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It is fairly common these days for large amounts of computer and networking
electronic equipment to be available through auctions and in surplus where
the seller has no time or expertise required to test the equipment. Many
sellers try to insulate themselves from any responsibility by selling the
equipment "as is with no warranty". The seller then tries to push up the
price as high as possible by pointing out how expensive the equipment is
when new. What are the seller's obligations when selling product in
"as-is" condition with no warranty included, if the equipment ends up being
dead or clearly defective on arrival?
Ignoring for the moment the specific language on the buyer's purchase order,
imagine that the only other contract between buyer and seller is verbal or
based on e-mail exchanges, and the seller's representations are as follows:
- The equipment worked when it was de-installed
- No warranties, sold as-is
In general, does the law interpret "no warranty" to mean the period after
receipt of the product, or does "no warranty" mean there is no obligation
for the equipment to work when it is received by the buyer?
I understand clearly that if the seller specifically discloses in advance
that equipment is defective, and then conditions this information with a
sold "as-is" clause, that the buyer understands what they are getting and is
obligated to fulfill the contract and accept defective goods. If on the
other hand the seller does not specifically disclose that items are
defective (whether for reasons of ignorance or deliberate deception), is
there any obligation that the items at least function on receipt and not be
dead *on arrival*?
If the buyer is in California, does this change anything?
--
Will
westes AT earthbroadcast.com
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It is fairly common these days for large amounts of computer and networking
electronic equipment to be available through auctions and in surplus where
the seller has no time or expertise required to test the equipment. Many
sellers try to insulate themselves from any responsibility by selling the
equipment "as is with no warranty".
It should matter a LOT what the description of the item to be sold
is. For example, your expectations should be much different with these
descriptions attached to the same photograph of the same equipment:
"Cisco 2500 Router"
"5 pounds of assorted circuit boards manufactured by Cisco"
"5 pounds of electronic junk (see photo)"
"Cisco 2500 Router recovered from bottom of Atlantic Ocean after ship explosion"
"Cisco 2500 Router pulled from Enron network when it bankrupt"
"Cisco 2500 Router, power supply smokes and flames when plugged in and the rest untested"
"Box of spare parts from Cisco 2500 Router"
On some of these descriptions I have a valid complaint if the power
supply is missing. On others I don't (assuming the photo did not
show a power supply), as it's not described as a complete router.
The seller then tries to push up the
price as high as possible by pointing out how expensive the equipment is
when new.
This is not a problem unless the seller tries to make you think
that what he's selling *IS* new.
What are the seller's obligations when selling product in
"as-is" condition with no warranty included, if the equipment ends up being
dead or clearly defective on arrival?
It seems to me that if the seller says "untested", "non-working",
or "unknown condition", sells it as-is and says "no warranty", he
should be off the hook for a DOA unit. (He may not be off the hook
for a unit with missing parts, though, if it was described as a
complete unit). I have even seen used cars for sale where the
brakes are guaranteed NON-working (and if they are not, seller will
break them) and the engine is guaranteed missing (see picture of
car with hood up and big empty hole where engine should be).
Yes, I've actually bought stuff described as "powers up OK, passes
self-test, otherwise untested". I figure if, in the absence of
obvious shipping damage which is another issue, if it catches fire
when I plug it in, I'm due a refund, but if it passes self-test and
then doesn't do anything useful, I'm stuck. Sometimes I get stuck.
I've overall had pretty good luck, though.
Then again, I may get this stuff cheap enough that if I buy 5 of
them and 2 work, I'm way ahead even over buying them used but
carrying a 7-day warranty against DOA. I might even be able to
make some good money buying units of questionable condition, testing
them, not doing any repairs beyond replacing missing parts and
swapping parts between units to make working ones, and re-selling
ones that work with a non-DOA warranty for enough profit to make
up for occasionally having to ship another one. The problem is, does
this adequately compensate for my time?
