Monday, March 8, 2010, 11:34 AM
Posted by Administrator
Bob Smith, retired lawyer and (recently failed) moose hunter, writes from his cabin in Northern Wyoming:

I spend a lot of my free time now looking at EBay for great things I could buy if I had the money. Moto Guzzi LeMans motorcycles, BMW X5 SUVs, Sunfish Center Console fishing boats with 150 HP 4 stroke Yamahas on the transom. All this stuff is used and all the ads read "SOLD AS IS". Because, if a seller of used stuff does't make it clear to the buyer that the merchandise is sold "AS IS" then the seller....whether or not the seller knows warranting that whatever he/she is selling works well and is without any faults. There is a warranty attached to everything that gets sold (except real estate...houses and lots) and if the seller doesn't "disclaim" the warranty ("AS IS, WHERE IS"), the buyer can (in theory) recover money from the seller.

So, if you buy a snowmobile on EBay and the ad says it is sold "AS IS" then it doesn't matter that after it arrives on the truck from Sasketchuan, you find out that both skis are bent and the starter motor is a rusted hunk of scrap metal. On the other hand, even if the ad didn't say the snowmobile was sold "AS IS", are you really going to sue? Lawsuits cost money and lawyers don't take broken-used-snowmobile-warranty cases for a piece of the action. (If you are badly injured in an auto accident then 33%.....40% if a lawsuit gets filed...of the recovery is the going rate for attorney's fees. Those law firm ads on TV boasting that at THEIR law firm if you don't get money you don't have to pay the lawyers are based on the assumption that there are still a few prospective clients don't know that EVERY lawyer offers the no-recovery/no fee deal......not just the law firms hellbent on spending the most money for TV advertising.)

So, if your Ducati arrives in the back of a trailer two weeks after it left the garage of the EBay seller needing $3,000 worth of work on its desmodronic valves, you are on your own. No lawyer is going to sue the seller for 40% of $3,000 (and no fee at all if you lose or can't collect) even if the Ducati wasn't explicitly sold "AS IS".

In law school there is usually one exam and your entire grade is based on that one exam. The exams consist, usually, of several fact scenarios and you are supposed to write...for each scenario... as much of an answer as you possibly can before time runs out. Here is an example of what I imagine a test scenario in an exam for a course entitled SALES might be (Note: You will have one hour to write your answer):

It is Colorado...outside of Denver. The year is 1972. A man we will call Steve Duhl (because that is his name) has purchased a 1967 Austin Healy MKIII 3000 for $2,500. His friend gives him a ride to pick it up. As they drive away..with Duhl in the lead...the friend (driving a mid-60's Sunbeam Alpine) begins honking his horn. Duhl looks back and sees plumes of smoke coming out of the Healey's exhaust.

Duhl does not find out until years later that to fix the smoking exhaust problem, all he needed was a 2 cent sheet metal screw, one wrench and a free 10 minutes. His attempted fix in 1972 involved pulling the engine from the car and sending it off to a machine shop to have the piston rings replaced.

There was no written agreement between Duhl and the seller and the seller's newspaper ad mentioned nothing more than the year, make and price of the car.

Oh, by the way, at the time of the purchase, Duhl is 17.


+Note: "Discuss" in the context of law school exams means start writing...and don't stop until time runs out or until you lose your will to live.

To Be Continued.............................

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