Legal Question in Business Law in Kentucky

Re: Can I get a refund on this automobile?

I just covered this at great length with someone in Wisconsin who

had also asked a similar question on this forum.

I don't know your state's laws, and lemon laws (referring to cars that

don't work well) vary greatly from state to state. Sometimes they apply

only to dealerships, but maybe sometimes they apply to "induhviduals" as well so

you'd be best off getting an answer from a local lawyer.

However, I checked MY state's "U.C.C." (Uniform Commercial Code) law, which is

very very similar in most states and found there a few things of interest. The bad news

is that there is no "implied warranty of merchantability" when you haven't bought from a

dealership. The unknown news is that there MIGHT be an "implied warranty of fitness for a

particular purpose" (that it is a car so it should run like a car should); however, I'm not

sure if that warranty applies to private individuals. But the good news (probably) is that

statements made by the seller at the time of sale become part of the bargain under

section 2-313, I think, and imply a warranty that the product matches the

statements made about it. The law is crystal clear on that point. HOWEVER, one can get

around that by having the buyer sign a bill of sale which says otherwise or, for example,

is marked "as is." Was your paperwork marked "as is" (or "junk")? See section

2-316 for specifics on how well it would have to have been marked, etc., to have

effect and some other exceptions when it would have no effect.

It could come down to your word against the seller's and I would hope

and even expect that you would be believed, since it's a perfectly average normal

question.

Caveat (warning:): I don't know if your state has adopted U.C.C. laws, for sure, and even if it

has, you might not have the same version we have, and even if you do, I could still have misread it,

so please do check with a local (your state, anyway) attorney.

Here are my state's laws on the subject:

(MESSAGE CONTINUED !)

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Re: Can I get a refund on this automobile?

SECOND OF A TWO-PART MESSAGE:

Massachusetts Annotated Laws ch. 106, @ 2-313 (1999)

@ 2-313. Express Warranties by Affirmation, Promise, Description, Sample

(1) Express warranties by the seller are created as follows:

(a) any affirmation of fact or promise made by the seller to the buyer which

relates to the goods and becomes part of the basis of the bargain creates an

express warranty that the goods shall conform to the affirmation or promise.

(b) any description of the goods which is made part of the basis of the

bargain creates an express warranty that the goods shall conform to the

description.

(2) It is not necessary to the creation of an express warranty that the

seller use formal words such as "warrant" or "guarantee" or that he have a

specific intention to make a warranty, but an affirmation merely of the value of

the goods or a statement purporting to be merely the seller's opinion or

commendation of the goods does not create a warranty.

[ Stu says: The UCC comes with official comments written by the people who wrote UCC law and then generally included whenever the law is enacted almost as if they are the law! I extracted ones I felt most relevant for you: ]

3. The present section deals with affirmations of fact by the seller,

descriptions of the goods or exhibitions of samples, exactly as any other part

of a negotiation which ends in a contract is dealt with. No specific intention

to make a warranty is necessary if any of these factors is made part of the

basis of the bargain. In actual practice affirmations 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. Rather, any fact which is

to take such affirmations, once made, out of the agreement requires clear

affirmative proof. The issue normally is one of fact.

8. Concerning affirmations of value or a seller's opinion or commendation

under subsection (2), the basic question remains the same: What statements of

the seller have in the circumstances and in objective judgment become part of

the basis of the bargain? As indicated above, all of the statements of the

seller do so unless good reason is shown to the contrary. The provisions of

subsection (2) are included, however, since common experience discloses that

some statements or predictions cannot fairly be viewed as entering into the

bargain. Even as to false statements of value, however, the possibility is left

open that a remedy may be provided by the law relating to fraud or

misrepresentation.

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