<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by Gerard:
On 5/27, we paid a $500 deposit for a new car. 2 days later, we learned that the Balance due included taxes on a manufacturers rebate the salesman never mentioned. Told him he misrepresented facts and we no longer wanted the car. He later offered to waive the tax, but we said we did not trust him and requested a refund of the deposit. Spoke to sales manager and repeated request for refund. He refused and said that under Para. 3 of the agreement we signed if we refuse to buy we are liable for 15% of the Total Unit Price of the Vehicle (about $2100) as liquidating damages. We referred him to Para. 7 of the same document. This "Preference Statement" says: "This is not a contact for the sale of the vehicle. It is solely a statement of the preference of the prospective buyer and an indication of the price, equipment, etc. It is not binding upon either the prospective buyer or the dealer. The money left with the dealer may be returned at any time on the request of the prospective buyer. This paragraph supercedes any other provisions of this document which may be contrary hereto." When I read this statement to him, the sales manager said "if that's how you feel, I'll see you in court." Why would the dealer have this clause in his document, if he wasn't willing to live up to it? I filed a claim with the better business bureau. What else can I do short of going to court? Do I have a case for small claims court? Can he possibly hold me liable for liquidating damages? <HR></BLOCKQUOTE>
My response:
You asked:
1.What else can I do short of going to court?
<<If someone chooses to breach a contract with you, in the face of a clause that he would have held your hand in the fire about, I don't see any other viable recourse other than court. The man told you "No refund" and "I'll see you in court." What more do you need? The BBB is "BBS." They can't do anything for you and, I often wonder why there is a BBB. What a waste.>>
Do I have a case for small claims court?
<<On it's face, yes. While I don't know the jurisdictional limit in your neck of the swamp, it's a sure bet that it's well over $500.00. On top of that, when he loses, you'll get a judgment that includes your costs an fees. Check out the contract and see if there's a clause concerning attorney's fees and costs of collection.>>
Can he possibly hold me liable for liquidating damages?
<<Simple answer. No. You never took delivery of the car, and the clause you quoted "supercedes all others" and requires reimbursement or refund.>>
Oh, and make sure that you write a letter, sent Certified, Return Receipt, to the man at the dealership, quoting the contract language, and demanding your money back within 10 days from the date of your letter.
When he fails to refund your money, not only sue for your refund, but also for "contractual bad faith." Could be worth some punitive damages, if you plead it correctly, and he fails to come up with a "viable, believable defense" to the breach of contract.
"Bad faith" signifies a breach of the covenant of good faith and fair dealing that is implied by law in every contract. Breach of this implied covenant involves something beyond breach of the specific contractual duties. It implies unfair dealing rather than just mistaken judgment. [Congleton v. National Union Fire Ins. Co. (1987) 189 Cal.App.3d 51, 59, 234 Cal.Rptr. 218, 222]
Go get 'em !!
IAAL
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[This message has been edited by I AM ALWAYS LIABLE (edited June 08, 2000).]
