Does "Sold As Is" Trump an Express Warranty?

[izthewiz]

What is the name of your state?What is the name of your state? New York

In response to an advertisment in an internet classified ad for a used car, the seller advertise the car as: "mechanically mint"; "excellent mint"; "needs absolutly nothing"; and "has no leaks", I bought the car. I gave the car a bried inspection and asked the ower if everything in the ad he stated was true. The owner said yes. I bought the car.

The owner wrote "sold as is" and the "buyer test drove the car to his satification"on the bill of sale. I understood "sold as is" being sold as is in the condition in which the car was made and represented in the online ad.

The owner's repesentation made in the ad turned out to be fradulent and false, as the car needs a new engine, a windshield wiper motor, brakes, alternator, myster cylinder and a safety on the ger box. I only drove the car for a few days for a distance no more than 75 miles. The car is now in storage.

I filed a breach of warranty, breach of contarct and breach of agreement action in the small claims court in the City of New York for damages to repair the car to the condition in which was represented in the ad and in person. Does "sold as is" trump the expressed warranty made in the classified ad??
Do I have a case?

I welcome any and all feedback, advise and comments. Thanks

 

[bulldogg70]

The question is did you rely on the words of the person, and it appears no. You test drove the vehicle and you inspected it, one would reasonable believe when you inspected the car you would have noticed if it was in “mint” condition or not, among other things. Further, an express warranty is usually associated into the performance of the item you bought and finally a contract in writing would exceed what you both said in person unless you both agreed to what was said in person. So, now you are going to have to ask what lemon laws and protections do you have, how long ago did you buy the car, and how long did it take you to notify the person because of the pending issues. The guy used puffery to close the deal, looks like you have a hard one here buddy.

 

[tabathadolley]

I gave the car a bried inspection and asked the ower if everything in the ad he stated was true. The owner said yes. I bought the car.

Why didn't you bring it to a mechanic to verify what the seller claimed?

I never understand how someone can spend so much money on a vehicle, and just take the sellers word for the condition of the car.

 

[izthewiz]

Thanks Bull Dog

The question is did you rely on the words of the person, and it appears no. You test drove the vehicle and you inspected it, one would reasonable believe when you inspected the car you would have noticed if it was in “mint” condition or not, among other things. Further, an express warranty is usually associated into the performance of the item you bought and finally a contract in writing would exceed what you both said in person unless you both agreed to what was said in person. So, now you are going to have to ask what lemon laws and protections do you have, how long ago did you buy the car, and how long did it take you to notify the person because of the pending issues. The guy used puffery to close the deal, looks like you have a hard one here buddy.

Thanks for your response. In respone to your questions, I bought the car on 12/27/04, got it inspected on 12/30/04. I notifed the owner of the first problem on 12/29/04. The car was driven less than 75 miles.

The guy didn't used pufferey to closed the deal, he used the same words that he placed in his ad "mechically mint", etc. It my understanding that had he said this is the "Greatest Car in the World" then that would be consider puffery. Once again thanks for your insight, Yes this is going to be a good tough fight.

 

[HLSLLM]

UCC Codes that may provide some answers

New York State. NY has adopted the UCC.

1.) Statutorily, an "as is" clause does not preclude recovery under an action for breach of express warranty. Only implied warranties are exluded where an "as is" clause is conspicuously stated in a contract or orally stated by the seller. See UCC Section 2-316(3)(a).

2.) Under Section 2-313 of the UCC, an express warranty is created by a seller when an affirmation of fact or promise is made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain (i.e. the buyer reasonably relies on the affirmation of fact or promise). Thus, your case, predicated on the facts you have given, will depend on these two factors: (1) Will the Court view the statements made by the seller as affirmations of fact and promises, or rather as an opinion (i.e. "puffery")? (2) Would a reasonably prudent person in the position of the buyer (YOU) have relied on these affirmations of fact / promises? For the latter element you may want to use Comment 3 to UCC 2-313 stating: "[A]ffirmations of fact made by the seller about the goods during a bargain are regarded as part of the description of those goods; hence no particular reliance on such statements need be shown in order to weave them into the fabric of the agreement."

3.) Also you may want to look at the contract to ascertain whether there is a merger clause which states that the contract is the final expression of [the two parties`] agreement with respect to the included terms and which also includes language that says that the seller makes no representations or warranties express or implied... If there is language like this, you will be precluded from introducing evidence in regards to the seller` s apparent express warranty.

4.) Last but not least, you may also amend your causes of action to include:

A. Common law fraud
B. Breach of the duty of good faith and fair dealing (See UCC Section 1-203)

5.) Finally, next time you purchase a car, if within reasonable time you rightfully revoke your acceptance, you do not need to rely on breach of warrant or any other claims. You can just simply recover the price paid if the seller fails to cure the defects. For more see Sections 2-608, 2-508 and 2-711 of the Uniform Commercial Code.

Good luck.