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Mississippi
Lemon Law Statutes
Motor Vehicle Warranty Enforcement Act
Sections 63-17-151 through 63-17-165
SEC. 63-17-151. Short title.
Sections 63-17-151 et seq. shall be known and may be cited as
the "Motor Vehicle Warranty Enforcement Act".
SEC. 63-17-153. Legislative findings and declaration of
purpose.
The Legislature recognizes that a motor vehicle is a major consumer
purchase and that a defective motor vehicle creates a hardship
for the consumer. The Legislature further recognizes that a duly
franchised motor vehicle dealer is an agent of the manufacturer.
It is the intent of the Legislature that a good faith motor vehicle
warranty complaint by a consumer should be resolved by the manufacturer,
or its agent, within a specified period of time. It is further
the intent of the Legislature to provide the statutory procedures
whereby a consumer may receive a replacement motor vehicle, or
a full refund, for a motor vehicle which cannot be brought into
conformity with the express warranty issued by the manufacturer.
However, nothing in Sections 63-17-153 et seq. shall in any way
limit the rights or remedies which are otherwise available to
a consumer under any other law.
SEC. 63-17-155. Definitions.
As used in Sections 63-17-151 et seq. the following terms shall
have the following meanings:
- "Collateral charges" means those additional charges
to a consumer which are not directly attributable to the manufacturer's
suggested retail price label for the motor vehicle. For the purposes
of Sections 63-17-151 et seq. collateral charges shall include,
but not be limited to, dealer preparation charges, undercoating
charges, transportation charges, towing charges, replacement
car rental costs and title charges.
- "Comparable motor vehicle" means an identical or
reasonably equivalent motor vehicle.
- "Consumer" means the purchaser, other than for
purposes of resale, of a motor vehicle, primarily used for personal,
family, or household purposes, and any person to whom such motor
vehicle is transferred for the same purposes during the duration
of an express warranty applicable to such motor vehicle, and
any other person entitled by the terms of such warranty to enforce
the obligations of the warranty.
- "Express warranty" means any written affirmation
of fact or promise made in connection with the sale of a motor
vehicle by a supplier to a consumer which relates to the nature
of the material or workmanship and affirms or promises that such
material or workmanship is defect-free or will meet a specified
level of performance over a specified period of time. For the
purposes of Sections 63-17-151 et seq. express warranties do
not include implied warranties.
- "Manufacturer" means a manufacturer or distributor
as defined in Section 63-17-55.
- "Motor vehicle" means a vehicle propelled by power
other than muscular power which is sold in this state, is operated
over the public streets and highways of this state and is used
as a means of transporting persons or property, but shall not
include vehicles run only upon tracks, off-road vehicles, motorcycles,
mopeds, or parts and components of a motor home which were added
on and/or assembled by the manufacturer of the motor home. "Motor
vehicle" shall include demonstrators or lease-purchase vehicles
as long as a manufacturer's warranty was issued as a condition
of sale.
- "Purchase price" means the price which the consumer
paid to the manufacturer to purchase the motor vehicle in a cash
sale or, if the motor vehicle is purchased in a retail installment
transaction, the cash sale price as defined in Section 63-19-3.
SEC. 63-17-157. Repair of nonconforming vehicle.
For the purposes of Sections 63-17-151 et seq., if a new motor
vehicle does not conform to all applicable express warranties,
and the consumer reports the nonconformity to the manufacturer
or its agent during the term of such express warranties or during
the period of one (1) year following the date of original delivery
of the motor vehicle to the consumer, whichever period expires
earlier, the manufacturer or its agent shall make such repairs
as are necessary to conform the vehicle to such express warranties,
notwithstanding the fact that such repairs are made after the
expiration of such term or such one-year period.
SEC. 63-17-159. Replacement of vehicle or refund of purchase
price where nonconformity cannot be corrected; affirmative defenses;
presumption of reasonable attempts to conform vehicle to warranties;
extension of warranties; notice requirements relating to repair
of nonconformity; civil actions.
