Does 'As is' always mean 'as is'?

[Pablo3]

What is the name of your state? RI
Hi! I have a '99 Cadillac recently purchased from a private party. Yes, the bill of sale (not notorized if that is pertinent) does state 'as is'. I also have written (emails) testimonial regarding the car and it's condition. Included in the emails is the statement of the owner that he is a 'ceritified ASE auto technician' and that replacement of the motor and transmission work on the car has been performed by him, so therefore he knows it was 'done right'. He writes that he used the car as his personal car for three months, and 'it has perfomed flawlessly'. in addition, he states 'There are no problems with this car. Everything works 100%'. In fact he mentions that the car's original motor was overheated and the head gasket was blown. This is why he installed a replacement motor. That is also the problem I purchased the car with. He is certainly familiar with the symptoms. ( I am not a mechanic).
My verbal communications with him are certainly of no consequence; my question is with the written assurances (which by the way also include the car's VIN number in the body of the emails) of the condition of the car, do I perhaps have some recourse in say, small claims court, for a portion of the cost of repairing this vehicle?
Before you say 'well, you should have had YOUR mechanic inspect it,' yada yada yada, I do not have a personal mechanic, and in fact there are not many around here that would consider checking out a car for sale purposes, and these cars are moslty dealer repairs, and no dealer would ever perform this type of checkout.
Any thoughts?

[BL]

You don't say what defects the car had when you purchased it and how long after you were aware of the defects .
You don't say if you had a mechanic inspect or repair any defects , if you have estimates , or reciepts of repairs .
The bottom line , " IF " you can prove to the Court the condition of the vehicle was " Misrepresented " , and at the time of purchase , you didn't receive what was represented , you might be able to be compensated , under the " Misrepresentation " therory .

In other words you didn't receive what was advertized , or was represented as .

Don't go in there under the assumption , there isn't any mechanics willing to check out a car for sale , or I don't have a personal mechanic , it won't fly .

[justalayman]

Dealerships will inspect a car for you if you pay them, just as you should expect when asking any mechanic to inspect a car for you.

In addition to BL's post, you may be able to claim that the seller represented himself to be a trained professional and you, as a layman, relied upon his claims and representation of the vehicle to be in the condition as claimed.

It, of course, will be up to the judge in the end but the judge may give you the benefit of the doubt here.

For future deals, hire an independant mechanic to do your inspection. This removes the vested interest and concern of conflict of interest involved with taking the sellers word.

[Pablo3]

Well, my point was that as an ASE certified auto technician (which the seller pointed out he is when writing to me), the seller 'certified' the auto as 100% (his words), which in fact turned out not to be true, virtually imediately.
I agree, an independant mechanic is the way to go, but unfortunatley, after approaching several, including the local cadillac dealer, no one would perform this due to what they percieved as liability if they missed something. (They were happy to work on it if I bought it of course)
But that is not my point, and you have both spoken to what I was getting at, and what I have in writing from the seller, as a 'Certified ASE mechanic' who puported the vehicle to be in good repair, I believe I had a reasonable expectation that there were no pre-existing defects. I have attempted to reconcile the problems with the seller to no avail, and am considering a small-claims action.
The cost of repairing the motor is in excess of $2500. I agree that there is some responsibility on my part (the inspection thing) but do feel that the seller misrepresented the car using his professional certification. I would ask for 1/2 of the cost of repairs.
Thank you for your considered input.

[justalayman]

Originally Posted by Pablo3

. I would ask for 1/2 of the cost of repairs.
Thank you for your considered input.

I would ask for the entire amount. That way you can be happy with 1/2 if you get it but ecstatic with 100% if you get that. Do not reduce your possible judgement yourself. If the judge feels you are entitled to only half, that is what will be awarded.

[Pablo3]

yes sir, I do agree completely with your point. However, RI small claims is limited to $1500 total. I would be looking for about that amount.
Thanks

[teflon_jones]

Originally Posted by Pablo3

Yes, the bill of sale (not notorized if that is pertinent) does state 'as is'. I also have written (emails) testimonial regarding the car and it's condition.

What exactly does the bill of sale state? You mention a lot of things in your original post, but it's not at all clear to me which of those appear on the bill of sale and how they're worded. It would be a good idea for you to retype the entire bill of sale here.

Originally Posted by Pablo3

Before you say 'well, you should have had YOUR mechanic inspect it,' yada yada yada, I do not have a personal mechanic, and in fact there are not many around here that would consider checking out a car for sale purposes, and these cars are moslty dealer repairs, and no dealer would ever perform this type of checkout.

You don't need a personal mechanic. You could have taken it to any Cadillac dealer. I don't know why you're under the impression that "no dealer would ever perform this type of checout." Not only will they do it, but every single car dealer has a program for checking out used cars prior to purchase and there's a set fee for it.

Please post the entire bill of sale here.

[justalayman]

Originally Posted by Pablo3

yes sir, I do agree completely with your point. However, RI small claims is limited to $1500 total. I would be looking for about that amount.
Thanks

That bites. $1500 isn't much today, but you next step would probably cost you more than what you are out if you lose.

I would shoot for every penny of that $1500 then.



