very small as it should be.

          Now lets say I purchase a vehicle off a person off gumtree or ebay. They have an outstanding car-loan, and it shows on some credit report. I proceed with the purchase, and part of the purchase contract they agree to pay all out-standing debt owed to the creditors with the proceeds for the sale. Now they decide to do the dirty or find out from their creditors that for a full payout figure its going to be significantly higher than our purchase contract amount. They decide to do the dirty, and default on the car loan. I now have to negotiate with his financing company that wants to reposes the vehicle because technically they still own the asset, and I've just become a unsecured creditor.

          One has a very small risk and the other has a high amount of risk depending on the purchase contract and also the seller. I rather go with one that have low amount of risk even paying a little bit more money.

      • Christy Bambi on 01/04/2017 - 16:09
        +1

        I bought two cars like that, just bought out the amount of owing to the finance company. And gave the remaining money owing to the owner for the car. It was funny one time, the car was in arrears of 99% to a finance company and the owner only owned 1% so ending up giving the owner 400 dollars for a nice audi because thats how much he owned of it.

        • doodo477 on 01/04/2017 - 16:23

          Thanks Christy Bambi. Nice to hear how to proceed in future if the car has financial interests associated with it.

        • drprox on 02/04/2017 - 07:10

          Lol that is a funny one. Yep you just grab that payout figure and pay straight to financier :)

        • yesiamcheap on 02/04/2017 - 20:39

          just curious, how was that a good deal for you?

        • Kangal on 02/04/2017 - 21:19
          -1

          @yesiamcheap:
          Sounds like a horrible deal. Unless there's something I don't understand.

          I mean if the car had a $60k loan, and there was $59k owing on it…
          …well technically you've just paid $59k for a car that's been used and depreciated.

          You'd want to buy-out from someone who has paid most of the finance, at a price lower than street value, so that you actually get a bargain/profit from it. Right?

        • [Deactivated] on 02/04/2017 - 22:26
          +1

          @Kangal:
          I think it would be more like: Started at $60k loan, was owned for a year or two while payments were made. Lets say depreciated price is $40k but there is still $39k owed on the loan, so the payments made have essentially just covered the depreciated value and the owner has only a $1k stake in the vehicle.

        • Kangal on 02/04/2017 - 22:34

          @bercilak:
          Still a horrible deal to the buyer. They're much better off spending $40k on the same car from another seller that doesn't have any finance on it/owns it outright.

          If it was a case like the car was worth $60k, has depreciated to $40k value, and there is only $25k owing on the finance… and the seller agrees to do a simple transfer of the title and transfer the loan… well then, and only then, it makes sense (or is a value) to purchase the vehicle.

          I think a 70% difference between actual value and amount owing is a good starting point. Otherwise its financially dangerous.
          (ie/ a $50k value, but only $35k loan)

        • [Deactivated] on 02/04/2017 - 23:17

          @Kangal:
          Depending on how the loan was to be dealt with to how financially dangerous the transaction would be. I would treat it as two sellers, on gets $1k, the other $39k, then it shouldn't be much different to dealing with one seller and the financial liabilities should be dealt with.

          I wouldn't even bother buying a car if the seller wanted the loan to be transferred, too much hassle and risk unless you were going to pay it off straight up (even then there are probably plenty of fees and charges hidden if it is an early payout).

          I definitely agree that you would be wanting to get it at a price lower than street value, I wouldn't even bother looking at it for a small saving.

    • Ahbal on 01/04/2017 - 23:15

      Your username was my reaction when I finished reading the OP.

  • derrida derider on 30/03/2017 - 18:45
    +39

    Get real. Moral questions aside (self-respecting people believe their word is their bond) you have made definitely made a legal contract. You can't just back out because you later find out the deal wasn't as good as you thought.

    You're actually lucky the seller is pursuing the legal way, and not just turning up with a couple of mates to give you less legal encouragement to do the right thing. Give the seller the bike for the agreed price, congratulate him on snagging a bargain, and next time do your homework.

  • MrHyde on 30/03/2017 - 18:51
    +13

    As others have pointed out, what you put down on paper is definitely a contract to sell. What you should have done.

    1) Even before putting the bike up for sale have contacted the finance company and worked out your numbers on what would be an acceptable price.

