definition of "as-is"

[nicholas421]

i bought my nsx "as-is". 4 days after i picked it up, i noticed small paint cracks with what appeared to be bondo underneath. i took it to a body shop and sure enough there was body work done to the driver's side fender. it was repainted along with the front bumper. although i bought it "as-is", i did so under the impression that there were no accidents and no repaintings. the owner told me so in writing (email).
i asked him if we could talk about some sort of compensation. he replied that by "no accidents and no repaintings" he meant that there were none during his ownership (he was not the original owner). he said that in any case, the car was sold "as-is" and that was the end of it.
i'm rather irked by the situation but i think i'll just let it go because i did get a good deal regardless. i was just wondering if i have a legitimate gripe. or is he correct in that "as-is" means "as-is" no matter what?

 

[flaminio]

IANAL, but I think you're hosed. You should have checked out the body before signing the papers. If there was a deliberate and provable falsification, you might be able to sue him and get a judgment, but in such an eventuality you must weigh the cost of the suit versus the amount of any potential judgment. Small claims could be a way to go, but you're limited to $5,000 (or so), which may be less than you're seeking.

Hindsight being 20:20, but you should have had the body shop inspect the car before making the purchase. (This is more for those out there still in pre-purchase mode.) I had a body shop and a trusted mechanic inspect my NSX before buying. If the seller had not agreed to this, I would have walked.

-Bob

 

[robr]

was the vehicle purchased in MI? some states have laws against as is sales (MI isn't one of them). here's some more info:
http://www.ftc.gov/bcp/conline/pubs/autos/autoserv.htm
http://www.ftc.gov/bcp/conline/pubs/autos/usedcar.htm

it also appears the rules of "as-is" differ between used car businesses and private sales, but i was reading on another site that if representations are made and are in writing, that you have some recourse. if they seller meant that "there were no accidents during the period i owned it" then he should have written that. of course he could say that he never knew there had been an accident, in which case he wrote that in good faith and there is probably nothing you can do.

next step id probably do is you really wanted to follow up on this is learn more about the car and see if you can tie the accident timeline to the seller somehow. if an insurance company was used, there are records out there.

 

[Biaggi]

You can also run a Carfax on it to see where it was titled and if any accidents were reported so that you can have that info....

------------------
Biaggi
92 Red NSX #483
94 CBR900RR

 

[MAJOR STONER]

While the extent of the damage to the fender is unknown to me, perhaps the bumper was sprayed as part of the deal, just to get the chips and scratches out. Does it seem like a minor parking lot bump, or a good hit that reguired the nose to be straightened? Unless it is the latter, it may not be worth it. If it was major damage that affects your resale, that may be worth small claims court to you. Myself, I would chalk it up to experience, and this will help you keep a cooler head and be a better, more educated buyer. Remember, some people are very good a desception, and these things happen, and you shouldn't blame yourself for not seeing it first.

I dropped my wrench on my fender, I guess you wouldn't be interested in buying it now? Of course, you would. But was it involved in an "ACCIDENT"?

 

[Lud]

robr - I'm no lawyer, but reading through the links you provided it sounds like every state allows as-is sales, just that some states require DEALERS to do a few extra things for their as-is sales. I didn't see anything about private-party as-is sales.

nicholoas421 - I do not think you have any recourse. You would need a signed statement from the seller guaranteeing no body work and listing your options if you discover there was body work (open-ended guarantees are hard to work with). Beyond that, it really doesn't matter WHAT the seller told you - an as-is sale means as-is when you come down to the legalities. The responsibility is on the buyer to inspect the car to their satisfaction prior to the sale.

[This message has been edited by Lud (edited 06 August 2002).]

 

[bayareansx1999]

i dont think you have a case in this matter, the seller didnt lie to you, because he really didnt have prior knowledge that the car has been into an accident. you might also want to run a carfax on the car.

since you said you got a good deal on the car, with the extra $ you might want to get it repainted to your liking.

