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South
Carolina Lemon Law Statutes
Title 56, Chapter 28
SECTION 56-28-10. Definitions.
As used in this chapter:
- "Consumer" means the purchaser or lessor, other
than for purposes of resale, of a motor vehicle normally used
for personal, family, or household purposes and subject to the
manufacturer's express warranty, and any other person entitled
by the warranty to enforce the obligations of the warranty.
- "Manufacturer" means any person, resident, or nonresident,
who manufactures or assembles or imports or distributes new motor
vehicles which are to be sold in the State.
- "Manufacturer's express warranty" or "warranty" means
the written warranty, so labeled, of the manufacturer of a new
motor vehicle, including any terms or conditions precedent to
the enforcement of obligations under that warranty.
- "Motor vehicle" means a private passenger motor
vehicle, as classified by Section 56-3-630, but excluding the
living portion of recreational vehicles and off-road vehicles,
which is sold and registered in this State.
- A "new motor vehicle" means a private passenger
motor vehicle which has been sold to a new motor vehicle dealer
by a manufacturer and which has not been used for other than
demonstration purposes and on which the original title has not
been issued from the new motor vehicle dealer.
- "Nonconformity" means a defect or condition that
substantially impairs the use, value, or safety of a motor vehicle,
but does not include a defect or condition that results from
an accident, modification, or alteration of the motor vehicle
by persons other than the manufacturer or its authorized service
agent.
SECTION 56-28-20. Manufacturers to provide annual written
summaries of certain motor vehicles; forms; records to be made
available; penalties.
Every manufacturer, in a format and a form that must be mailed
annually to each manufacturer approved by the Administrator of
the Department of Consumer Affairs, shall provide a written summary
of all motor vehicles repurchased or replaced under this chapter
no less than once each calendar year. In addition, every manufacturer
shall make available any paperwork, reports, or other information
regarding vehicles subject to this chapter upon request by the
administrator. Failure to supply either the written summaries
of repurchased vehicles or respond to reasonable requests for
information by the administrator subjects the manufacturer to
an administrative penalty not to exceed one thousand dollars
for each violation which the administrator in his discretion
may impose.
SECTION 56-28-30. Nonconformity with express warranties;
notice required; repairs required.
If a new motor vehicle does not conform to all applicable express
warranties within the first twelve months of purchase or the
first twelve thousand miles of operation, whichever occurs first,
and the consumer reports the nonconformity to the manufacturer
or its agent during the term of the express warranties, the manufacturer,
or its agent, shall make those repairs as are necessary to conform
the vehicle to the express warranties at no cost to the consumer,
notwithstanding the fact that the repairs are made after the
expiration of the term.
SECTION 56-28-40. Replacement of motor vehicle; refund
of purchase price.
If, within the term specified in Section 56-28-30, the manufacturer,
through its agents or authorized dealer, is unable to conform
the motor vehicle to any applicable express warranty by repairing
or correcting any defect or condition which substantially impairs
the use, market value, or safety of the motor vehicle to the
consumer after a reasonable number of attempts, the manufacturer
shall replace the motor vehicle with a comparable motor vehicle,
or at its option, accept return of the vehicle from the consumer
and refund to the consumer the full purchase price as delivered
including applicable finance charges, sales taxes, license fees,
registration fees, and any other similar governmental charges,
less a reasonable allowance for the consumer's use of the vehicle.
Refunds must be made to the consumer and lienholder, if any,
as their interest may appear on the record of ownership kept
by the Division of Motor Vehicles. A reasonable allowance for
use must be that amount directly attributable to use by the consumer
before his first report of the nonconformity to the manufacturer,
agent, or dealer, and must be calculated by multiplying the full
purchase price of the vehicle by a fraction having as its denominator
one hundred twenty thousand and having as its numerator the number
of miles that the vehicle traveled before the first report of
nonconformity. The consumer is not entitled to a refund or replacement
if:
- the nonconformity does not substantially impair the motor
vehicle's use, market value, or safety;
- the nonconformity is the result of abuse, neglect, or modification
or alteration of the motor vehicle by the consumer.
SECTION 56-28-50. Presumption of attempts to conform;
information to be provided to consumers; obligations of manufacturer;
costs and attorney's fees; notice requirements.
- It is presumed that a reasonable number of attempts have
been undertaken to conform a motor vehicle to the applicable
express warranties if:
- the same nonconformity has been subject to repair three or
more times by the manufacturer, or its agent, within the express
warranty term, but the nonconformity continues to exist; or
- the vehicle is out of service by reason of repair for a cumulative
total of thirty or more calendar days during the express warranty.
The term of an express warranty, and the twenty-day period must
be extended by any period of time during which repair services
are not available to the consumer because of a war, invasion,
strike, fire, flood, or other natural disaster.