    2) Failing #1, on the contract, have put a clause saying the sale was subject to finance company response.

    Saying all that, the buyers only option would be to go the legal path where anything can happen - the contract could be torn up or he could win. Well, he could go the bikies option as well; but it looks like he is trying the legal route first.

  • djkelly69 on 30/03/2017 - 18:56
    -1

    Assuming it happened as OP says it did, irrespective of what is written on the piece of paper, the true agreement between the parties was that OP only agreed to sell subject to confirmation of the amount of the loan outstanding on the bike.

    Proving this at a court/tribunal would be somewhat difficult, but it is extremely unlikely to get there. Have you contacted ACAT to see if it is legit? They certainly didn't send me any messages when I had a matter there.

    Have to say however it is very unusual that someone would offer something for sale and essentially not check if they actually want to sell it beforehand.

    Also anyone saying it is "definitely" a contract, particularly without seeing the document, needs to go back to contract law 101 - if OP had no intention to be legally bound by the document, then it is not a legally binding contract.

    • ssyl9 on 30/03/2017 - 19:08

      I was given an advance of $250 in cash and in return I provided a written statement on a piece of paper with my signature indicating that I will sell the bike for the discussed amount indicating the 250$ advance was received

      This is as contractual as it can be being a sales agreement with deposit though.

      if OP had no intention to be legally bound by the document, then it is not a legally binding contract.

      However if the other party's intention of providing that the document for op to sign is a legally bound document, wouldn't it still be a legally binding contract?

      • SirFlibbled on 31/03/2017 - 16:13
        +2

        The problem the OP has here is that the contract was conditional on him checking with the financer about the loan. However, he then signed a bit of paper accepting the buyer's offer which it appears the OP didn't mention that condition.

        If you put the terms of the contract in writing, the conditions must me in that written form (Parol evidence rule). Any promises outside of the written contract wouldn't be valid. This is obviously subject to things like implied terms, but that wouldn't count here.

        If the OP just signed a piece of paper as a receipt for $250, then the original condition would be valid.

        • stumo on 01/04/2017 - 14:09

          But op doesn't own the bike. Can't the finance company reposess it from the buyer, if the seller stops repayments? Why would the buyer go through with this deal anyway?

        • [Deactivated] on 01/04/2017 - 18:58

          @stumo: I'm pretty sure in Australia that the bank loans money rather than purchasing the item and holding it for you but tbh idk I've never purchased a car through finance.

          Don't take my advice btw from what other people have I'm probably wrong.

        • SirFlibbled on 01/04/2017 - 20:08

          @stumo: Depends on the loan. If it's a personal loan, then the OP is liable for the debt regardless of if he has the bike or not.

          If the bike is registered on the PPSR then it might be different.

    • derrida derider on 30/03/2017 - 20:00
      +5

      "if OP had no intention to be legally bound by the document it is not legally binding contract"
      Except the OP must demonstrate his lack of intention, eg that he could not reasonably be expected to understand what the document said. He's already admitted he INTENDED to sell it for said price and he actually took a deposit, so he hasn't got a leg to stand on.

      • djkelly69 on 30/03/2017 - 22:02

        I dont disagree that OP would need to demonstrate his lack of intention, or that the signed document would be prima facie evidence of his intention to sell/be bound.

    • random110 on 31/03/2017 - 00:34
      +2

      Speaking of going back to contract law 101 - you might recall that the parole evidence rule prevents extrinsic evidence being considered.

      In the context of a written agreement between unrelated parties and consideration, arguing that that the OP had no intention to be legally bound would be challenging.

      • djkelly69 on 31/03/2017 - 01:12

        I would say it restricts rather than prevents extrinsic evidence being considered (ie. there are a number of exceptions). And also only applies when the contract is intended to be a conclusive record of the entire agreement between the parties, which is arguably not the case here.

        You might also argue the reverse 'subject to finance' clause was a pre-condtion to formation of the contract (which wasn't satisfied), so the contract never came into force.

        However, as stated above, I agree it seems unlikely there would be much evidence to support the OP's claim that this 'subject to finance' was ever stated let alone agreed so would be a difficult argument to run.

        • -.- on 01/04/2017 - 15:27
          -2

          N.B. The below is not legal advice, but just a summary based on my understanding of the law.

