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socrateaser
socrateaser, Lawyer
Category: Consumer Protection Law
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Experience:  Retired (mostly)
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Does the warranty of merchantability void a contract? i

Resolved Question:

Does the warranty of merchantability void a contract?

i recently picked up a car from a used car dealership and signed a contract but HAVE NOT been approved for the loan. the vehicle is unfit to drive due to a major mechanical issue
Submitted: 1 year ago.
Category: Consumer Protection Law
Expert:  socrateaser replied 1 year ago.
Hello,

The warranty of merchantability does not "void" a contract, because the term void means that a contract is of no force or effect for either party to the contract.

Rather, a breach of the warranty of merchantability, by selling merchandise that is not of "fair and average quality," means that the party in breach must pay damages to the injured party for the difference in value between the merchandise as sold, and the merchandise in condition which would satisfy the warranty.

If the goal is to avoid the entire contract, you would have to prove "misrepresentation," or "mistake," which means that not only is the vehicle defective, but also that the dealer misrepresented its condition to you before you purchased it, or that both you and the dealer were mistaken about the vehicle's condition, such that it would only be fair to void the contract.

Misrepresentation and mistake are generally much more difficult to prove, unless you have a witness who heard the dealer make promises about the vehicle's condition before purchase -- or, an expert, such as a mechanic who is willing to testify that no reasonable person in the position of a dealer could not have known that the vehicle was defective, prior to sale.

Hope this helps.
Customer: replied 1 year ago.

they said they inspected the vehicle but i have photos and documentation from my mechanic. but its all still he said she said.


so they should be responsible for correcting the defect?


 


also i have not given them my proof of residence for financing and the financing company has already stated they will not approve me, so they will have to finance me in house if they want to continue the contract?

Expert:  socrateaser replied 1 year ago.
so they should be responsible for correcting the defect?

A: If you have a mechanic who will testify as I previously discussed, then you may be able to prevail in court. Without that sort of testimony, you will have a great deal of difficulty proving your case.

also i have not given them my proof of residence for financing and the financing company has already stated they will not approve me, so they will have to finance me in house if they want to continue the contract?

 

A: That's true. If they cannot finance the deal, then there is no deal.

 

Hope this helps.

socrateaser, Lawyer
Satisfied Customers: 34133
Experience: Retired (mostly)
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