- The manufacturer must provide information regarding consumer
complaint remedies with each new motor vehicle. It is the responsibility
of the consumer, or his representative, before availing himself
of the provisions of this chapter, to give written notification
to the manufacturer of the need for the repair of the nonconformity,
in order to allow the manufacturer a final opportunity to cure
the alleged defect if the manufacturer has clearly and prominently
informed the consumer of the requirement of written notification
to the manufacturer at the time of sale. The manufacturer, within
ten business days, must notify the consumer of a reasonably accessible
repair facility of a franchised new vehicle dealer to conform
the new vehicle to the express warranty. After delivery of the
new vehicle to an authorized repair facility by the consumer,
the manufacturer must attempt immediately to repair the vehicle
within a period not to exceed ten business days in order to conform
the new motor vehicle to the express warranty. If the manufacturer
is unable to repair properly the vehicle within the final ten-business-day
period, the manufacturer must replace the vehicle with an identical
or reasonably equivalent vehicle or refund the purchase price
subject to the provisions of Section 56-28-40.
- Upon notification from the consumer that the new 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 as enumerated in Section
56-28-60. However, if prior notice by the manufacturer of an
informal dispute settlement procedure has been given, no further
notice is required.
- Any consumer who finally prevails in any action brought under
this chapter, may be allowed by the court to recover as part
of the judgment a sum equal to the aggregate amount of cost and
expenses (including attorney's fees based on actual time expended)
and other such costs which are directly attributable to the nonconformity
of the motor vehicle determined by the court to have been reasonably
incurred by the plaintiff for or in connection with the commencement
and prosecution of such action, unless the court in its discretion
determines that such an award of attorney's fees would be inappropriate.
- All written notifications required by this section shall
be sent by registered, certified, or express mail.
SECTION 56-28-60. Informal dispute settlement procedures.
If a manufacturer has established an informal dispute settlement
procedure which substantially complies with Title 16 of the Code
of Federal Regulations, Part 703, or if the manufacturer participates
in a consumer-industry appeals, arbitration, or mediation panel
or board, whose decisions are binding on the manufacturer, the
provisions of Section 56-28-40 concerning refunds or replacement
do not apply to any consumer who has not first resorted to those
procedures or to the alternate procedure provided in Section
56-28-90.
SECTION 56-28-70. Limitation of actions.
Any action brought under this chapter must be commenced within
three years following the date of original delivery of the motor
vehicle to the consumer.
SECTION 56-28-80. Construction of chapter; reimbursement
from dealer prohibited; exception.
Nothing in this chapter may be construed as imposing any liability
on a motor vehicle dealer or creating a cause of action by a
consumer against a motor vehicle dealer under Section 56-28-40.
The manufacturer shall not charge back or require reimbursement
by the dealer for any costs, including, but not limited to, any
refunds or vehicle replacements incurred by the manufacturer
arising out of this chapter in the absence of evidence that the
related repairs had been carried out by the dealer in a manner
substantially inconsistent with the manufacturer's published
instructions.
SECTION 56-28-90. State arbitration board may be established.
The Administrator of the Department of Consumer Affairs may establish
by regulation a state arbitration board consisting of five members
appointed by him to serve at his pleasure. The board shall review
matters involving manufacturers that have not created an informal
dispute settlement procedure that substantially complies with
Title 16 of the Code of Federal Regulations, Part 703. The cost
of the arbitration board must be borne by the manufacturer of
the vehicle purchased or leased by the consumer.
SECTION 56-28-100. Repurchased vehicles not to be resold;
exceptions.
Any vehicle required to be repurchased by a manufacturer under
this chapter or any other provision of law relating to motor
vehicle warranties may not be resold, reassigned, or retransferred,
either at wholesale or retail in this State, unless:
- The manufacturer notifies the Administrator of the Department
of Consumer Affairs within thirty calendar days, in writing,
of the vehicle identification number of that motor vehicle, the
reason that the vehicle was repurchased, and provides a statement
that all necessary repairs and adjustments have been made and
that the vehicle meets acceptable operating standards.
- The manufacturer provides a written warranty to the subsequent
retail purchaser of the vehicle covering the vehicle for twelve
months or twelve thousand miles. The warranty must expressly
include any component related to the manufacturer's decision
to repurchase the vehicle.
- The manufacturer shall disclose to any dealer or other wholesale
purchaser of the fact that the vehicle was required to be repurchased
under this chapter or another provision of law relating to motor
vehicle warranties.
SECTION 56-28-110. Notification to subsequent purchasers;
penalties for failure to notify.
Every subsequent purchaser must be notified by the seller of
the fact that the vehicle was required to be repurchased under
the terms of this chapter or another provision of law relating
to motor vehicle warranties. Failure to notify properly any purchaser
of the requirements of this section subjects the seller to an
administrative penalty to be imposed by the administrator up
to a maximum of five hundred dollars for each vehicle.
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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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