          There is no doubt that a valid contract had been made. One of the fundamental rules in Contract Law is that a person who signs a contractual document will be bound by the terms in that document, regardless of whether he or she has read or understood those terms (Toll (FGCT) Pty Ltd v Alphapham Pty Ltd (2004) 219 CLR 165 citing L’Estrange v F Graucob Ltd [1934] 2 KB 394).

          The question is whether the 'subject to checking finance' term may be construed as an actual pre-contractual warranty (and therefore contractually binding) or not (Oscar Chess Ltd v Williams [1957] 1 All ER 325). Now I would say that such a clause would certainly not have been a mere 'puff' in the Carlill v Carbolic Smoke Ball Company [1893] 1 QB 256 sense, nor would it have been a mere representation with no contractual force. Now the test is what 'an intelligent bystander would reasonably infer', rather than what was actually intended by the person making the statement (Oscar Chess Ltd v Williams [1957] 1 All ER 325, 328). The intelligent bystander must be in the situation of the parties (Reardon Smith Line v Hansen-Tangen [1976] 1 WLR 989). There are a number of secondary factors that can be considered (Ellul and Ellul v Oakes (1972) 3 SASR 377, 387 per Zelling J):

          • Time: The time which elapsed between the time of making the statement and the final manifestation of agreement should be considered; if the interval is a long one, this points to a representation.
          • Importance: A statement which is important is likely to be classed as a term of the contract
          • Execution: If the statement was followed by the execution of a formal contract in writing, it will probably be regarded as a representation should it not be incorporated in the written document.
          • Position: Where the maker of the statement is, vis-a-vis the other party, in a better position to ascertain the accuracy of the statement, the Courts will tend to regard it as a contractual term.

          On balance, since that term was not a statement merely as to belief, it's more likely to be viewed as a contractual term.

          Now the term may be construed as a 'condition precedent', i.e. the performance of the contract is suspended until the fulfillment of that particular condition. Non-fulfillment of a contingent condition will entitle the seller to terminate the contract of sale. If the condition was that the seller, should be given the opportunity to check the finance on the bike, and then evaluate whether to proceed on the basis of his/her satisfaction, then we also have to examine whether such satisfaction is reasonable or not. This is unclear in Australian contract law (Meehan v Jones (1982) 149 CLR 571).

          By the way, you are correct regarding the parol evidence rule: it only applies when the contract is wholly written, pulling up some old case law:

          The classic explanation of the parol evidence rule is that given by Denman CJ in Goss v Lord Nugent (1833) 5 B & Ad 58, 64-5; 110 ER 713, 715-16:

          ‘[I]f there be a contract which has been reduced into writing, verbal evidence is not allowed to be given of what passed between the parties, either before the written document was made, or during the time that it was in a state of preparation, so as to add to or subtract from, or in any manner to vary or qualify the written contract.’

          The rule only applies to exclude extrinsic evidence of terms supplementing a wholly written contract (Hoyt's Pty Ltd v Spencer (1919) 27 CLR 133, 143). Therefore, the party seeking to incorporate oral statements, will attempt to argue that the contract was only partially written, and vice versa.

          State Rail Authority of NSW v Heath Outdoor Pty Ltd (1986) 7 NSWLR 170:

          ‘[The Parol Evidence Rule] … has no operation until it is first determined that the terms of the agreement are wholly contained in writing. The tendering of oral evidence to prove a contractual term, therefore, cannot be excluded until it is determined that any terms in writing record the whole of the parties' agreement: Corbin on Contracts (1950), vol 3, p 385; Air Great Lakes Pty Ltd v KS Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309, 337.’

        • arcticmonkey on 02/04/2017 - 20:51

          @-.-:

          Do you have a legal background?

        • -.- on 02/04/2017 - 20:53

          @arcticmonkey: I did study law at uni, but I'm not a lawyer. Bit of legal knowledge never hurts

  • ssyl9 on 30/03/2017 - 19:01

    A cash advance with a signed agreement is a contract no matter what you deem it to be (agreement to sell is a contract)

    You should mention the 24hour cooling off period and see what they think, if you didn't state the 24hr cooling period in the sales agreement then I don't even think you can have that hold against them

    ACAT ruling might be in buyers favour if nothing is stated in the contract about cooling off or buyer has right to refuse the transaction anytime before the delivery with full deposit returned. You should have a 24hour cooling period, but since the buyers aren't made aware, it can still go south.

