The following question was submitted to John Roska, an attorney/writer whose weekly newspaper column, "The Law Q&A," runs in the Champaign News Gazette.
I bought a car advertised as one owner, in excellent condition. Within 50 miles, the check engine light came on, which I had to pay to get cleared. The mechanic said the car was worth less than half what I paid for it. I’ve also had to pay for other repairs, like for turn signals that burned out, and remote door keys that didn’t work. Do I have any legal recourse?
Probably not. And certainly not just because you may have overpaid. Without some kind of fraud, making a bad deal isn’t illegal.
If it was a sale between individuals, your rights are really limited, because there’d be no implied warranty of merchantability. This warranty protects buyers, by assuring that what you’re buying is "fit for the ordinary purposes for which such goods are used.” That basically means what you’re buying actually works, and isn’t defective.
But, that warranty is only implied in sales by a merchant. That’s defined as someone “who deals in goods of the kind,” or “by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved.”
Which means that if you didn’t buy the car from a dealer, you didn’t get that implied warranty of merchantability. The car can be complete junk, and you’re out of luck.
Unfortunately, you could be out of luck even if you did buy from a dealer. All a merchant has to do to disclaim the implied warranty of merchantability is check the box that says as is on the Buyer’s Guide.* That’s the sheet of paper dealers must post in the window of all used cars, and why used car buyers really need to beware.
So, the car was definitely as is if you bought it from an individual, and probably was if you bought it from a dealer. Your only chance is if there was some kind of an express.
Dealers sometimes give written warranties, or service agreements, even when the Buyer’s Guide says as is. Then, federal warranty law says you still get the implied warranty of merchantability, along with the written warranties or agreements.
Both individual sellers and dealers can also make express warranties about a vehicle. For example, one Illinois case says calling the vehicle undamaged creates an express warranty. Maybe calling your vehicle "one owner” also created an express warranty, which the seller breached if that’s not true.
Express warranties don’t have to be in writing. Proving there was an enforceable, oral express warranty, however, won’t be easy.
Legally, a breach of an express warranty is a contract claim. It can also amount to fraud, which legally is a tort. The damages can be different for a breach of contract, and a tort.
Damages are essential. It’s not enough to just prove a breach of warranty, or fraud. You’ll have to prove those caused some kind of actual, significant damages. That could be a variety of things, like big repair bills, the cost of alternative transportation, or even inconvenience.
*Editor's note: The law has changed slightly in this area. Effective July 1st, 2017, the seller breaches an implied warranty if there is a defect in the power train of the car, even if they select the "as is" box. The power train includes the following parts:
- engine block
- internal engine parts
- oil pan and gaskets
- water pump
- intake manifold
- transmission and all internal transmission parts
- torque converter
- drive shaft
- universal joint
- rear axle and all rear axle internal parts
- rear wheel bearings
You must notify the seller within 2 days that there is a problem with one of these parts. They then have to fix it, but you have to pay for half of the cost, up to $100.