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Ely
Ely, Counselor at Law
Category: Consumer Protection Law
Satisfied Customers: 87244
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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I bought a new white 2013 mercedes at a local dealership last

Resolved Question:

I bought a new white 2013 mercedes at a local dealership last week. Since buying I found a few issues.

1. a large piece of plastic under the hood was defective and has been replaced.
2. tiny black "dots" all over the exterior which need a special cleaning to remove. the dealer removed most of them with a 3-step process which includes cleaning, polishing, buffing. but many still remain.
3. the black "dots" are underneath the clear bra which was added by the dealer, and the clear bra has swirl marks and bubbles.
4. the tint which was added by the dealer has bubbles and scratches.

The dealer says since the black "dots" are on all the cars in the lot, it is not a defect. But the dots still require a special process to remove, and leave brown stain under the clear coat.

I want out and want to return the car and get my money back. Is it possible? What steps are necessary?
Submitted: 12 months ago.
Category: Consumer Protection Law
Expert:  Ely replied 12 months ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am sorry for your situation. On this website, I do not always get to give good news, and I am afraid that this is one of these times.

I want out and want to return the car and get my money back. Is it possible?

Likely not, I am afraid. Allow me to explain why.

WARRANTY
According to Colorado Statutes 42-10-101 et seq, there are lemon law warranty laws in Colorado. However, it only comes into pay if the vehicle does not perform, drive, etc. See here. The large piece of plastic that has been replaced, the black dots, and the tint issues are all indeed issues, but they do not go to the performance of the vehicle. As such, the contract cannot be "undone," I am afraid.

So you do have options, but not simply returning the vehicle.

BREACH OF CONTRACT
Breach of contract may be minor, or material.

A minor breach is substandard performance but one that does not cancel the contract.

A material breach goes to the "heart" of the matter wherein the performance is so bad, or nonexistent, that it validates the other party walking away from the contract.

Is it a minor or material breach? The Court would decide based on the following subjective factors:

1. The extent to which the injured party will be deprived of an expected benefit
2. The extent to which the party can be adequately compensated.
3. The extent to which the breaching party will suffer forfeiture.
4. The likelihood that the breaching party will cure their failure
5. The good faith of the breaching party.

Here, this is arguably a MINOR breach of contract for any work that the dealer has done with the vehicle after you purchased it but before you took possession such as paint chips, tint, etc. The dealer can be made to pay for the repairs to bring these up to proper form, but this is not enough to void the sale. I am sorry.

Often, a letter threatening to sue unless they perform the necessary work or pay you to have someone else do it will have them acquiesce and agree to it to avoid litigation. Let me know if you need a sample of such a letter.

Please note: I aim to give you genuine information and not necessarily to tell you only what you wish to hear. Please, rate me on the quality of my information and do not punish me for my honesty. I understand that hearing things less than optimal is not easy, and I empathize.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces and then submit, as this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. (You may always ask follow ups at no charge after rating.)
Customer: replied 12 months ago.


so you're saying i'm stuck, even though there are black dots all over the car? nothing i can do?

Expert:  Ely replied 12 months ago.
Ferd,

I am afraid so. Black dots - even if unseemly - do not "void" the contract itself. Again, if the dealer is responsible for these black dots, you can likely hold them accountable for proper repainting of the vehicle. But you cannot void the sale. I am sorry. I want to be honest.

Gentle Reminder: Again, surely you prefer that I be honest in my answer – please remember that rating negatively due to receiving bad news still hurts the expert – it is simply the way that the system is set up. Please use REPLY button to keep chatting, or RATE my answer when we are finished. (You may always ask follow ups free after rating.)
Customer: replied 12 months ago.


but a proper repainting can't be like new, right? it's mercedes from germany...a repaint is not like a factory paint. surely something else can be done about this?

Expert:  Ely replied 12 months ago.
Ferd,

Well... if you feel you could succeed in explaining to the Court why the paint itself completely makes the vehicle totally different and not what you had purchased, the Judge (or jury, if you ask for a jury trial) may agree with you that this is a MATERIAL breach and as such, may void the sale.

However, this is subjective and one would really have to make the argument. Perhaps even use an expert. I am not saying it is impossible, but short of suing them to get out of the contract under material breach, I am afraid that your options are limited. I am sorry.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Ely, Counselor at Law
Satisfied Customers: 87244
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
Ely and 16 other Consumer Protection Law Specialists are ready to help you

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