This will be the first in a series touching on the widespread misuse by dealers of bogus AS IS disclaimers to get away with fraud.
Dirty dealers, especially dirty franchise dealers, more and more often try to escape liability for selling damaged and defective vehicles, and for misrepresenting such vehicles, by slipping into the paperwork something they claim to be an AS IS disclaimer. It’s one of the surest signs of dirty dealer that I have come across.
What makes matters worse is that AS IS disclaimers are often misunderstood – not only by consumers, but by uninformed Judges and juries as well.
It is very unfortunate but all too often true that Judges and Juries misinterpret or equate AS IS to mean “buyer beware.” Most of you have probably heard the latin expression “caveat emptor.” It is an ancient expression, which, rightly, has lost application. The law long ago developed to stop unscrupulous sellers to escape liability so easily.
In the first part of the blog on this subject, we addressed the strict conditions under which an AS IS provision may even be valid. For an AS IS provision to be valid and effective, several things must be true, including:
1) It must be disclosed on a sticker on the vehicle in 20-point bold type;
2) It must be disclosed in specific language dictated under the law;
3) It must appear on the face of the contract;
4) It must NOT contradict any advertisement
5) It must NOT contradict any written or oral description or promise.
Even where valid, an AS IS provision only has a very narrow application. It is not a license to lie. It only – ONLY!! – eliminates two very narrow and very limited types of claims. It only eliminates what are called implied warranties.
More specifically, it only eliminates claims that the seller breached the Implied Warranty of Fitness for a Particular Purpose and/or the Implied Warranty of Merchantability.
It is not necessary to go into too great of detail regarding the nature of these two types of claims. It is only necessary that you understand that dealer must still accurately and honestly represent the vehicle, accurately and honestly answer any customer questions, and must still provide any legally required disclosures (whether or not asked about) such as frame/structural damage, flood damage, transmission requiring replacement, and/or prior rental or commercial use.
If you think you have been the victim of dealer fraud, or a fraudulent AS IS disclaimer, then you should contact a qualified attorney right away.
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