Used Car Breach of Warrant - Do I have a case?

[DMat]

Back in late 2009 I was looking for a used car and finally found 1 at an Acura dealership in NJ. Before negiotating the contract they showed me the CarFax which showed that the car was in an accident and had been repaired by an authorized Acura shop. The car is an Acura. The car was not certified because I chose not to since it had low miles. They told me since the work was done by an authorized shop they could but I didn't want to pay the additional $3-$4k.

During our inspection of the car we noticed the door was not properly closing. It closed but it had a little hiccup. So during the negotiations we had the sale associate add a note in the contract that the contract was contingent upon the repair of the door. He then signed it. We have a copy.

When we picked up the car the door was fixed. After a couple of weeks the door starting showing signs of not properly closing so I brought it back to the same dealership. They fixed it and I went on my way. A couple weeks later the same thing. So I went back and they fixed it. After about the 4th-5th time I talked to the service mgr and showed him the contract. They took the car to the body shop to have fixed. A couple weeks later it happens again. I esculate it to the GM and Corporate Acura and they take it to another body shop and they couldn't fix the issue.

In the past 2 1/2 yrs they have tried to fix the car about 10 times and 4 times it has gone to a different body shop. I have all the service records. Since we had it in the contract that the contract was contigent on the door being fixed isn't the dealership in breach of contract?

I talked to a lawyer and he said they are but dealing with arbitration (which he believe it would go that route) would be hit or miss. I just want to get my money back since they couldn't fix it and I have given them more than enough tries. Do I have a case? Has something like this happened in the past and the consumer won?

 

[fredrikklaw]

You rescind, you lose!

Technically, yes; the dealership is in breach of contract, but going strictly by the information you have given, there are factors present on both sides of the argument that would more or less eliminate recession of the contract as a possible remedy to your dilemma, with the most notable of those factors being the length of time the vehicle has been in your possession.

The first thing that should be considered is whether the breach is Total or a Minor one. A total breach is the non-performance of a contractual duty so important and material that it basically destroys the entire value of the contract and justifies the recession (cancellation) of the contract by the injured party. On the flip side, a partial breach is the failure of performance of an immaterial promise that does not affect the overall purpose and value of the contract allowing the rest of the contract to proceed without the offending part.

So, will the door not closing properly (which I presume means the door does not align completely with the rest of the car when closed) be considered a big enough breach to warrant the recession of the entire contract? I would have to say NO.

Then there is the fact that the dealership has so far not only NOT refused to help, but has also been extremely diligent in his good faith attempts at curing the breach (admittedly) on no less than 10 occasions. Add to this what would certainly be considered by the Trier of the facts your implied consent and satisfaction with the dealer's attempts to cure the breach by maintaining possession of the car for two and a half years, then the prospects of a successful recession become even dimmer.

Also, you were made patently aware of the door's imperfection by proper disclosure and still elected to consummate the contract and take actual possession of the vehicle with the proviso of a contingency; the performance of which (it seems like) was not bound by any time restraints.

Now, let us presume that you inform the dealer of your desire to kick the contract to the curb and lo and behold, he agrees to the recession and a refund. A REFUND, not TO REFUND YOU! Meaning you are not going to get back 100% of the monies paid at the beginning; what you will get in such a scenario is the monies paid less than the amount for the use and enjoyment (well, not complete enjoyment) of the car for two and a half years.

So is it worth rescinding the contract even if the dealership goes for it? I think not! Why lose your shirt on a problem that has a fairly painless solution. Besides, before you start something that could well land both parties in a court, you simply have to do what the law says you should do before running off to file a suit. Under Contracts Law, an injured party "… should not allow damages to compound by resting on his laurels and should take steps to mitigate damages whenever possible by attempting to cure the defect himself…!" (paraphrasing)

So, should this thing end up in court, you will be asked to explain why you did not attempt to fix the door yourself all this time, which is the painless solution I mentioned above. So, what you can do, and you would be well within your rights, is to send the dealership a Notice to Perform, and give him so many days to do it in, and to do it properly. If that does not pan out, then take the car to a body shop or a mechanic of your own choosing and have the door fixed good and proper and to time indefinite. He will either foot the bill or you simply sue the dealership in small claims court and be done with it.

You are too far into the contract to execute a successful or even a beneficial recession or a reformation and your best bet would be to take the fixing of the door into your hands, not the cancellation of the contract.

fredrikklaw