Teflon, re-read the original post. The bill of sale states "as-is" but the e-mail communications in pre-sale inducements extole the supreme condition of the vehicle and the highly educated and skill level of the seller.

[teflon_jones]

Originally Posted by justalayman

Teflon, re-read the original post. The bill of sale states "as-is" but the e-mail communications in pre-sale inducements extole the supreme condition of the vehicle and the highly educated and skill level of the seller.

I read the original post just fine. The OP doesn't make it clear to me exactly what is in the bill of sale. He states multiple times that he has things in writing, but if they're in email, then they're not really in writing. Emails can be altered, so all that matters is what's on the bill of sale.

[BL]

Originally Posted by teflon_jones

I read the original post just fine. The OP doesn't make it clear to me exactly what is in the bill of sale. He states multiple times that he has things in writing, but if they're in email, then they're not really in writing. Emails can be altered, so all that matters is what's on the bill of sale.

Even IF the bill of sale states AS-IS , may not preclude the reasons for the suit on the bases of misrepresentation .

The buyer could State he though as-is meant the way it was advertized .

If the buyer can prove to the court that the vehicles was misrepresented , and as Layman pointed out , the seller wasn't ASE Certified as he claimed , the Buyer might have a shot .

I almost won a case on just such a therory , I had the advertizement , Etc ., all repair invoices the guy gave me , and the bill of sale w/ as-is , but a slip of my toung ( because I was nervous ) , I lost . The Judge was leaning my way though before that .

[justalayman]

Originally Posted by teflon_jones

I read the original post just fine. The OP doesn't make it clear to me exactly what is in the bill of sale. He states multiple times that he has things in writing, but if they're in email, then they're not really in writing. Emails can be altered, so all that matters is what's on the bill of sale.

Teflon; read the post, it says the bill of sale states as-is.
the inducements are in the e-mails.

and now you are saying e-mails have no value, especially in SCC?

ok, if you say so.

[teflon_jones]

Originally Posted by justalayman

Teflon; read the post, it says the bill of sale states as-is.
the inducements are in the e-mails.

and now you are saying e-mails have no value, especially in SCC?

ok, if you say so.

Can you tell me exactly what the bill of sale says word for word? Please type it out here so I can see it. In order to accurately answer this person's questions, you need to know exactly what it says, not just that it says "as is" somewhere. The rest of the content is equally as important.

Emails only have value if you can prove that they haven't been altered in any way. In order to do this, you'd have to go to the email provider and get copies of the emails from their mail servers. In cases such as Enron where emails are used as evidence, this is what's done. I can fake an email to say whatever I want. Any smart defendant and/or judge will know this and the emails will be worthless.

Ultimately the bill of sale trumps any emails anyway because it's the final document in the transaction.

[john123456]

Originally Posted by justalayman

Teflon; read the post, it says the bill of sale states as-is.
the inducements are in the e-mails.

and now you are saying e-mails have no value, especially in SCC?

ok, if you say so.

Google "parol evidence rule"

[justalayman]

Originally Posted by john123456

Google "parol evidence rule"

[URL="http://www.thefreedictionary.com/fraud%20in%20the%20inducement"]how about this??[/URL]


I understand what you are saying (I think) but the contract does not state something "contrary" to what was stated in the e-mails. Now if in the e-mails the seller stated there is a warranty and then on the bill of sale it stated it is "as-is" I could see where the "parol evidence rule" was germane. Since there is nothing contradictory to the contract, the statements are simply inducements and were fraudulent in their content.

[url]http://www.lawspirit.com/legalenglish/handbook/contracts06.htm[/url]


IV. SITUATIONS WHERE PAROL EVIDENCE RULE DOES NOT APPLY

A. Fraud, mistake or other voidability: Even if a writing is a total integration, a party may always introduce evidence of earlier oral agreements to show illegality, fraud, duress, mistake, lack of consideration, or any other fact that would make the contract void or voidable. In other words, the parol evidence rule never prevents the introduction of evidence that would show that no valid contract exists or that the contract is voidable. [198]

Example: In order to induce Buyer to buy a rental property, Seller lies about the profitability of the property. The parties then sign a sale contract that contains a standard "merger" clause, reciting that the contract constitutes the sole agreement between the parties. The parol evidence rule will not prevent Buyer from showing that Seller made fraudulent misrepresentations to induce him to enter into the contract.

1. Particular disclaimer: But if the contract contains a very specific statement that no representations of a particular sort have been made, some courts prevent a party from showing that the disclaimer is false.

Example: On the facts of the above example, suppose that the contract stated, "Seller has made no representations or warranties regarding the profitability of the property, and Buyer has relied solely on his own investigation as to profitability." Some courts – though probably a minority – would prohibit Buyer from showing that Seller in fact made fraudulent misrepresentations about profitability.

Teflon_jones: we are talking small claims here. Many judges are much more lax on evidence. As well, the OP would be able to have the defendant accept or deny the e-mails and if they lie, they are open to perjury charges.

Now anything can be faked, but there are clues in an e-mail that are difficult to fake without the proper knowledge.

What else does the OP have to lose? It is worth a shot and if properly prepared and researched, I think it would be a good shot.

[john123456]

"the statements are simply inducements and were fraudulent in their content"

We will see. Poster please post back with the outcome.