From: Jack (milveh@sbcglobal.net)
Date: Mon Nov 15 2004 - 09:38:43 PST
It was small claims court and the plaintiff stated his
case:
Your honor, I was promised a military vehicle in good
running order. This was a deal over the Internet. It
was to be without any obvious mechanical defects. I
trusted the seller and paid him as we agreed.
On rebuttal, the defendant stipulated to this paid as
agree part and even admitted the vehicle probably
wasn't in the condition as he stated based on the
evidence presented ... photo's showing the engine was
rusted to the point it would not turn over.
The defense: The defendant did not feel compelled to
refund the plaintiffs money because (1) Seller said
things happen while MV's are in long storage and he
was ONLY representing this MV to the best of his
knowledge, as it once was and therefore any
misrepresentation to the current condition was not his
fault and not intentional. (2) The plaintiff had a bad
attitude, he was rude and argumentative and because of
this Defendants own actions forced seller to become
uncooperative and broke-down any further dialog
between them. (3) Buyer should realize that when
buying old, used vehicles things can be wrong that the
seller may not be aware of and take the loss.
I see, said the judge. So, (addressing the defendant)
in your verbal contract you had a clause that said, in
the event buyer discovers he has purchased merchandise
that is NOT as represented and becomes angry in his
demand for recovery, seller is not liable, is that in
your contract sir?
The defendant, somewhat taken back by this rather
hostile questioning from the judge said, Uh, well no
your honor its not, but I just couldn't deal with this
twit because of his attitude. I would probably have
done something otherwise.
(Judge) Then, I your defense is without merit, a
buyer’s attitude have nothing to do with it! The
condition of the product sold has everything to do
with it and your product was not as represented.
Judgment in full for the plaintiff.
Rule #1: Selling an item with specific representations
or warrantees obligates the seller to a sort of
"performance" contract.
That means that a "specified obligation" such as "the
truck runs good or the gears don't grind" must be
fulfilled or there no completion of the contract. No
wiggle room here!
Unilaterally adding "specific conditions of
performance" after the fact of an agreed-to contract,
even though it might seem fair and reasonable, does
not alter the original bilateral agreed-to contract.
In this case, Seller admitted he was going to sell an
MV in "good operating condition" in exchange for "X
amount" of dollars. Anything beyond that is not
relevant to the court. Conversely seller is not
obligated to a higher standard than that specified in
the contract.
Exception: If a seller represents a MV to be in good
order, but sold "as is", this means the burden of
obligation to assure it is in good order falls on the
buyer. Without that "as is" caveat, the seller has
made a specific warranty and must fulfill it or be
liable.
FYI: California has a civil code that makes it
possible to obtain a refund of almost any item within
72 hours under certain conditions, unless those
conditions have been specifically waved by the buyer.
Many times I find that conflicts between buyers and
sellers could have been avoided if their mutual
understanding of what performance is be contracted was
reduced to writing. Lesson here is if it’s a large
purchase, put it all in writing so everybody has the
same understanding!
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