- If the manufacturer or its agent cannot conform the motor
vehicle to any applicable express warranty by repairing or correcting
any default or condition which impairs the use, market value,
or safety of the motor vehicle to the consumer after a reasonable
number of attempts, the manufacturer shall give the consumer
the option of having the manufacturer either replace the motor
vehicle with a comparable motor vehicle acceptable to the consumer,
or take title of the vehicle from the consumer and refund to
the consumer the full purchase price, including all reasonably
incurred collateral charges, less a reasonable allowance for
the consumer's use of the vehicle. The subtraction of a reasonable
allowance for use shall apply when either a replacement or refund
of the motor vehicle occurs. A reasonable allowance for use shall
be that sum of money arrived at by multiplying the number of
miles the motor vehicle has been driven by the consumer by Twenty
Cents (20cents) per mile. Refunds shall be made to the consumer
and lienholder of record, if any, as their interests may appear.
- It shall be an affirmative defense to any claim under Sections
63-17-151 et seq. that:
- An alleged nonconformity does not impair the use, market
value or safety of the motor vehicle;
- A nonconformity is the result of abuse, neglect or unauthorized
modifications or alterations of a motor vehicle by a consumer;
- A claim by a consumer was not filed in good faith; or
- Any other affirmative defense allowed by law.
- It shall be presumed that a reasonable number of attempts
have been undertaken to conform a motor vehicle to the applicable
express warranties if within the terms, conditions or limitations
of the express warranty, or during the period of one (1) year
following the date of original delivery of the motor vehicle
to a consumer, whichever expires earlier, either:
- Substantially the same nonconformity has been subject to
repair three (3) or more times by the manufacturer or its agent
and such nonconformity continues to exist; or
- The vehicle is out of service by reason of repair of the
nonconformity by the manufacturer or its agent for a cumulative
total of fifteen (15) or more working days, exclusive of downtime
for routine maintenance as prescribed by the owner's manual,
since the delivery of the vehicle to the consumer. The fifteen-day
period may be extended by any period of time during which repair
services are not available to the consumer because of conditions
beyond the control of the manufacturer or its agent.
- The terms, conditions or limitations of the express warranty,
or the period of one (1) year following the date of original
delivery of the motor vehicle to a consumer, whichever expires
earlier, may be extended if the motor vehicle warranty problem
has been reported but has not been repaired by the manufacturer
or its agent by the expiration of the applicable time period.
- The manufacturer shall provide a list of the manufacturer's
zone or regional service office addresses in the owner's manual
provided with the motor vehicle. It shall be the responsibility
of the consumer or his representative, prior to availing himself
of the provisions of this section, to give written notification
to the manufacturer of the need for the repair of the nonconformity,
in order to allow the manufacturer an opportunity to cure the
alleged defect. The manufacturer shall immediately notify the
consumer of a reasonably accessible repair facility to conform
the vehicle to the express warranty. After delivery of the vehicle
to the designated repair facility by the consumer, the manufacturer
shall have ten (10) working days to conform the motor vehicle
to the express warranty. Upon notification from the consumer
that the vehicle has not been conformed to the express warranty,
the manufacturer shall inform the consumer if an informal dispute
settlement procedure has been established by the manufacturer
in accordance with Section 63-17-163, and provide the consumer
with a copy of the provisions of Sections 63-17-151 et seq. However,
if prior notice by the manufacturer of an informal dispute settlement
procedure has been given, no further notice is required. If the
manufacturer fails to notify the consumer of the availability
of this informal dispute settlement procedure, the requirements
of Section 63-17-163 shall not apply.
- Any action brought under Sections 63-17-151 et seq. shall
be commenced within one (1) year following expiration of the
terms, conditions or limitations of the express warranty, or
within eighteen (18) months following the date of original delivery
of the motor vehicle to a consumer, whichever is earlier, or,
if a consumer resorts to an informal dispute settlement procedure
as provided in Sections 63-17-151 et seq., within ninety (90)
days following the final action of the panel.
- If a consumer finally prevails in any action brought under
Sections 63-17-151 et seq., the court may allow him to recover
as part of the judgment a sum equal to the aggregate amount of
costs and expenses, including attorney's fees based on actual
time expended, determined by the court to have been reasonably
incurred by the plaintiff for or in connection with the commencement
and prosecution of such action.
SEC. 63-17-161. Liability of consumer for bad faith claims.
