Can You Count On A Salesperson's "Expert" Advice?

You buy a truck to pull your boat trailer and specifically ask the salesperson if it will do the job. He assures you it will. Afterwards, you discover it couldn't pull your trailer downhill with a tailwind. Can you sue to un-do that deal? Probably not – unless you took specific steps to protect yourself.

This area of the law confuses many people: Can you count on promises the salespeople make about the ability of a product to do a certain job? And that confusion can lead to unhappy vehicle purchasers. Here is what you need to know.

Most states follow the Uniform Commercial Code when it comes to laws affecting the sales of goods. And automobiles are goods. Keep in mind that this discussion also applies to other products, like tools, equipment, farm implements and so on. We'll use automobiles as the focus here. The UCC says that you can rely on the statements of a salesperson and those statements can even be enforceable so long as they are not mere sales talk, or "puffery." "This car's odometer displays accurate mileage," is enforceable. "This is a wonderful car," is not.

More importantly, if a consumer relies upon the expertise of a seller and the seller "has reason to know" the consumer is relying upon them, a seller can be held to a higher standard, especially if the seller claims the goods are fit for a particular purpose. Like, "This truck will tow your trailer."

The text of the Code says:

"Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose."

So, where does this fall apart? The portion that says "unless excluded or modified under the next section." The UCC says that sellers can disclaim warranties as long as they do so conspicuously and they can disclaim the warranty of fitness for a particular purpose so long as they do so conspicuously and in writing. In other words, the salesperson can tell you anything verbally – and then disclaim everything in the written purchase documents. And guess what? They almost always do. Most auto sellers I have dealt with in Michigan have a blanket disclaimer which absolves the seller of responsibility for anything said by the salesperson while negotiating the sale – including specific promises made about what the vehicle can and cannot do.

What can you – the buyer – do if faced with this situation? In other words, you tell the salesperson something specific about your needs. "I need this truck to be able to pull my boat and trailer which weighs [X] pounds."

If the salesperson promises that the truck you are looking at will pull that boat and trailer, ask to have the language added to the purchase papers: "This truck will be adequate to pull buyer's trailer and boat [description] as described to salesperson." After all, the disclaimer suggests that this is a situation they are anticipating (referring to "a separate written document").

The seller may refuse to add the language but it can't hurt to ask. If the seller refuses, ask yourself if you still want to buy from these people. But it should make you wonder: If they were telling the truth, why wouldn't they let you incorporate the idea into the purchase agreement?

It very well could be that you will have to go car shopping with the understanding that your dealership will be of little or no help to you on this issue. Ask which vehicle they recommend – keeping in mind that the recommendation is not in any way enforceable – and then ask to see the Owner's Manual or other literature which speaks to your requirements. Sticking to the example above, find the towing capacity listed by the manufacturer and see how it stacks up against your needs. Just keep in mind that if the vehicle does not do the trick, you will probably have no recourse against the seller (They just sold it to you – they didn't promise it would do anything!) Your remedy will lie with the manufacturer only. And you will be holding up the Owner's Manual or literature to show what you believed the vehicle could do for you – and why you have a right of recovery when the vehicle failed.

I need to point out that manufacturers also love to disclaim things. Look at the fine print at the bottoms of the pages with the vehicle specifications. Don't be surprised if there is an asterisk denoting, "All facts and figures on this page are for informational purposes only and cannot be relied upon by the consumer. For example, the GMC 2014 Trailering Guide closes with, "We reserve the right, however, to make changes at any time and without notice, in prices, colors, materials, equipment, specifications . . . . Information may have been updated since the time of publication." What is their advice to you, in case you are concerned about the accuracy of the Trailering Guide? "Please check with your GMC sales professional." And, as we have noted, nothing they tell you can be relied upon. Funny how that works.

Your action will be against the manufacturer and you will probably argue that you are entitled to a refund under the Magnuson Moss Warranty Act. But that will hinge on whether the manufacturer simply made "changes" to their "materials, equipment, [or] specifications" somewhere along the way. And yes, I have represented people who bought vehicles after being told by the dealer the truck would pull a particular trailer, the literature said it would, and when it wouldn't – everyone blamed everyone else.

Follow me on Twitter: @stevelehto

Steve Lehto has been practicing law for 23 years, specializing in consumer protection and Michigan lemon law. He wrote The Lemon Law Bible. He also wrote Chrysler's Turbine Car: The Rise and Fall of Detroit's Coolest Creation and The Great American Jet Pack: The Quest for the Ultimate Individual Lift Device.

This website may supply general information about the law but it is for informational purposes only. This does not create an attorney-client relationship and is not meant to constitute legal advice, so the good news is we're not billing you by the hour for reading this. The bad news is that you shouldn't act upon any of the information without consulting a qualified professional attorney who will, probably, bill you by the hour.

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