I recently bought a car from a private dealer. They sold it to me as-is with no warranty but did not mention that it had four bad tyres that were ten years old and that the oil pan was leaking. What do I do since I can’t return the car?
Those who seek to get into contracts must open wide their eyes on the fine unspoken details within the terms of reference. Warranties are part of contracts issued to the purchaser of an item or article by a manufacturer, which promises to repair, maintain, refund, and replace it within a specified period.
The ethical basis for warranties is fairness in commercial dealings and reduction of consumer exploitation owing to information and knowledge vulnerability.
The shift, therefore, from the principle of buyer beware to warranty. Warranties provide customers with legally ensured service replacement or correction of issues insofar as the warranty stipulates in its conditions for the duration of its term.The Sale of Goods Act section 13 of the laws of Kenya explains that conditions and warranties may be either express or implied. They are said to be express when at the will of the parties they are inserted in the contract, and implied when the law presumes their existence in the contract automatically, even though unmentioned expressly. Implied conditions and warranties may, however, be varied by express agreement or by course of dealing between the parties.
It is therefore important to note that express warranties or agreements overrule implied conditions and warranties. Implied warranties are created by state law, and all states have them. Almost every purchase you make is covered by an implied warranty.
From your narration, I tend to assume that you bought a second-hand car from a private dealer thus, there is no express warranty or written terms of engagement in case the car develops any mechanical problem, but do not worry as the implied warranties cover you.
Implied warranties come in two general types: merchantability and fitness. An implied warranty of merchantability is an unwritten and unspoken guarantee to the buyer that goods purchased conform to ordinary standards of care and are of the same average grade, quality, and value as similar goods sold under similar circumstances.
This warranty automatically forms a part of every sale until a seller or the merchant modifies it otherwise. The warranty of merchantability covers new as well as used goods. If the goods are used, most sellers add an extra caveat. Used goods are guaranteed to work for their intended purposes, given their condition at the time of resale.
Thus, the warranty does not require that second-hand goods work and new ones but will still guarantee that they work as expected, given their condition.
The merchantability warranty is based on the idea that the seller is in a better state to know whether a product will perform properly. It encourages merchants to ensure the quality of their products before placing them on the market.
After all, a seller is in a better place to know if a car isn’t in an adequate state to drive, a blender is too slow to blend food, or seeds too old to sprout new crops.
It is unethical for the car dealer to sell to you a car that has four bad tires and an oil pan that was leaking as he/she is better placed to know the state and quality of the cars that he/she is selling and mostly because people rely on his expertise and skill, such that their choice of car is influence by what he/she recommends.
The Consumer Protection Act 2012, in Article 46 of the Constitution of Kenya, promotes and allows for the enforcement of consumer rights, and an emphasis to seek redress upon infringement. Part II gives the consumer rights the right to full pre-contractual information for the consumer to make an informed choice, the right to complain concerning quality, delays in provision of rectification, quantity and price of such goods or services as are offered.While it is clear that the car dealer may have violated the implied warranty laws, since the car is not of merchantable quality, a number of other arguments may be fronted.
The car dealer could easily argue that you entered this sale-purchase agreement based on “as is where is”. It is assumed; therefore, that buyer has checked the item on sale for defects of quality, even if not. Remember, both the tires and a leaking oil pan are visible.
Notwithstanding, you have the following avenues to try and find a solution: seek redress with the seller directly and agree: contact a consumer protection office and lodge your complaint. It should investigate false or misleading representations, unconscionable conduct, and supply of unsafe, defective, and unsuitable goods.
You may then use the report to sue the car dealer for professional negligence and institute a claim in the Small Claims Court if the value of the damages is worth an amount less than one million Kenya shillings.
The procedures in such courts are inexpensive, fast and straightforward. Remember, he who alleges must prove. Have evidence to support your claim.
Eric Mukoya is the Executive Director, Legal Resources Foundation Trust. Do you have a legal problem you would like addressed by a lawyer? Please email your queries to [email protected]