Ignoring for the moment the specific language on the buyer's purchase order,
imagine that the only other contract between buyer and seller is verbal or
based on e-mail exchanges, and the seller's representations are as follows:
- The equipment worked when it was de-installed
- No warranties, sold as-is
In general, does the law interpret "no warranty" to mean the period after
receipt of the product, or does "no warranty" mean there is no obligation
for the equipment to work when it is received by the buyer?
Remember, the definition of "work" depends a lot on the description
of what was sold. It's hard to claim (with justification) that a
"5 pounds of electronic junk" "doesn't work". It's much easier to
claim (and demonstrate) that a complete router doesn't work.
I understand clearly that if the seller specifically discloses in advance
that equipment is defective, and then conditions this information with a
sold "as-is" clause, that the buyer understands what they are getting and is
obligated to fulfill the contract and accept defective goods.
I believe the same applies if the seller discloses that the condition
is *UNKNOWN*. However, if you can demonstrate that he sold the unit 5
times to people and they demanded that he take it back each time, he can't
continue to claim that the condition is unknown for that unit.
If on the
other hand the seller does not specifically disclose that items are
defective (whether for reasons of ignorance or deliberate deception), is
there any obligation that the items at least function on receipt and not be
dead *on arrival*?
I'm not a lawyer, so I didn't answer some of your specific questions.
I do think, though, that the description of what was being sold plays
a large part in many claims of DOA merchandise.
Gordon L. Burditt
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In general, you are shifting the discussion to an economic discussion about
the pros and cons of buying defective or partially defective equipment. I
want the focus of the discussion to be about a legal issue: the seller's
legal obligations in an "as-is" sale.
You are right it matters how the seller describes the item. In this case
the description is that the equipment worked when de-installed. That's
all. No promises that it still works, but a strong implication to that
effect....
--
Will
westes AT earthbroadcast.com
It is fairly common these days for large amounts of computer and
networking
electronic equipment to be available through auctions and in surplus
where
the seller has no time or expertise required to test the equipment.
Many
sellers try to insulate themselves from any responsibility by selling the
equipment "as is with no warranty".
It should matter a LOT what the description of the item to be sold
is. For example, your expectations should be much different with these
descriptions attached to the same photograph of the same equipment:
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CHANGE USERNAME TO westes wrote:
It is fairly common these days for large amounts of computer and networking
electronic equipment to be available through auctions and in surplus where
the seller has no time or expertise required to test the equipment. Many
sellers try to insulate themselves from any responsibility by selling the
equipment "as is with no warranty". The seller then tries to push up the
price as high as possible by pointing out how expensive the equipment is
when new. What are the seller's obligations when selling product in
"as-is" condition with no warranty included, if the equipment ends up being
dead or clearly defective on arrival?
Ignoring for the moment the specific language on the buyer's purchase order,
imagine that the only other contract between buyer and seller is verbal or
based on e-mail exchanges, and the seller's representations are as follows:
- The equipment worked when it was de-installed
- No warranties, sold as-is
In general, does the law interpret "no warranty" to mean the period after
receipt of the product, or does "no warranty" mean there is no obligation
for the equipment to work when it is received by the buyer?
I understand clearly that if the seller specifically discloses in advance
that equipment is defective, and then conditions this information with a
sold "as-is" clause, that the buyer understands what they are getting and is
obligated to fulfill the contract and accept defective goods. If on the
other hand the seller does not specifically disclose that items are
defective (whether for reasons of ignorance or deliberate deception), is
there any obligation that the items at least function on receipt and not be
dead *on arrival*?
If the buyer is in California, does this change anything?
Where's the seller? In MA it's illegal sell merchandise "as-is"
In general, "No warranties, sold as-is" means exactly what it says.
/dan
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The seller is in MA. :) Can you point me to some link(s) that discuss the
limitations in MA?
--
Will
westes AT earthbroadcast.com
Where's the seller? In MA it's illegal sell merchandise "as-is"
In general, "No warranties, sold as-is" means exactly what it says.
/dan
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Daniel Ganek <ganek@comcast.net> wrote in
news:c287jt$gja$1@pcls4.std.com:
Where's the seller? In MA it's illegal sell merchandise "as-is"
Do people ever engage in private used auto sales in MA?