    If its me i'll just sell it and suffer the loss. I mean, things can go much worse than ACAT since they do know where you live…

    Yes as i had not received any offers from anyone previously.

    You should have called your finance company when you put it up on sale to know what fees you will be having as well as any possible losses… not when someone already agreed to buy your bike

  • chumlee on 30/03/2017 - 19:07
    +21

    Just tell the buyer you agree to sell at the negotiated price and it's his responsibility to takeover finance payments. He will quickly back out of the deal. Unless you put it in writing that you will pay out the finance on the bike you are under no obligation to settle the finance owing

    • try2bhelpful on 30/03/2017 - 19:26

      That is an interesting idea, not sure how legal it is but it would give the buyer something to think about.

      • derrida derider on 30/03/2017 - 20:05

        Its not legal at all - you can't just reassign your debts to someone else at will.

        • chumlee on 30/03/2017 - 20:28

          You will find it's legal if you research it

        • random110 on 31/03/2017 - 00:39
          +4

          If the bike is security for the finance, then the OP would simply be selling the bike subject to the encumbrance. I would suggest that is entirely legal. Unless the 'contract' has a clause stipulating that the bike is sold free of all uncumbrances, than this might be a reasonable strategy for the OP

        • try2bhelpful on 31/03/2017 - 09:03

          @random110: I would think the "contract" would have to explicitly indicate that the encumbrance transfered to the new owner; that is certainly something to keep in mind for future reference.

        • doodo477 on 02/04/2017 - 02:31

          @chumlee: Your obligation (debts) is not assignable unless you have the creditor consent.

        • doodo477 on 02/04/2017 - 12:33

          @chumlee: My prior comment stands, your obligation is not assignable/transferable without the creditor consent. Such its your responsibility to make all the necessary check's on purchasing the asset if it still has outstanding financing.

      • MrFunSocks on 31/03/2017 - 15:18
        +7

        It's legal. It's why whenever you buy a second hand car you should get a REVS check to see if there is any money owed against it. If you don't do that and you buy the car, you inherit the debt because you bought the item that has debt attached to it.

        http://www.revs.com.au/what-revs

        • doodo477 on 02/04/2017 - 02:46
          +1

          You don't inherit the debt. If the vehicle did have financing associated with it and they default on their car loan. Congratulations you've just become an unsecured creditor. The bank can take any number of choices. They can sell the debt or assign the collect of the debt to a collection agency and the collection agency is entitled to enforce that debt.

          Your other options is to do a REV's check and find out what financial situation was before you purchased the asset. Hopefully it doesn't have more than one creditor. Then approach the creditor's to negotiate a new contract with them to pay out a percentage of the total debt that is outstanding.

          Lastly you can lawyer up and sue the original owner for damages and breach of sales contract. Depending on your car loan and contract with your current bank, you may have to give them a phone call and inform them the vehicle has been repossessed by the prior creditor.

        • MrFunSocks on 02/04/2017 - 17:50
          +1

          @doodo477:you're still essentially inheriting the debt that is on the car. You bought it, but the bank or whoever could turn around and take it from you unless you pay the amount owing.

    • ssyl9 on 30/03/2017 - 19:26
      +2

      actually very legitimate call

      As the contract did not state anything about the finance, OP can actually do that (ask the buyer to cover the remaining finance costs)

      Since he also have mentioned about checking with the finance company, he can also say it is verbally agreed. What more he can even bring the transfer of loan documents for the buyer to sign and said these are the finances he is taking over.

      Bear in mind though, the buyer does not sound like a Mr Niceguy in any stretch. Even he is pursuing it legally now, it doesn't mean he will use other not so legal methods to make OP comply.

      • derrida derider on 30/03/2017 - 20:20
        +4

        Its the OP who's not Mr Niceguy here. The buyer has a right to be pissed.

        Why would the buyer sign such a document? And why would the finance company agree to it in any case? The OP will find that his loan agreement specifies he cannot sell the collateral without his creditors' permission and if he does they can repossess the bike. That's exactly why there's a Register of Encumbered Vehicles, which the buyer would have been wise to check but is not legally bound to do so. If that happens the buyer will and should head straight for the lawyers and everyone will find life very expensive for a long time.

