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Ely
Ely, Counselor at Law
Category: Consumer Protection Law
Satisfied Customers: 99981
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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I had recently sold a clark forklift on ebay and the buyer

Customer Question

I had recently sold a clark forklift on ebay and the buyer bought the forklift as is. He was using the machine and blew out the cylinder brakes. As he called to get that fixed realized it was an expensive fix. The new owner found a description error on ebay and requested his 6500 dollars plus his shipping back along with his fee he paid someone to come out and tell him the cost of the repair. In the meantime is when he said he found the machine wasn’t a 2001 it was a 1970 machine. We had a phone call with his operator and he admitted and said he broke the machine while in use. We just have a message the buyer bought the machine as in in writing and the serial number was listed with the machine before purchase that showed the 1970 date. The bot***** *****ne is the repair is probably more then the cost of the forklift.
Submitted: 1 year ago.
Category: Consumer Protection Law
Expert:  Ely replied 1 year ago.
Hello and welcome to JustAnswer. Please note: (A) This is general information and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms; and (B) the site allows experts not participate in phone calls and I may or may not be able to participate in this feature.
I am sorry to hear about this situation. Can you please tell me:
1) Did you list the forklift as being a 2001 model, or a 1970 model, or what exactly?
2) Did the description state "as is?"
This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 1 year ago.
The machine was listed as 2001 on a type o. The serial was also listed along with 25 pictures. They received the fork lift and I have written they received it as is and it was listed as is. They used the machine for 2 weeks before breaking it. They broke the machine on an overload admitted on a phone conversation with 4 in attendance. The transaction was done in pa and shipped to Baltimore, MD
Customer: replied 1 year ago.
The biggest issue we have is we can not resell it they broke a break cylinder which would cost 5,000 to fix the machine that we sold for 6500. That was there reasoning to try and get there money back.
Customer: replied 1 year ago.
Here was the buyer dispute
To whom this may concern: I purchased this fork lift thru Ebay it was advertised as a 2001 it is a 1970. I have attached the original product ID card for this unit at the end of the attachment. I received the forklift on 6/26 we used it twice and the brakes/master cylinder failed. We called a fork lift repair company who came out inspected the unit notified us that the unit was 45 years old and parts were not available. We talked to the seller who does not want to refund our purchase price of $6,500 our offer amount. While we understand that the unit was sold to us as is and we took that risk the fact that the unit is 45 years old contributed to the brake failure of the unit. The repair company has cautioned due to age we will have significant problems in the future. Without the brake incident we would not have known the age of the unit obviously. We are asking for reimbursement of the equipment plus the shipping cost of $1,100. Total reimbursement request is $7,600. We were charged for the service call and assume that is an unrecoverable expense...
Expert:  Ely replied 1 year ago.
Thank you.
Please explain how the 2001 typo turned into 1970?
I can understand that a 2001 can be accidentally turned into 2011, but how did it becomes 1970?
Customer: replied 1 year ago.
The previous owner told us 2001 there was no year model on the machine just a serial number. The 2001 wouldn't have been an issue till the new owner broke the breaks so bad it would cost more to fix then to buy a new one.
Customer: replied 1 year ago.
I think we need to fight the as is and the company used it for two weeks before breaking it. It is similar to buying an ipad then breaking it and then asking for your money back plus costs that we didn't know about including shipping and a guy to come fix the machine.
Expert:  Ely replied 1 year ago.
Thank you.
My apologies, but I have to step away from the site. Because I do not want you to wait, I am going to opt out of your question and open this up for other experts.
Your JustAnswer Account has not been charged for this conversation and your question is back in the queue. You do not have to stay online for the question to be active. Should an expert pick it up, you should be alerted via email and/or SMS (text message) unless you actively disable these features.
There is no need for you to reply at this time as this will "lock" your question back to me, thus inadvertently delaying other experts' access to it.
My apologies for any inconvenience and good luck...
Expert:  N Cal Attorney replied 1 year ago.
New Expert here.
Please clarify, was the buyer aware it was made in 1970 prior to the purchase?
Customer: replied 1 year ago.
The buyer didn't know it was a 1970 machine. It was sold as a 2001 as is. The serial number showed a 1970 neither party new this information until he blew the master cylinder to weeks after he had the machine onsite overloading blocks onto a truck. He called to fix the machine and realized it would be more to fix then what he paid is my guess. We thought it was a 2001 from the previous owner but we sold it as is. We have documents stating he bought it as it written by him also a phone conversation took place where is employee admitted to blowing out the master cylinder two weeks after he bought the machine.
Customer: replied 1 year ago.
Here is his dispute. We need to beat him on the as is, using the machine for two weeks, breaking the brakes, knowing the serial number before purchase which was provided. Here is his dispute that I need to reply too.To whom this may concern: I purchased this fork lift thru Ebay it was advertised as a 2001 it is a 1970. I have attached the original product ID card for this unit at the end of the attachment. I received the forklift on 6/26 we used it twice and the brakes/master cylinder failed. We called a fork lift repair company who came out inspected the unit notified us that the unit was 45 years old and parts were not available. We talked to the seller who does not want to refund our purchase price of $6,500 our offer amount. While we understand that the unit was sold to us as is and we took that risk the fact that the unit is 45 years old contributed to the brake failure of the unit. The repair company has cautioned due to age we will have significant problems in the future. Without the brake incident we would not have known the age of the unit obviously. We are asking for reimbursement of the equipment plus the shipping cost of $1,100. Total reimbursement request is $7,600. We were charged for the service call and assume that is an unrecoverable expense...Seller info:
Expert:  Ely replied 1 year ago.
Hello,
The previous expert has opted out for some reason, so I have opted back in.
Generally Speaking
If someone purchased an item "as is," there is really no guarantee. So normally, this would not be an issue, and the seller would simply not be liable, especially if the buyer broke the item in use and possibly of their own fault.
2001 v 1970
However, this becomes an issue when the item is actually from the 1970s. To the buyer, you MISREPRESENTED the sale. They can allege (1) fraud and (2) false advertising.
Fraud is which contains the following elements: (1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance. Gibbs v. Ernst, 647 A. 2d 882 - Pa: Supreme Court 1994 (citing Prosser).
For false advertising, see here.
It is presumed that you KNEW that the item was from the 1970s. Even if you could show that you REALLY DID NOT KNOW that this was from the 1970s, the false advertising may still apply.
Someone in your situation may also SUE the original seller for indemnification for lying about the year if the buyer sues you alleging one or the other above.
I cannot tell you what to do. However, for the buyer it looks like even if they did break it in use, that they can still argue that it was due to the item being so old, and then pursue for fraud. To avoid this, it may be better to settle the matter by offering to pay for PARTIAL bill to fix it? Only in exchange for the buyer WAIVING any claim, perhaps. Let me know if you need such a waiver template.
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