Service contact unauthorized

[tranquility]

That is what I was (Socratically) getting at - it is an issue of proof. I have never seen a contract, new or used, which specifies where the dents are or how many paint defects exist or which radio preset buttons stick. Assuming the tires and engine is still there when our OP goes to get the car, how then, does our pissed off buyer reject the car for an alleged non-perfect tender?

Or, conversely, how does the dealership prove the rejection was not in good faith?

then the car wouldn't be as is, as in the same condition as when the buyer inspected the vehicle, right? You are describing exactly what zigner was speaking of.

Compare and contrast.

If the contract states "as is" then "as is" includes the dent in the door, the crack in the windshield or any other issue that was present when the buyer inspected and accepted the vehicle.

As is says nothing about how the vehicle purchased was. The first sentence is more along the lines of the perfect tender rule, while the latter is not. The only issue will be if the vehicle substantially complies or if there is a variation amounting to a trivial defect; depending on how Virginia courts interpret the rule.

the duty to inspect is on the buyer.

The duty to tender is on the seller. An entire contact can be written, signed, sealed or whatever and, when tender is made (property delivered), THEN buyer has some duties regarding inspection. In our facts the buyer has not taken delivery of the vehicle yet.

 

[justalayman]

The duty to tender is on the seller. An entire contact can be written, signed, sealed or whatever and, when tender is made (property delivered), THEN buyer has some duties regarding inspection. In our facts the buyer has not taken delivery of the vehicle yet.

what? The duty to inspect is on the buyer PRIOR to signing a contract. Once they sign the as is contract, they have acknowledged acceptance of the vehicle in the existing condition. If the buyer wants to claim, upon some delayed pick up, that there is additional damage, the duty is then on the buyer to prove it was not existing prior. Remember, in court, the plaintiff has the duty of proof, not the defendant so:


buyer says: but the dent wasn't there before

seller: yes it was


judge, to buyer: prove it

unless the buyer can show it was recent damage or there are witnesses or there is some convincing testimony the judge accepts as adequate, they will lose.

 

[Mass_Shyster]

Remember, in court, the plaintiff has the duty of proof, not the defendant so:

And in this case, the seller is the plaintiff.

Buyer still has a pocket full of money, and seller still has the car. If someone is to sue, it will be the seller suing buyer.

 

[justalayman]

And in this case, the seller is the plaintiff.

Buyer still has a pocket full of money, and seller still has the car. If someone is to sue, it will be the seller suing buyer.

it all depends on the action but let's go with your situation:


seller sues OP for the purchase money. Seller goes to court and proves case by showing contract. Case closed.



Oh, so now you will want to toss in the defendant arguing there was an imperfect delivery.

Defendant: there was new damage

plaintiff: no there wasn't


judge to defendant: prove it


Ya see, all the plaintiff/seller has to prove here is there was a valid contract. If the other party wants to dispute it, then they have to prove their claim.

 

[tranquility]

what? The duty to inspect is on the buyer PRIOR to signing a contract.

Nope. Not in the way you mean. If you think about it, you already know why such a claim is silly. Go ahead and read through the UCC on rejection and such and see what the law envisions.

For the court issue, you've got it backwards. OP goes in and rejects car as tendered. Dealership will have to sue for breach. OP says damaged. Dealership says not. OP wins because a "dealership" has no personal knowledge of it NOT being damaged and it would not get in. We have to get some chain of custody for the time and then some testimony from someone(s) with direct knowledge. Think in terms of admissible evidence. Who will have a harder time and more of a hassle "proving" their position? Does that mean it is not possible? Of course not. But, it is not going to be the night watchman saying he didn't see anyone damage the car.

 

[justalayman]

Nope. Not in the way you mean. If you think about it, you already know why such a claim is silly. Go ahead and read through the UCC on rejection and such and see what the law envisions.

For the court issue, you've got it backwards. OP goes in and rejects car as tendered. Dealership will have to sue for breach. OP says damaged. Dealership says not. OP wins because a "dealership" has no personal knowledge of it NOT being damaged and it would not get in. We have to get some chain of custody for the time and then some testimony from someone(s) with direct knowledge. Think in terms of admissible evidence. Who will have a harder time and more of a hassle "proving" their position? Does that mean it is not possible? Of course not. But, it is not going to be the night watchman saying he didn't see anyone damage the car.

sorry T but no, I don't have it backwards. The plaintiff (seller) is suing for the money so all they have to prove is they have a valid claim for it. The contract is evidence of that. If the buyer wants to put forth a defense, then they must prove their defense. Arguing anything else would be the downfall of our courts. I can see it now:


plaintiff; defendant owes me money as proven by this contract

defendant: nope, they said I didn't have to pay it if I didn't want to


judge: well, I guess you can't prove the defendant owes you the money. You lose.