        Tell the finance company what you've done, get their permission and hand over the bike, then pay out any residual loan ASAP, in everyone's interest.

        • ninjawarrior on 31/03/2017 - 01:46
          +3

          That's exactly why there's a Register of Encumbered Vehicles, which the buyer would have been wise to check but is not legally bound to do so. If that happens the buyer will and should head straight for the lawyers and everyone will find life very expensive for a long time

          Would the buyer's opening line be "the seller told me he had to check with his finance company as to how much was owed on the bike, but I insisted he sell it to me regardless of that money owed, and now that it's mine I also insist he pays off my bike"?

          Completely agree that OP made a mistake here, but if I had "friends" who sent text messages saying they knew where the OP lived, I wouldn't be so quick to claim that I've done nothing wrong.

    • ninjawarrior on 31/03/2017 - 00:55
      +5

      Is your finance registered against the bike itself, or did you take out some sort of personal loan to buy it?

      If it's the first option, it should automatically transfer to the buyer when he registers purchase of the bike. Same as with cars, which is why it's always "buyer beware" when it comes to private sales. If you buy a financed car, you're stuck with the payments. You even gave him notice of the finance, it's his problem.

      A lot of people here arguing about tribunals and enforcement and what not. They're not wrong, you have a "contract" in the truest sense of the word, but I have serious serious doubts about any tribunal forcing you to sell it. One sentence on a piece of paper is absolutely useless, speaking in practical terms. There is so much missing that it's impossible to enforce e.g. no information on when and how to take payment, hand over the bike or anything like that.

      Also, give us more information about this "injunction" trash - sounds like the buyer has a very eager lawyer friend.

      As for the threats, that is up to you. Leave out the bike completely for a minute - how would you normally deal with threats like that? If it is worrying, report it to the police because "he promised to sell my friend a bike and has backed out" is not a good enough reason to threaten or assault someone.

  • Pharos5 on 30/03/2017 - 19:11
    +14

    Forum posts where you're the seller "it's definitely a binding contract, think of it as an expensive lesson"

    Forum posts where you're the buyer "there's definitely no way to enforce it, think of it as an expensive lesson"

    Lots of lessons and lawyers 'round these parts.

    • Scrooge McDuck on 31/03/2017 - 12:01
      +9

      It's difficult to sympathise with dumb people.

      • spiffycashew on 01/04/2017 - 17:59
        +1

        Congratulations Scrooge McDuck, well done on being so smart that you never made a serious mistake in your life! :) :) :)
        Remember that we were all naive once upon a time

        • Scrooge McDuck on 01/04/2017 - 18:32

          Not all people make mistakes of all levels of seriousness.

          Dumber people make more serious mistakes that less dumb people don't make. That's what's difficult to sympathise with.

          PS: Username checks out.

        • spiffycashew on 01/04/2017 - 18:48
          +3

          @Scrooge McDuck: Superiority complexes make us feel warm and fuzzy don't they :)

        • Scrooge McDuck on 01/04/2017 - 18:52

          @goodguy:

          The majority of people are superior to dumb people.

          If you want to equate yourself with dumb people, go right ahead.

  • asif3307 on 30/03/2017 - 19:22
    +5

    All of the terms must be agreed on

    If the agreement is incomplete, in other words, if the parties have not agreed on all of the essential terms of the agreement, or have agreed on some terms but are still negotiating or discussing others, there will be no legally binding agreement.

    For example, John has offered to sell his yacht to Jim, and Jim has agreed to buy it – it’s a fine vessel! John later decides that he doesn’t want to sell the yacht after all – to Jim’s frustration as he begun making arrangements to purchase it. Jim wants to force John to sell the yacht based on their initial agreement. However, the court would not recognise the agreement as a legally binding contract, because all the terms of the sale were not agreed upon, such as the purchase price, and other essential items.

    In other words, the agreement must be “complete.” All of the terms of the agreement must be decided and agreed upon by the parties.

  • spackbace on 30/03/2017 - 19:28
    +21

    Eh, if they take it, they take an encumbered bike, and it's their job to get the finance off it ;)

    • altomic on 30/03/2017 - 19:54

      excellent point.