Any claim by a consumer which is found by the court to have been
filed in bad faith, or solely for the purpose of harassment,
or in complete absence of a justiciable issue of either law or
fact raised by the consumer, shall result in the consumer being
liable for all court costs incurred by the manufacturer or its
agent as a direct result of the bad faith claim.
SEC. 63-17-163. Necessity for resort to informal dispute
settlement procedure.
If a manufacturer has established an informal dispute settlement
procedure which complies in all respects with the provisions
of 16 C.F.R., Part 703, the provisions of Section 67-17-159 concerning
refunds or replacements shall not apply to any consumer who has
not first resorted to such procedure.
SEC. 63-17-165. Remedies for violations.
Any violation of Sections 63-17-151 et seq. shall be subject
to the rights and remedies as provided for by Chapter 24, Title
75, Mississippi Code of 1972.
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The
Magnuson-Moss Warranty Act
The Magnuson-Moss Warranty Act is a Federal Law that protects the buyer of any product which costs more than $25 and comes with an express written warranty.
This law applies to any product that you buy that does not perform as it should.
Your car is a major investment, rationalized by the peace of mind that flows from its expected dependability and safety. Accordingly, you are entitled
to expect an automobile properly constructed and regulated to provide reasonably safe, trouble-free, and dependable transportation – regardless
of the exact make and model you bought. Unfortunately, sometimes these principles do not hold true and defects arise in automobiles. Although one defect
is not actionable, repeated defects are as there exists a generally accepted rule that unsuccessful repair efforts render the warrantor liable. Simply
put, there comes a time when “enough is enough” – when after having to take your car into the shop for repairs an inordinate number
of times and experiencing all of the attendant inconvenience, you are entitled to say, ‘That’s all,’ and revoke, notwithstanding the
seller’s repeated good faith efforts to fix the car. The rationale behind these basic principles is clear: once your faith in the vehicle is shaken,
the vehicle loses its real value to you and becomes an instrument whose integrity is impaired and whose operation is fraught with apprehension. The question
thus becomes when is “enough”?
As you know, enough is never enough from your warrantor’s point of view and you should simply continue to have your defective vehicle repaired – time
and time again. However, you are not required to allow a warrantor to tinker with your vehicle indefinitely in the hope that it may eventually be fixed.
Rather, you are entitled to expect your vehicle to be repaired within a reasonable opportunity. To this end, both the federal Moss Warranty Act, and
the various state “lemon laws,” require repairs to your vehicle be performed within a reasonable opportunity.
Under the Magnuson-Moss Warranty
Act, a warrantor should perform adequate repairs in at least two, and possibly three, attempts to correct a particular defect. Further, the Magnuson-Moss
Warranty Act’s reasonableness requirement applies to your vehicle as a whole rather than to each individual defect
that arises. Although most of the Lemon Laws vary from state to state, each individual law usually require a warrantor to cure a specific defect within
four to five attempts or the automobile as a whole within thirty days. If the warrantor fails to meet this obligation, most of the lemon laws provide
for a full refund or new replacement vehicle. Further, this reasonable number of attempts/reasonable opportunity standard, whether it be that of the
Magnuson-Moss Warranty Act or that of the Lemon Laws, is akin to strict liability – once this threshold has been met, the continued existence of
a defect is irrelevant and you are still entitled to relief.
One of the most important parts of the Magnuson-Moss Warranty Act is its fee shifting
provision. This provision provides that you may recover the attorney fees incurred in the prosecution of your case if you are successful – independent
of how much you actually win. That rational behind this fee shifting provision is to twofold: (1) to ensure you will be able to vindicate your rights
without having to expend large sums on attorney's fees and (2) because automobile manufacturers are able to write off all expenses of defense as a
legitimate business expense, whereas you, the average consumer, obviously does not have that kind of economic staying power. Most of the Lemon Laws contain
similar fee shifting provisions.
You may also derive additional warranty rights from the Uniform Commercial Code; however, the Code does not allow you
in most states to recover your attorney fees and is also not as consumer friendly as the Magnuson-Moss Warranty Act or the various state lemon laws.
The narrative information on Magnuson-Moss, UCC and lemon laws on these pages is provided by Marshall Meyers, attorney.
