When Sales Are Final

What does "as is" really mean.

If you buy anything marked "as is," you really are buying it "as is," with all the defects you could have discovered if you had given it a reasonable inspection. Let's say you buy a used car "as is," and you have not been prevented from fully inspecting it or from having your mechanic check it. If you drive 15 feet and all four doors fall off, stop. Go back and pick up your doors, for they are yours, along with the rest of your drafty purchase, or you could be charged with littering.

If it is "as is," the car is yours, even if you are still making payments on it.

Not long ago, Mrs. Davidson decided to buy her teenage son a used car. She was looking for a particular Japanese brand because of its reputation for going 200,000 to 300,000 miles before becoming irreparable. Mr. Johnson had two of them in his front yard. She bought the black one. It died almost immediately. When the case came to court, Johnson and Davidson agreed that he had given her the opportunity to have the car inspected by her mechanic before she bought it. She didn't "get around to it" until the day after she paid for the car, when Mr. Johnson gave her the bill of sale that said, "This vehicle is sold as is, without warranties." Johnson even pointed this language out to her when he gave her the bill of sale.

When Mrs. Davidson's mechanic checked the car over the next day, he noticed a lot of hoses and wires that didn't go anywhere. Although he was an experienced mechanic, he could not identify the manufacturer of the motor. Mrs. Davidson wanted her money back! She did not get it. Her purchase was "as is."

One fact that helped Mr. Johnson was that he was not in the used car business, so a duty to inspect or to know what he was selling could not be imposed on him. Even had he been in car sales, the "as is" on the bill of sale would have doomed Mrs. Davidson's case.

Automobile salespeople and others who regularly deal in used goods are notorious for saying things such as, "This is a great car," "It is good, reliable transportation," "This is sure to give you years of good service," or "This car (boat, stereo, motorcycle, television, computer, camera, bicycle, watchdog) is for you!" These statements and those like them say nothing specific about the quality of the goods you are about to buy. If they are promises about the future, because no one knows what will happen in the future, the promises cannot be enforced against the speaker. These are known in the sales world as puffing. Good salespeople are expected to emphasize the good attributes of what they sell and minimize the shortcomings. They puff their goods up in the eyes of the prospective buyer, making them look larger, better, and more valuable than they would appear from a more evenhanded examination. Expect to be puffed at and accept these exaggerations for what they are. Don't take them seriously. The law doesn't.

If you take a minute to reread the previous puffing statements, you can see that what they assert are matters of opinion. Because they are not statements of fact, they cannot be the basis for a claim of fraud, deception, trickery, or misrepresentation.

Suppose a salesman says, "This car has had one previous owner, a retired schoolteacher who drove it only to church on Sunday and to her Thursday night bridge game, and it has only 20,000 miles on it." If the salesman knows that he bought it from the local police agency after its having been used by a drug ring to run drugs between Canada and Mexico, and in fact has 220,000 miles on it, there is deception you can sue on. Misrepresentations of facts result in fraud, discussed later in greater detail. They can appear in many ways, in contracts for both new and used goods and in contracts for services. Ads for goods may contain facts that are blatantly not true or merely half-truths. A house painter may grossly overstate his qualifications and experience. You may pay $3,000 cash for a used truck on the implied representation that the seller has title to it when h doesn't. A mortgage lender may take a fee up front from you on the representation that he has the contacts to get you a loan, but then he does nothing. A roofer may get $400 from you for "materials," but never materializes himself. (Unlike promises about the future, these last two examples show a present intention not to perform, an intent to deceive at the time the transaction is entered into.)

Be aware that the law frowns on any kind of deception, and if you are defrauded, you may recover additional damages in your civil case to punish the wrongdoer and to prevent him from repeating his wrongful conduct. Some fraud is criminal, and you have other ways to get your money back. But as long as a seller, professional or not, did not misrepresent facts about an item you bought as is, you've lost if the item turns out to be trash.

One final note on contracts: The laws concerning certain special contracts, such as landlord and tenant, the collection of judgments from other states, securities law, and foreclosures on personal property vary from state to state. The laws in these areas have developed to meet the peculiar conditions in your state. For example, in a rural state, the law may favor landlords, while in an urban state, it may favor tenants.