  • try2bhelpful on 30/03/2017 - 19:31

    Not sure about the legality of anyones advice here but the takeaway is to make sure you have all your ducks in place before signing any agreements. Do all relevant research, make sure you understand exactly what you are doing. Also, you might want to confirm the ACAT ruling is actually true - smells like a lie to me to get you to cave in. The fact that you are being pressured is a reason to go to the cops with the messages and see what they think. Especially if this gets nasty later on. Document everything that occurs, you may need it in a court case.

  • AdosHouse on 30/03/2017 - 20:26
    +3

    Honestly OP, I would be raging if you did that to me. For all I know, you needed some money overnight and took my money, did whatever with it, and now just want to give it back.

    You did have a contract, no matter what you want to call it. There was intent to sell (you listed it for sale), an intent to buy (he offered you a price), and an agreement, he gave and you took a deposit. That is a contract.

    • [Deactivated] on 01/04/2017 - 19:07

      If someone says they are reliant on finance and you decide to give them $250 so no one else buys it and then he doesn't get finance that's too bad. If you don't trust he's awaiting finance approval don't give him $250. It's pretty clear unless hes lying about the side verbal agreement. If it is true that you can make a written agreement and then enforce it over the verbal one just cus then that just makes the person a swindler and the seller naive. Maybe the buyer didn't understand the verbal terms or buyer is cheesed off if seller added conditions on after the $250 had paid which would change my opinion.

  • ronnknee on 30/03/2017 - 21:56
    +2

    Try imagining yourself on the other side of the deal. You would be pretty pissed off too if someone agreed to sell you something and then suddenly they throwaway the deal. You should've done your research before agreeing into anything.

  • Randxyz123 on 30/03/2017 - 22:01
    +7

    I provided a written statement on a piece of paper with my signature indicating that I will sell the bike for the discussed amount indicating the 250$ advance was received. At no point was I told that it's a contract

    Then what is it?

    https://www.accc.gov.au/consumers/contracts-agreements/enter…

    24 hour cooling off period is for the BUYER not the seller.

    I would be furious if I were the buyer. He paid a deposit therefore it's a contract and it's binding.

  • Xetrok on 30/03/2017 - 22:21
    +1

    To be honest, what's the effort involved in them actually enforcing this contract?
    They might be able to take you to court, you would explain your circumstances, magistrate might want you to refund their deposit, court fees and any payments made doing a background check on the bike I would imagine.

    Ask them for their address and inform them you will be sending their deposit back to them with an additional $50 to cover petrol/tolls etc for the inconvenience.

    If they keep pressuring you, apply for a restraining order, send them the money and be done with it.

  • r2160 on 31/03/2017 - 07:27
    -2

    On any contract of sale there is a 7 day cooling off period. Return the deposit and tell them to go away

    • Ughhh on 31/03/2017 - 11:26

      Wrong. On top of that, this is a private sale, so cooling off period doesn't apply, and if it did, it only applies to buyer.

  • Big Trev on 31/03/2017 - 08:41
    +6

    Sorry OP, but if you did this to me I'd be bloody annoyed as well.

    As for receiving a text about a "legal injunction", you can ignore that as far as I'm concerned - legal notices don't come by SMS.

    If you want legal advice, then go to a lawyer. I'm no bush lawyer, but I don't think what you've done will be enforceable in a practical manner; ie. any legal action would probably cost more in fees and hassle than it's worth.

    You're still a pain in the ass though, and the sort of person I hope I don't encounter whenever I'm buying or selling.

  • Brisxr6t on 31/03/2017 - 09:15
    -4

    1> Tell him to come round and sort it out like a man instead of getting his many boyfriends to txt and call you.

    2> "Show" him that he will not be buying it.

    = winning.

    Besides, the finance company would own it if under finance, so really he would be receiving stolen goods as you do not have/should not have the right to sell it without the finance companies approval.

  • Hoju on 31/03/2017 - 09:16
    +1

    Offer to give him $500 back instead of $250.
    Compensate him for wasting his time at the very least.

    I sold a road bike to some kid that had no idea how to ride it. He called me back next day said it was too hard to ride, but he'd give back bike and take $100 less refund. Everyone happy and acknowledgement of mistakes.