 

[Michigan NSX]

Caveat Emptor

------------------
'91 Black/Black

 

[jorligan]

Nick,
Send me your VIN and I will run a CARFAX for you if you're interested.

Tim

 

[Jimbo]

Actually, I think you might have a legit claim here.

If the seller represented, that while he owned the car, it was not painted or involved in any accidents, and he couldn't speak for prior owners, that's one thing.

If, on the other hand, the seller wrote to you and made the claim that this car has never been in an accident or repainted then I think that's another matter entirely. If he was unclear, either on purpose or delibrately, that he really meant "during HIS ownership" then I think that's a problem.

It ALL comes down, IMHO, on how he represented the car. The "as-is" statement shouldn't even come into play.

If made a claim that the car had no accidents and no repaintings, without any qualifications, then I think a reasonable person could expect to understand this as meaning NO ACCIDENTS and NO REPAINT at all.

Now, the question is whether it's worth your time and effort and expense to pursue it.

-Jim

------------------
1992 NSX Red/Blk 5 spd #0330
1991 NSX Blk/Blk Auto #3070 (Sold)
1974 Vette 454 4 spd Wht/Blk
http://homepage.mac.com/jimanders/PhotoAlbum1.html

 

[nicholas421]

thanks all.
i ran a carfax before buying it. it came up clean. except for the bondo and paint job, the car is perfect. all records were provided (well, except for one). maintenance is up to date.
i would've normally gotten a mech and body shop to inspect it prior to signing.. but a well respected nsxca member knows the previous owner personally and had nothing but positive things to say about the guy and the car.
i am not seeking a refund or compensation... as jimbo pointed out... it's not worth my time or effort. i'm just pissed at myself and wanted some sympathy. =)


[This message has been edited by nicholas421 (edited 06 August 2002).]

 

[nsxtasy]

Originally posted by nicholas421:
wanted some sympathy.

Sorry to hear about it, Nick.

But concentrate on the fact that you've got a great, well-maintained car that you can still enjoy driving (A LOT), and unless you point the body repair out, no one will ever know.

 

[Lud]

Originally posted by Jimbo:
It ALL comes down, IMHO, on how he represented the car. The "as-is" statement shouldn't even come into play.

From an ethical standpoint you are right. From a legal standpoint, I don't think there is any PRACTICAL recourse.

See http://www.uslaw.com/library/article/crpscasis.html?area_id=45

The law says that if it could have been visually inspected prior to the sale, it is the buyers responsibility to do so, and once the car is sold as-is, it is sold as-is.

The ONLY possible recourse in an as-is sale would be to prove intentional misrepresentation, and I do not think it is going to be practical to do so even if it may be technically possible (though unlikely).

You are going to start out with a strike against you since this is something which could have been easily determined from a visual inspection, as opposed to say odomoter tampering or a salvage history.

But let's say you did want to pursue it. Assuming there was deception, you would need to prove it. You'd need some sort of record. To get the record you are in a catch-22 because you need to show probable cause that the seller (and not a previous owner) had the work done in order to get a supoena to get the records from insurance or whoever.

Even if you get the records, you then have a "his word vs. your word" case or he can just say he told you about the body work and you bought it anyway.

E-mail is tricky. You can't prove he sent you an e-mail saying there were no accidents versus you editing his e-mail to say that unless you can get the original message off HIS computer, which would mean at least a warrant and independant computer forensics investigator. Good luck... that only happens in serious criminal or very high-stakes civil situations. It's not going to happen for a couple thousand dollar dispute over a used car.

And all of that is assuming the guy WAS lying. If the previous owner had the work done, you have no chance unless you can get the guy to come in under oath and testify that he told the guy about the work at the time he sold it to him, and even then you probably have no chance without the warrant you will never get to find the e-mail on his computer (assuming it is still here) telling you the car had no work done to it.

So that's what I mean by no practical recourse.

i'm just pissed at myself and wanted some sympathy. =)

Sorry to hear about your discovery!