Dealership will have to sue for breach.

Yep. Here is the contract. We had the car there. Buyer refused to pay the money they agreed to in the contract. Judge to defendant: did you give them the money? Defendant: nope.

breach proven


The perfect tender is an argument to rescind the contract so in that, the defendant becomes the defacto plaintiff. In their defense they are effectively suing to rescind the contract and as such, must prove their claim.

OP wins because a "dealership" has no personal knowledge of it NOT being damaged and it would not get in.

What? Absolute horse****. You cannot prove a negative. He can testify that there is no additional damage than when the buyer accepted the contract though.

We have to get some chain of custody for the time and then some testimony from someone(s) with direct knowledge. Think in terms of admissible evidence

BSBSBSBSBSBSBS. dealer can testify it is in the same condition as when the contract was struck. Buyer has to prove otherwise because they are making the claim it is altered.

 

[Zigner]

Again, if the OP financed the vehicle, then the OP is going to have payments due whether or not he takes delivery. We should keep that in mind.
Also, depending on the language of the contract, it's possible that the OP has taken delivery of the vehicle already and has simply left the vehicle to be repaired/detailed/whatever.

 

[justalayman]

Again, if the OP financed the vehicle, then the OP is going to have payments due whether or not he takes delivery. We should keep that in mind.

very good point. If true, buyer is in a really bad position.

 

[tranquility]

The perfect tender is an argument to rescind the contract so in that, the defendant becomes the defacto plaintiff. In their defense they are effectively suing to rescind the contract and as such, must prove their claim.

Who said anything about recission? IF the dealership concluded the rejection is wrong, they:

� 2-703. Seller's Remedies in General.

Where the buyer wrongfully rejects or revokes acceptance of goods or fails to make a payment due on or before delivery or repudiates with respect to a part or the whole, then with respect to any goods directly affected and, if the breach is of the whole contract (Section 2-612), then also with respect to the whole undelivered balance, the aggrieved seller may

(a) withhold delivery of such goods;
(b) stop delivery by any bailee as hereafter provided (Section 2-705);
(c) proceed under the next section respecting goods still unidentified to the contract;
(d) resell and recover damages as hereafter provided (Section 2-706);
(e) recover damages for non-acceptance (Section 2-708) or in a proper case the price (Section 2-709);
(f) cancel.

It is clear in the UCC the duties of each party in this type of situation. Of course, the seller has a chance to cure.

Now, as to:

Also, depending on the language of the contract, it's possible that the OP has taken delivery of the vehicle already and has simply left the vehicle to be repaired/detailed/whatever.

I'd have to disagree. While there is a possibility there has been tender and/or inspection, acceptance has not happened. (At least irrevocably.) Emphasis mine:

� 2-602. Manner and Effect of Rightful Rejection.

(1) Rejection of goods must be within a reasonable time after their delivery or tender. It is ineffective unless the buyer seasonably notifies the seller.

(2) Subject to the provisions of the two following sections on rejected goods (Sections 2-603 and 2-604),

(a) after rejection any exercise of ownership by the buyer with respect to any commercial unit is wrongful as against the seller; and

(b) if the buyer has before rejection taken physical possession of goods in which he does not have a security interest under the provisions of this Article (subsection (3) of Section 2-711), he is under a duty after rejection to hold them with reasonable care at the seller's disposition for a time sufficient to permit the seller to remove them; but

(c) the buyer has no further obligations with regard to goods rightfully rejected.

(3) The seller's rights with respect to goods wrongfully rejected are governed by the provisions of this Article on seller's remedies in general (Section 2-703).

EVEN IF the buyer accepted physical possession, he can still reject in a reasonable time. I'd say the next day before taking physical possession would be within a "reasonable" time. Heck, it can go even further. What is acceptance?

� 2-606. What Constitutes Acceptance of Goods.

(1) Acceptance of goods occurs when the buyer

(a) after a reasonable opportunity to inspect the goods signifies to the seller that the goods are conforming or that he will take or retain them in spite of their non-conformity; or

(b) fails to make an effective rejection (subsection (1) of Section 2-602), but such acceptance does not occur until the buyer has had a reasonable opportunity to inspect them; or

(c) does any act inconsistent with the seller's ownership; but if such act is wrongful as against the seller it is an acceptance only if ratified by him.

(2) Acceptance of a part of any commercial unit is acceptance of that entire unit.