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"CHANGE USERNAME TO westes" <DELETE_westes@earthbroadcast.com> wrote in
news:Gdidndi9CZNd5trd4p2dnA@giganews.com:
- The equipment worked when it was de-installed
- No warranties, sold as-is
In general, does the law interpret "no warranty" to mean the period
after receipt of the product, or does "no warranty" mean there is no
obligation for the equipment to work when it is received by the buyer?
No warranties probably means no express warranties, and probably attempts
to mean no implied warranties (but may not necessarily be successful).
However, as-is should, by the state's UCC, mean no implied warranties of
fitness for purpose or merchantability.
I understand clearly that if the seller specifically discloses in
advance that equipment is defective, and then conditions this
information with a sold "as-is" clause, that the buyer understands
what they are getting and is obligated to fulfill the contract and
accept defective goods. If on the other hand the seller does not
specifically disclose that items are defective (whether for reasons of
ignorance or deliberate deception), is there any obligation that the
items at least function on receipt and not be dead *on arrival*?
The remedy would be breach of contract, instead of breach of warranty.
The contract wouldn't've contemplated selling a product that did not
function, so the seller didn't perform. Buyer rejects shipment, seller
must ship something that works, or buyer buys the product elsewhere and
gets the difference between the market value of the product and the
contracted price.
If the buyer is in California, does this change anything?
I don't know of any CA specifics.
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It is fairly common these days for large amounts of computer and
networking
electronic equipment to be available through auctions and in surplus where
the seller has no time or expertise required to test the equipment...
As a veteran of many such sales (on both sides of the counter), I can give
you a general rule of thumb: if the vendor says that the equipment is
untested, it probably WAS tested and didn't work.
An honest vendor will tell you if it didn't pass testing. If it really was
working when pulled, most honest vendors will give at least a 30 day or "not
DOA" warranty.
--
"This item was once brand new!"
John Goulden
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Najena wrote:
Daniel Ganek <ganek@comcast.net> wrote in
news:c287jt$gja$1@pcls4.std.com:
Do people ever engage in private used auto sales in MA?
Yes, but the car MUST pass inspection within 7 days of the sale.
If repairs are required and they cost more than 10% of the
sale price then the buyer can return the car and get his money back.
/dan
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CHANGE USERNAME TO westes wrote:
The seller is in MA. :) Can you point me to some link(s) that discuss the
limitations in MA?
http://www.state.ma.us/legis/laws/mgl/gl-93-toc.htm
MA also has very strong laws concerning Implied Warranties of Merchantability.
I believe that's also in CH 93.
/dan
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Where in this did you find a clear statement that As-Is sales are not
allowed?
Is it possible that these laws would only pertain if the buyer was in MA as
well?
--
Will
westes AT earthbroadcast.com
CHANGE USERNAME TO westes wrote:
http://www.state.ma.us/legis/laws/mgl/gl-93-toc.htm
MA also has very strong laws concerning Implied Warranties of
Merchantability.
I believe that's also in CH 93.
/dan
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CHANGE USERNAME TO westes wrote:
Where in this did you find a clear statement that As-Is sales are not
allowed?
Is it possible that these laws would only pertain if the buyer was in MA as
well?
Oops, It chap 106 section 2-314. Although it does give the seller
some wiggle room. He can sell it "as-is" if he lets you examine it
or you refuse to examine it (2-316 para 3a).
Sorry, I'm taking Circuit City to Small Claims Court using Chap 93
and I got confused.
/dan
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Chapter 106, section 2-316 clearly states that the implied warranty can be
excluded by including the words "as-is" (or like words) in the contract.
--
Will
westes AT earthbroadcast.com
CHANGE USERNAME TO westes wrote:
Oops, It chap 106 section 2-314. Although it does give the seller
some wiggle room. He can sell it "as-is" if he lets you examine it
or you refuse to examine it (2-316 para 3a).
Sorry, I'm taking Circuit City to Small Claims Court using Chap 93
and I got confused.
/dan
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