This seems like a very basic question, but a friend and I got into a disscussion over a espresso machine I bought at a flea market. I suppose this same question could apply to audio buying as well.
Say, you ask a person several questions about a product including "does it work" and each and every question is answered to the effect that what they are selling is working and perfect. Just before money changes hand, the seller says "this sale is as-is". You go home and try the product and it is DOA. Can his "as-is" statement cover him if he lied about everything? I mean, say the seller was taken in to court, who do you think would prevail legally?
good post moto_man. you've reduced a complicated issue of the law of contracts to a simple, understandable english statement. bravo! i've nothing to add nor subtract. -kelly
This is a response to the question posed by Kjg. In California (where I live) there is implied in every contract a covenant of good faith and fair dealing. Simply put, when two people enter into a contract, the law presumes an obligation on each party to act in good faith towards the other. Thus, you cannot say that the amp is working well when you know that only one channel is working well. This is merely another way to say that parties to a sale cannot lie to each other about the subject of the contract. If the unit is sold "as is" and there are no representations made about its condition, well, that is your problem for not asking about it. But if you ask about it and are lied to, you have a legal action regardless of the "as is" statement.
I am in California as well, and you summed up my question and the idea of this post with the "good faith" theory. If a seller acts in "bad faith", does the AS-IS apply?
I once sold a preamp thru a newspaper classified (in the good ol days) and the buyer came to my house and spent over 2 hours testing and restesting that it sounded fine and worked well...I usallly didnt write up a bill of sale, but with this person I did and had him sign that this sale is "AS-IS, final sale"\
I believe that in California at least, there is a "good faith" law that requires the seller and buyer to conduct their transcation based on some measure of trust and truth. Clearly, if the seller indicates that an item is in perfect shape, and it doesn't work at all, he is not bargaining in good faith and its likely that regardless of the as-is part of the contract, the buyer would have a case against him. I'm not an attorney, but I've heard this idea of good faith mentioned a few times and assume there's something behind it. It would be useful to hear from folks acquainted with this particular part of the law and get the real story. Ken
1) I know it works now, but if you break it, it fails, it doesn't perform as well as you had hoped or you just decide you don't want it, I dont want to hear about it after the sale.
2) I know it has problems but I don't want to admit them and don't want to hear about it after the sale.
But in either case...sale is final.
Most non-commercial sellers have no way to remedy problems (other than give back money) and have no control over the item after it leavs their hands. Thus, as-is. As always, it comes down to the integrity of the seller and the buyer. That can work both ways. Sometimes buyers "sabotage" gear so they can try to back out of a deal they have "buyer's remorse" on. One friend agreed to return money and take back a DOA preamp only to receive back a different, broken unit. Unfortunately, he had not recorded original SN, so he was out of luck. It's always more comfortable to be able to demo so there is no misunderstanding, but these days that's rarely possible.
To the buyer it means a value judgement, is the seller honest? If he is, you will probably not have a problem. But it is important to test and inform seller of problems ASAP. If you know the recipient has only had the unit for a day at the most, seller is more likely to believe it was DOA than if weeks go by.
At any rate, communication is the key. Let the seller know your concerns up front and agree to terms fair for all before pulling the trigger. If either buyer or seller feels uncomfortable with the deal, it's best to walk away.
Were I come from ( Transylvania )a good sold "as is " implies that the Seller carries no responsibility for the sold item, after the money changed hands. It also implies that the product might be ( but not necessary is ) in a less then perfect condition, including malfunctioning. This is to be determined by the Buyer by carefull examination prior to the goods/ money exchange. Logically, any discovered imperfection should be use as a bargaining tool by the Buyer. As I said, this is in Transylvania, were in order to survive, people cannot aford to assume things, but have to keep their eyes wide open...
When I purchase things online, I usually ask specific questions in emails about the condition or functionality of the unit. When there are written representations about the purchase, those will likely supercede a more general "as is" type statement in the ad. Of course, if someone states that it has not been used in years, or a channel is blown, etc. and the product is being sold "as is", well, you should expect that you may have to fix things. For example, I sold on old circa 1975 Luxman turntable. I had not used it in 10 years and did not even have a phono preamp to check it out. I sold it "as is" because I had no idea what the functionality was, other than that it turned on and seemed to hold a correct speed according to the strobe. I explained that to the buyer. DOA is a different problem. Something could function great and after shipping with UPS, not have a chance of working. That is what insurance is for!
Of course, the downside to the whole issue is that if misrepresentations were made, and you live in California and bought something from Virgina, it would be very difficult to get an enforceable judgment and collect on it anyway.
Well, I should clarify the situation. I found a vintage Lever type espresso machine at a flea market. I asked the seller several questions, he was adamant he sells only working good products. He grabbed my arm, and says trust me, "what I sell is good, I dont sell broken things. I test everything I sell here" (FYI, he sellls "nicer" things in this flea market) The interesting thing that after a deal is stuck, and after you spend minutes of questions and him assuring you he things are good, he tells every person "as-is" sort of in passing, once the money is changing hands. I happened to "luck" out that both things I bought from him, (espresso machines) work, but I posed this query to get others opinions, on the duties of sellers in terms of obligations on the stated condition of a product. I am full aware of "buyer beware" but it seems to me "as-is" cannot be regarded as binding if the seller willing misrepresents the condition when asked specifically about something and the seller replies with an affirming response.
In my opinion, in the proper context " I havent tested this unit, and it is being sold as-is" would indeed be a final sale, but "yes it works perfect, I guarantee it, I used it this morning, it is sold as-is" would not.
When somenone says, "As is", I ask him what he is representing. If he says nothing, wish him good luck.
As is means no warranties express or implied unless agreed to by the parties prior to the transaction. But, it doesn't prevent you from requesting a representation that the unit actually works.
I guess who would win, is a moot point. The guy with the best lawyer usually wins; in the right or not. In today's business atmosphere "right" doesn't always prevail. This item wasn't damaged in transit, was it? I would take the expression,"as is" to mean no warranty, maybe some cosmetic flaws,or operational quirks, minor in nature; but definitely working. If the term precedes the condition; that is one thing.This, to me, describes something that needs fixing. When used as a tag line;I would assume; it works well enough. Some carefully applied feedback seems all you're left with.Under such conditions;to bad you didn't back out before the money changed hands;sorry,I'm sure you already know that.
Sounds as if you bought an espresso from a Lawyer. (just kidding!) Personally, would have to walk away from anyone who has to add this to a sale... Would tend to think there are strings/problems with product/seller if this is said. Best, Charlie
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