Note the change in duty when the buyer accepts:

� 2-607. Effect of Acceptance; Notice of Breach; Burden of Establishing Breach After Acceptance; Notice of Claim or Litigation to Person Answerable Over.
.
.
.
(4) The burden is on the buyer to establish any breach with respect to the goods accepted.

What are the rules AFTER acceptance?

� 2-608. Revocation of Acceptance in Whole or in Part.

(1) The buyer may revoke his acceptance of a lot or commercial unit whose non-conformity substantially impairs its value to him if he has accepted it

(a) on the reasonable assumption that its non-conformity would be cured and it has not been seasonably cured; or

(b) without discovery of such non-conformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller's assurances.

(2) Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it.

(3) A buyer who so revokes has the same rights and duties with regard to the goods involved as if he had rejected them.

(4) If a buyer uses the goods after a rightful rejection or justifiable revocation of acceptance, the following rules apply:

(a) Any use by the buyer that is unreasonable under the circumstances is wrongful as against the seller and is an acceptance only if ratified by the seller.

(b) Any use of the goods that is reasonable under the circumstances is not wrongful as against the seller and is not an acceptance, but in an appropriate case the buyer is obligated to the seller for the value of the use to the buyer.

 

[justalayman]

Who said anything about recission? IF the dealership concluded the rejection is wrong, they:

� 2-703. Seller's Remedies in General.

Where the buyer wrongfully rejects or revokes acceptance of goods or fails to make a payment due on or before delivery or repudiates with respect to a part or the whole, then with respect to any goods directly affected and, if the breach is of the whole contract (Section 2-612), then also with respect to the whole undelivered balance, the aggrieved seller may

(a) withhold delivery of such goods;
(b) stop delivery by any bailee as hereafter provided (Section 2-705);
(c) proceed under the next section respecting goods still unidentified to the contract;
(d) resell and recover damages as hereafter provided (Section 2-706);
(e) recover damages for non-acceptance (Section 2-708) or in a proper case the price (Section 2-709);
(f) cancel.

why are you speaking of remedies available to the seller when you asked about an action I spoke of as a buyers remedy.

the BUYER would be suing to rescind, not the seller.

It is clear in the UCC the duties of each party in this type of situation. Of course, the seller has a chance to cure.

Yep, they can sue for payment due. Thanks for providing the statute that defeats your own argument and supports mine.

 

[tranquility]

why are you speaking of remedies available to the seller when you asked about an action I spoke of as a buyers remedy.

the BUYER would be suing to rescind, not the seller.

As Stevef said, the buyer has his money in his pocket.

Yep, they can sue for payment due. Thanks for providing the statute that defeats your own argument and supports mine.

You'll have to point out where the law is supporting you. I have no idea what you are talking about. Certainly they can sue to say the rejection was in bad faith. (The suit Stevef and I accept.) But, didn't you say we were wrong in who was suing who?

 

[Laidback4life]

The buyer guide says that a service contract is not available with the vehicle. Sorry if I didn't clarify that it is a used vehicle. Anyways, the dealership amended the contract today without a hitch thankfully. Thank you all for your quick responses. I'm glad this wasn't an $1800 lesson.

 

[You Are Guilty]

The buyer guide says that a service contract is not available with the vehicle. Sorry if I didn't clarify that it is a used vehicle. Anyways, the dealership amended the contract today without a hitch thankfully. Thank you all for your quick responses. I'm glad this wasn't an $1800 lesson.

Aw shucks, we were just getting into the swing of things here and you had to go out and ruin our discussion with all your common sense and whatnot. Congrats! (You see what could have happened if the dealer did not cooperate).

 

[tranquility]

Congratulations! While we were debating the legal issues, I don't think my side felt you would find the issue we were to be discussing to be a winner, just a hassle to the dealer.

I am happy the dirty trick by the dealer couldn't happen by the warranty insurance rules rather than having to fight for what's right even though it seems all legal like.

For a good law review on the issue, see:
http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1814&context=wmlr&sei-redir=1&referer=http%3A%2F%2Fwww.google.com%2Furl%3Fsa%3Dt%26rct%3Dj%26q%3Dvirginia%2520%2522perfect%2520tender%2520rule%2522%2520financed%2520purchase%2520rejected%26source%3Dweb%26cd%3D3%26ved%3D0CFcQFjAC%26url%3Dhttp%253A%252F%252Fscholarship.law.wm.edu%252Fcgi%252Fviewcontent.cgi%253Farticle%253D1814%2526context%253Dwmlr%26ei%3DWZPfT4OHJYTg2QWxr8DOCA%26usg%3DAFQjCNHdDvIvzBRqjuQHnbM9zbeMIRAjVg%26cad%3Drja#search=%22virginia%20perfect%20tender%20rule%20financed%20purchase%20rejected%22