At least now you don't have to worry about maintaining a 100% factory finish. A lot of owners really stress out about that stuff to the point where I think it detracts from their enjoyment of the car. If the repair bugs you, you can probably replace that quarter panel and have it nicely painted for around $1500, less if you get a used panel.

[This message has been edited by Lud (edited 06 August 2002).]

 

[Jimbo]

Lud,

Well it sounds like this is all a moot point anyway.

Nicholas...You have my sympathy.

-Jim

------------------
1992 NSX Red/Blk 5 spd #0330
1991 NSX Blk/Blk Auto #3070 (Sold)
1974 Vette 454 4 spd Wht/Blk
http://homepage.mac.com/jimanders/PhotoAlbum1.html

 

[nsxtasy]

Originally posted by Lud:
The ONLY possible recourse in an as-is sale

The other thing to realize is that from a legal standpoint, if you were to sue, you would be suing for damages. And to do so, you would have to not only prove the misrepresentation, but also prove the amount of the damages - IOW, "prove" that the car was worth a certain amount with the repaired damage and a certain amount without it, so that the compensatory damage you would be suing for would be the difference between the two figures. This is a VERY difficult amount to prove, particularly on a low-volume car like the NSX. Yes, if you were in a real civil case, you could add on punitive damages that are some multiple of compensatory damages (I think punitive damages are generally prohibited in pro se court - small claims - but IANAL) - but you can see the many difficulties of pursuing such a case.

OTOH, I see that this question has proved another proposition - that NSXprime is one of the few places in the world where you can ask for sympathy and actually receive it. What a great place to hang out!

 

[nicholas421]

ignorance doesn't dismiss you of guilt. for instance, if i get pulled over doing 75 in a 65mph zone because i thought the limit was 75.. i am still going to get a ticket.

similarly (and maybe i'm reaching here) if the seller genuinely thinks the car is accident free and claims so... does this excuse him of misreprestation?

 

[Lud]

Yes. In your example you WERE speeding regardless of whether you knew it or not.

In order to intentionally misprepresent something, you have to KNOW you are misrepresenting it. You cannot do it by accident, and it is not his responsibility if he didn't notice it while he owned the car (or can reasonably claim that is the case).

The law clearly sides with the seller if they did not intentionally and knowingly misrepresent the vehicle, especially a private seller.

 

[ak]

Hey Nick, I feel for you. If you ask someone if the car has been in an accident, obviously you are asking about the whole history of the car, not just the person's ownership. But not everyone holds themselves to their morals, and though it's sad, it's the truth. I hope you'll be abled to work something out with the previous owner.

 

[RSO 34]

I am an attorney, albeit practicing in New York so I am not familiar with the specific rules in your state. However, an "as is" sale is basically a buyer beware transaction. Your situation differs only because there may have been a specific representation of "no accidents" done to induce you to go through with the transaction.

Depending upon the wording of that email, arguably you have a claim for fraud. However, that would then go back to the intent and knowledge of the seller as to what he knew at the time of the sale.

He could argue that he was unaware of any prior accidents but he knew that none occurred during his ownership. There would be no duty on his part to research the history of his car for your benefit prior to the sale.

In terms of your damages, Ken's note would apply except it would be highly unusual if punitive damages would ever be available to such a claim. Your other problem would be your comparative responsibility in terms of being able to determine the prior body work before going through with the sale. In other words, you could prove that you were induced by the fraudulent misrepresentation of the seller but your damages would have been mitigated simply by inspecting the vehicle prior to completing the purchase. You could win the battle but lose the war.

Now for the non-legal opinion - - - keep the car maintained mechanically and enjoy every minute of ownership and driving pleasure.

Bob

 

[Michigan NSX]

Originally posted by RSO 34:
I am an attorney...an "as is" sale is basically a buyer beware transaction...

Like I said.., Caveat emptor.

------------------
'91 Black/Black