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Uniform
Commercial Code Summary
The Uniform Commercial Code or UCC has been enacted in all 50 states and some of the territories of the United States. It is the primary source of law
in all contracts dealing with the sale of products. The TARR refers to Tender, Acceptance, Rejection, Revocation and applies to different aspects of
the consumer's "relationship" with the purchased goods.
TENDER -
The tender provisions of the Uniform Commercial Code contained in Section2-601 provide that the buyer is entitled to reject any goods that fail in
any respect to conform to the contract. Unfortunately, new cars are often technically complex and their innermost workings are beyond the understanding
of the average new car buyer. The buyer, therefore, does not know whether the goods are then conforming.
ACCEPTANCE -
The new car buyer accepts the goods believing and expecting that the manufacturer will repair any problem he has with the goods under the warranty.
REJECTION
-
The new car buyer may discover a problem with the vehicle within the first few miles of his purchase. This would allow the new car buyer to reject
the goods. If the new car buyer discovers a defect in the car within a reasonable time to inspect the vehicle, he may reject the vehicle. This period
is not defined. On the one hand, the buyer must be given a reasonable time to inspect and that reasonable time to inspect will be held as an acceptance
of the vehicle. The Courts will decide this reasonable time to inspect based on the knowledge and experience of the buyer, the difficulty in discovering
the defect, and the opportunity to discover the defect.
The following is an example of a case of rejection: Mr. Zabriskie purchase a new 1966 Chevrolet Biscayne. After picking up the car on Friday evening,
while en route to his home 2.5 miles away, and within 7/10ths of a mile from the dealership, the car stalled and stalled again within 15 feet. Thereafter,
the car would only drive in low gear. The buyer rejected the vehicle and stopped payment on his check. The dealer contended that the buyer could not
reject the car because he had driven it around the block and that was his reasonable opportunity to inspect. The New Jersey Court said;
To the layman,
the complicated mechanisms of today's automobile are a complete mystery. To have the automobile inspected by someone with sufficient expertise to disassemble
the vehicle in order the discover latent defects before the contract is signed, is assuredly impossible and highly impractical. Consequently, the first
few miles of driving become even more significant to the excited new car buyer. This is the buyer's first reasonable opportunity to enjoy his new vehicle
to see if it conforms to what it was represented to be and whether he is getting what he bargained for. How long the buyer may drive the new car under
the guise of inspection of new goods is not an issue in the present case because 7/10th of a mile is clearly within the ambit of a reasonable opportunity
to inspect. Zabriskie Chevrolet, Inc. v. Smith, 240 A. 2d 195(1968)
It is suggested that Courts will tend to excuse use by consumers if possible.
REVOCATION -
What happens when the consumer has used the new car for a lengthy period of time? This is the typical lemon car case. The UCC provides that a buyer
may revoke his acceptance of goods whose non-conformity substantially impairs the value of the goods to him when he has accepted the goods without
discovery of a non-conformity because it was difficult to discover or if he was assured that non-conformities would be repaired. Of course, the average
new car buyer does not learn of the nonconformity until hundreds of thousands of miles later. And because quality is job one, and manufacturers are
competing on the basis of their warranties, the consumer always is assured that any noncomformities he does discover will be remedied.
What is a noncomformity substantially impairing the value of the vehicle?
- A noncomformity may include a number of relatively minor defects whose cumulative total adds up to a substantial impairment. This is the "Shake
Faith" Doctrine first stated in the Zabrisikie case. "For a majority of people the purchase of a new car is a major investment, rationalized
by the peace of mind that flows from its dependability and safety. Once their faith is shaken, the vehicle loses not only its real value in their eyes,
but becomes an instrument whose integrity is substantially impaired and whose operation is fraught with apprehension".
- A substantial noncomformity may include a failure or refusal to repair the goods under the warranty. In Durfee V. Rod Baxter Imports, the Minnesota
Court held that the Saab owner that was plagued by a series of of annoying minor defects and stalling, which were never repaired after a number of attempts,
could revoke, "if repairs are not successfully undertaken within a reasonable time", the consumer may elect to revoke.
- Substantial Non Conformity and Lemon Laws often define what may be considered a substantial impairment. These definitions have been successfully used
to flesh out the substantial impairment in the UCC.
Additional narrative information on Magnusson-Moss, UCC and lemon laws on these pages is provided by T. Michael Flinn, attorney.
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