> A car dealer advertised his car on his and other web sites as a
> superior model. However he sold a inferior model. The ads clearly
> indicate the VIN# with the superior model when in fact it relates
> to an inferior model. The car was purchased and paid the higher
> price because of the superior model.
> The dealer was informed immediately within 24 hours of this issue. He
> refuses to take the car back.
> We have copies of all the "false ads" with the VIN#s to support the claim.
> He claims the car was sold "as is" and that the false advertising claim
> does not hold water.
I am not a lawyer and this is not legal advice. If you want legal
advice, see a lawyer and pay for it.
That said... the dealer is blowing smoke out of his ass.
When something is sold "as is," that means that the seller does not know
(or is unsure of) the condition of the item. "As is" disclaims the
traditional implied warranties(*), but _can not_ disclaim express
warrantees. In this case, if the dealer says the car is model X when it
is in fact model Y, the express statement is breached.
Even if the seller _could_ disclaim the advertisement(@), he would still
be liable under the theory of "false advertising": stating in the ad
something that is simply not true.
In addition to the above, you have a specific VIN# in the ad. That is an
advertisment to sell one _particular_ vehicle -- the one identified by
that VIN#. Any other vehicle is pretty much per se fraud (or "mutual
mistake" if a simple error) and entitles you to return the car for a
I assume there's a non-trivial amount of money at stake here. You could
(a) quote chapter and verse to the dealer (look up "as is" and "fale
advertising" in Wikipedia, and quote those).
(b) pay a lawyer to write a letter to the dealer. That will probably
cost you $200-500, but will probably get quick action. But it's not
something that you can get back from the dealer, so you'd be out the
cost of the letter.
(c) Sue him in small claims court. Simply filing the suit and serving
him with the papers should get his attention, but if not you should win
-- as long as you bring all the proofs you need: the registration with
the VIN#, the ad with the claimed VIN#, a photo of the car showing the
model, to compare with the ad that claimed a different model. And don't
forget to tell the judge that you already tried to return the car and
that the dealer refused it. _Sometimes_ small claims judges will ask
questions to elicit details like that, but often not, and if you leave
out some critical element you might get less than you would otherwise.
FIling a small-claims suit won't cost much. IN LA County you can do it
over the web, and the fee is $30-$75, depending on how much you are
suing for. You can have the papers served by a deputy sheriff for $35.
Or you can mail the "summons and complaint" to the dealer using
Certified Mail with Return Receipt Requested (CMRR). Or simply have a
friend hand-deliver the summons & complaint to the dealer -- in
California this can be done by any adult except you, your spouse, or
your lawyer. At one point my father drove me to the house of somebody he
was suing over a bad check, I went up to the house, rang the bell, asked
the person his name, and handed him the papers. Then I got back into the
car and we went on to work (I was working for him at the time).
If you sue him in small claims court and win, the filing fee and the
cost of serving him will be added to what the court awards you. (But you
don't get anything for the time you spend going to court and waiting to
I think a letter quoting "chapter and verse" and giving a deadline (say,
7 days), followed by small claims if he doesn't respond, would probably
be most efficient. If he decides to be reasonable, you don't have to
spend the time on small claims. If not, you get your money back plus
"costs", but you will probably lose half a day of work doing it.
You might check: some courts allows small claims to be heard at night.
(@) e.g., many contracts have an "entire agreement clause," which states
that only the words of the contract apply and cannot be modified by
other statements made by the seller, his agents, etc.)
(%) Considerations like "unjust enrichment" might sometimes apply, e.g.,
if you have retained the car after discovering the problem and driven it
some significant number of miles, you should pay for the use you got out
of it. But I doubt that would apply in this case, for two reasons:
A. The dealer used false statements (about the model and VIN#) to
induce you to buy the car. Unjust enrichment is rarely applied when
there is fraud by the person claiming it.
B. You made a good-faith effort to return the car, and the dealer
refused it. In legal terms, this means you "tendered" the car, which
should be considered as having fulfilled your obligation to undo the
transaction as soon as you found out the problem.
(*) Four traditional implied warranties:
1. "Merchantability": that it's reasonably fit for the general purpose
that it's sold for, e.g., that a car will run, a refrigerator will make
things cold, etc.
2. Fitness for purpose: *if* the seller knows that the buyer intends to
use the item for a specific purpose, the seller impliedly warrants that
it is useable for that purpose.
3. Workmanlike quality: that services will be of the quality you would
normally expect from a professional in the field. Not _excellent_, just
ordinary, competent work.
4. Habitability: that a residential property (sold or rented) is
suitable to be lived in.