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Remedies for Breach of Warranty
Q. What are my options if the seller will not honor its warranties?
A. If you have not already accepted the car, reject it. You may
reject only within a
reasonable time after delivery of the car. What constitutes a "reasonable
time" is a
question of fact to be decided by the court, if it goes that far. You
must give the seller
specific information about what is wrong. You need only show the car's
nonconformance
in any way to the contract; the defect need not be major. You have the
option of allowing
the dealer to attempt to remedy ("cure") the defects within
a reasonable time. Once you
reject the car, behave as if you are no longer the owner o not drive it,
except to return it.
You may hold the car for the seller to reclaim, or you may return it yourself.
These steps should enable you to reject the car. However, to take the
next step and
force the seller to live up to its warranties, you may need to consult
a lawyer.
Q. How do I know if I have already accepted?
A. Unfortunately, sometimes the law considers just driving the
car off the dealer's lot as
acceptance, as long as you had a chance to inspect the car, even if you
do not discover the
defect for some time. At most, you have a week or two to reject the car.
Acceptance may
also occur if you take possession of the car despite knowing about its
defects.
Q. What may I do if I have accepted a car that proves to be defective?
A. First, once you have accepted, you must continue to make your
car payments; for the
time being, at least, you are considered the car's owner, and are responsible
for its costs.
(You may be able to get your money back later.) You may not reject a car
already
accepted, unless you accepted it based on the assumption that the seller
would repair the
defect within a reasonable period. Your option now is to revoke your acceptance.
You
must give the seller notice of the defect, and show that it substantially
impairs the value of
the car to you.
Revocation involves a higher standard than rejection, and different states
have various
standards. Generally, the defect will have to be major to allow revocation.
After revoking
acceptance, you must act as if you had originally rejected the car. Leave
the car in your
driveway until the seller reclaims it, or return it yourself.
Q. May I get my money back if I reject or revoke acceptance?
A. You should be able to recover your money. If your written
demand for a refund is
denied, you will have to sue the seller. The seller has the right to deduct
an amount per
mile driven from your refund. If your rejection is found to be wrongful,
the seller may
recover damages against you.
Q. May I simply use lemon laws and consumer protection statutes
instead of
warranties?
A. You may use them all. If you can prove seller fraud or deception,
the unfair and
deceptive practices statute in your state will help. You could invoke
the lemon laws by
showing that you tried to get the defect fixed the required number of
times, or that your
car was in the shop longer than the legal minimum before you rejected
or revoked
acceptance. This requires you to keep your records and receipts.
The Magnuson-Moss Warranty Act
The federal government protects consumers through laws like the
Magnuson-Moss
Warranty Act, passed in 1975. It applies to all cars manufactured
after 1975 that dealers
sell and warrant in writing, and provides that you have the right
to see a copy of the
dealer's warranty before you buy. The information provided in the
warranty will be more
detailed than that provided on the Buyers Guide, and includes an
explanation of how to
obtain warranty service. The Magnuson-Moss Warranty Act also provides
remedies for
breach of warranty. An aggrieved consumer can sue based on breach
of express
warranties, implied warranties, or a service contract. If you win,
you can recover
attorney's fees and your court costs. Under the Act, if a written
warranty is given, then
implied warranties may not be disclaimed. However, the duration
of any implied
warranties can be limited. The Act mandates that if the seller does
give you written
warranties, they must be conspicuously labeled as either "limited"
or "full.
Note that the Magnuson-Moss Act does not apply to "as is"
sales, or to cars bought from
private sellers.
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What is the difference between "limited" and "full"
warranties? |
