40-17-101 Definitions.
Express warranties; duty to make warranty repairs.
(a) As used in this section:
(i) “Consumer” means any person:
(A) Who purchases a motor vehicle, other than for purposes [purpose] of resale, to which an express warranty applies; or
(B) To whom a motor vehicle is transferred during the term of an express warranty applicable to the motor vehicle; or
(C) Entitled by the terms of an express warranty applicable to a motor vehicle to enforce it.
(ii) “Motor vehicle” means every vehicle under ten thousand (10,000) pounds unladen weight, sold or registered in the state, which is self-propelled except vehicles moved solely by human power;
(iii) “Reasonable allowance for consumer’s use” means an amount directly attributable to use of the motor vehicle prior to the first report of the nonconformity to the manufacturer, agent or dealer and during any subsequent period when the motor vehicle is not out of service due to repair;
(iv) “Manufacturers’ express warranty or warranty” means the written warranty, so labeled, of the manufacturer of a new motor vehicle, including any terms or conditions precedent to the enforcement of obligations under warranty.
(b) If a new motor vehicle does not conform to all applicable express warranties and the consumer reports the nonconformity to the manufacturer, its agent or its authorized dealer within one (1) year following the original delivery of the motor vehicle to the consumer, the manufacturer, its agent or authorized dealer shall make repairs necessary to conform the vehicle to the express warranties. The necessary repairs shall be made even if the one (1) year period has expired.
(c) If the manufacturer, its agents or authorized dealers are unable to conform the motor vehicle to any applicable express warranty by repairing or correcting any defect or condition which substantially impairs the use and fair market value of the motor vehicle to the consumer after a reasonable number of attempts, the manufacturer shall:
(i) Replace the motor vehicle with a new or comparable motor vehicle of the same type and similarly equipped; or
(ii) Accept return of the motor vehicle and refund to the consumer and any lien holder as their interest may appear the full purchase price including all collateral charges less a reasonable allowance for consumer’s use.
(d) It is presumed that a reasonable number of attempts have been undertaken to conform a motor vehicle to express warranty if within one (1) year following the original delivery of the motor vehicle to the consumer, whichever is later:
(i) The same nonconformity has been subject to repair more than three (3) times by the manufacturer, its agents or its authorized dealers and the same nonconformity continues to exist; or
(ii) The vehicle is out of service due to repair for a cumulative total of thirty (30) business days.
(e) Nothing in this section shall be construed to limit the rights or remedies of a consumer under any other statute.
(f) Subsection (c) of this section does not apply to any consumer who has failed to exhaust his remedies under a manufacturer’s informal dispute settlement procedure if a procedure exists and is in compliance with applicable federal statute and regulation.
(g) It is an affirmative defense to any claim under this section that:
(i) An alleged nonconformity does not substantially impair the use and fair market value of the motor vehicle; or
(ii) A nonconformity is the result of abuse, neglect or unauthorized modification or alteration of a motor vehicle by a consumer.
(h) In no event shall the presumption herein provided in subsection (d) of this section apply against a manufacturer unless the manufacturer has received prior direct written notification from or on behalf of the consumer and has had a reasonable opportunity to cure the alleged defect.
(j) Any consumer injured by a violation of this section may bring a civil action to enforce this section and may recover reasonable attorney’s fees from the manufacturer who issued the express warranty.
The Magnuson-Moss Warranty Act is a federal Law that protects the buyer of any product which costs more than $25 and comes with an express written warranty. This law applies to any product that you buy that does not perform as it should.
The Magnuson-Moss Act is a federal law giving consumers considerable rights in dealing with manufacturers and car-dealers of lemon automobiles. This law guarantees a car buyer that certain minimum requirements of warranties must be met, and provides for disclosure of warranties before purchase.
Regarding “lemon cars”, this law greatly affects the rights of car buyers. For any product which has a written warranty, if any part of the product, or the product itself is considered defective, the warrantor must permit the buyer the choice of either a refund or replacement of the product.
We have argued successfully to juries that the lemon manufacturers and car-dealers should be given three (3) attempts to fix the defect. Continued attempts to repair beyond the initial three (3) should not be allowed. We call this the “three strikes and you’re out” principle.
A consumer may pursue legal action in any court of general jurisdiction in the United States to enforce his rights under the Magnuson-Moss Act. Attorney’s fees based on actual time spent will be covered if the consumer prevails.
Due to this particular condition, there is quite a bit of financial pressure on the manufacturer to settle consumer disputes before going to court, as this would keep their expenses down.
TARR BABY-The Uniform Commercial Code or UCC has been enacted in all 50 states and some of the territories of the United States. It is the primary source of law in all contracts dealing with the sale of products. The “TARR” refers to Tender, Acceptance, Rejection, Revocation and applies to different aspects of the consumer’s “relationship” with the purchased goods.
TENDER-The tender provisions of the Uniform Commercial Code contained in Section 2-601 provide that the buyer is entitled to reject any goods that fail in any respect to conform to the contract. Unfortunately, new cars are often technically complex and their innermost workings are beyond the understanding of the average new car buyer. The buyer, therefore, does not know whether the goods are non-conforming.
ACCEPTANCE-The new car buyer accepts the goods believing and expecting that the manufacturer will repair any problem he has with the goods under the warranty.
REJECTION-The new car buyer may discover a problem with the vehicle within the first few miles of his purchase. This would allow the new car buyer to reject the goods. If the new car buyer discovers a defect in the car within a reasonable time of inspecting the vehicle, he may reject the vehicle. This period is not defined. On the one hand, the buyer must be given a reasonable time to inspect and that reasonable time to inspect will be held as an acceptance of the vehicle. The courts will decide this reasonable time to inspect based on the knowledge and experience of the buyer, the difficulty in discovering the defect, and the opportunity to discover the defect.
REVOCATION- What happens when the consumer has used the new car for a lengthy period of time? This is the typical lemon car case. The UCC provides that a buyer may revoke his acceptance of goods whose non-conformity substantially impairs the value of the goods to him when he has accepted the goods without discovery of a non-conformity because it was difficult to discover or if he was assured that non-conformities would be repaired. Of course, the average new car buyer does not learn of the non-conformity until hundreds of thousands of miles later. And because quality is job one, and manufacturers are competing on the basis of their warranties, the consumer is always assured that any non-conformities he does discover will be remedied.
Note: The author of the sections on the Magnuson-Moss Warranty Act and the Uniform Commercial Code is T. Michael Flynn of www.defect.com