Protecting the Rights of Consumers For Over 25 Years

Q. Three days ago I bought a used car from a dealer. The papers said "as is." I took it to a mechanic because it was making noises and check engine light came on. The mechanic told me that the engine, both axles and the axle bearings were damaged and had to be replaced. Also, the whole underside of the car is covered in rust. At first is wasn't noticeable but after further inspection they noticed some one painted the whole underside of the car in black truck bed liner to hide the damage. I called the dealer but they gave me the run around. I can never get a hold of a manager.

A. Illinois no longer permits "as is" sales by car dealers. Illinois now has a statutory warranty on most used cars for the lesser of 15 days/ 500 miles. (815 ILCS 505/2L) It requires that the car be fit for operation on the highway. It also applies to the power train, defined as "the engine block, head, all internal engine parts, oil pan and gaskets, water pump, intake manifold, transmission, and all internal transmission parts, torque converter, drive shaft, universal joints, rear axle and all rear axle internal parts, and rear wheel bearings." It applies to all used cars except: (1) a vehicle with more than 150,000 miles at the time of sale: (2) a vehicle with a "rebuilt" or "flood" title; (3) a vehicle with a gross vehicle weight rating of 8,000 pounds or more; or (4) antique or collector vehicles. It also does not apply if the dealer "offers" an express warranty that provides coverage that is equal to or greater than the statutory warranty. "Offers" may not require that the consumer purchase the warranty.

The maximum liability of the seller under the statutory warranty is the purchase price paid.

The statutory warranty may not be disclaimed by "as is" language or otherwise. All agreements for the sale of used motor vehicles to which the warranty applies must include the statement that "Illinois law requires that this vehicle will be free of a defect in a power train component for 15 days or 500 miles after delivery, whichever is earlier, except with regard to particular defects disclosed on the first page of this agreement. "Power train component" means the engine block, head, all internal engine parts, oil pan and gaskets, water pump, intake manifold, transmission, and all internal transmission parts, torque converter, drive shaft, universal joints, rear axle and all rear axle internal parts, and rear wheel bearings. You (the consumer) will have to pay up to $100 for each of the first 2 repairs if the warranty is violated."

Failure to include the statement makes the contract voidable. Arguably, attempting to contradict the statutory warranty disclosure by stating that the car is purchased "as is" makes the contract voidable.

Note that the statement does not cover the full extent of the warranty; the statute was modified after it was first enacted, and the required statement was not updated.

Notify the dealer in writing of all problems, at least some of which may be covered. Use means providing proof of receipt. (Telephone notice preserves your rights, but is hard to prove.) Notice should be provided within 15 days/ 500 miles.

In addition to the statutory warranty, we often bring suit for violation of express, implied and written warranties under the Uniform Commercial Code and the federal Magnuson Moss Consumer Product Warranty Act. Car dealers often attempt to disclaim express and implied warranties, but in attempting to both disclose the Illinois statutory warranty and disclaim everything else, car dealers often make inconsistent statements, with the result that their disclaimers are ineffective.

Implied warranties require that a car be fit to drive and pass without objection under the contract description. Express warranties require that the car conform to any statements that the seller makes. A written warranty is one that promises that the seller will repair or replace anything that fails within x miles or y months.

The concealment of damage through the use of unusual paint or similar methods may be consumer fraud. The dealer is not protected from liability by an "as is" clause if it knew of a serious defect and concealed it from you.

As soon as you have given notice, call us and arrange to get us all papers relating to the purchase, financing, repair, inspection, etc. We do not charge for consultation.