    • Scrooge McDuck on 31/03/2017 - 12:08

      but he'd give back bike and take $100 less refund.

      How many times did he drop it though?

  • Seraphin7 on 31/03/2017 - 09:20
    +8

    Covered by previous comments here … from a moral perspective you are 100% obligated to sell the bike to the buyer on the terms you agreed. My opinion is there is a legally binding contract that would be enforceable by the buyer. Whether or not the buyer chooses to go down that road should you renege on your arrangement is a matter for speculation.

    Either way, you're a poor seller. Imagine if you walked into a shop, put a deposit down on an item and came back the next day to pick up, only to be told, "sorry, I don't want to sell it to you at that price". Most people would be screaming blue bloody murder and rightly so.

    • darkchoc on 31/03/2017 - 23:12
      +2

      But the treatment of finance secured on the bike was not agreed.

      Therefore the terms are not agreed.

  • backpaqer on 31/03/2017 - 10:11
    +3

    Well…the buyer could be in a pickle if the finance company holds an interest over the bike. If the buyer does win and forces you to sell the bike to them and the bike is still encumbered by a registered financial interest…if you then stop making payments on the bike, the finance company will repossess the bike FROM THE BUYER.

    This is why you do a financial interest check on a vehicle before buying otherwise you leave yourself exposed.
    You are actually doing the buyer a favour and protecting them. You can renegotiate a price that will give them a bike with no registered financial interest and risk of repossession.

  • [Deactivated] on 31/03/2017 - 10:29

    Always do a revs check as it indicates if insurance has written it off because of repair costs exceeding the value of the bike as well.
    So a panel shop buys it at auction for bugger all, fixes it up cheap, even if the wheels no longer line up (speed limits 130 max right) and straight back out on the secondhand market
    If they don't want you testriding their bike, do the check first,for $3.60 it will show why so many vehicles are so overpriced as well, as these idiots have signed finance deals to pay loans that double the costs

  • Scrooge McDuck on 31/03/2017 - 12:11
    +8

    inb4 DisabledUser213959

    Scrooge McDuck on 31/03/2017 - 12:11 (Collapsed - Offtopic. Show)
  • WT on 31/03/2017 - 13:40
    +4

    Just wondering, what sort of bike it is

  • dawannabe on 31/03/2017 - 15:20
    +1

    OP you just need to explain to the seller that if you sell for the agreed amount you will not be able to payout the loan therefor the bank will still own the bike after it has changed names. Not many people will want to purchase an encumbered vehicle.

  • justinh93 on 31/03/2017 - 15:34

    Just lose the bike….. lol.

  • ozbjunkie on 31/03/2017 - 15:37

    Never specified an exchange date, if worse comes to worse… You 'will' sell him the bike… But not for years and years and years.

  • Finde on 31/03/2017 - 15:44
    -5

    You will find that 99% of time, courts will throw out "contacts" such as yours. For courts to take them seriously, they have to be official, typed up documents. Not just something that was scribbled on a piece of paper.

    • Finde on 01/04/2017 - 17:08
      +2

      Guess years of experience as a police officer and seeing it happen first hand countless times means nothing.

      • johnno07 on 03/04/2017 - 11:41
        +1

        I'm guessing there are other reasons why they are thrown out. Contracts can be typed, handwritten, verbal, sign-languaged - whatever. Enforceability is made harder when the contract is less physically tangible - it doesn't mean they aren't valid. I can't immediately see why a handwritten contract would be any less enforceable than a typed one though.

        • Finde on 03/04/2017 - 23:01

          When I say typed, I mean written up professionally by a lawyer.
          A magistrate will look at a piece of paper like this and think nothing of it because as OP has demonstrated, most people have no idea what they are really signing and so generally speaking, unless it is done correctly through lawyers and everyone has a full 100% meaning of what it is, a magistrate will throw it out.
          All OP has to say to the magistrate is he didn't really understand what he was signing and it's gone.

        • johnno07 on 04/04/2017 - 15:18

          @Finde: Unless one party is at a significant disadvantage (elderly, a minor, disabled, doesn't speak the same language etc) then it is assumed both parties knew they were signing a binding agreement, generally speaking. Magistrates do not throw out contracts just because a lawyer didn't type them up with a letterhead :S

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