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What is a Warranty Worth?

28th November 1952
Page 41
Page 41, 28th November 1952 — What is a Warranty Worth?
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Which of the following most accurately describes the problem?

Purchasers Seeking to Rely on Warranty Must .Take Immediate Steps to Minimize Damage if a Vehicle Becomes Defective

CASES constantly come before the courts arising out of warranties given at the time of the sale of used vehicles, when the buyer alleges that breaches of such warranties have arisen and asks for damages. It is commonplace for garages and dealers to issue some sort of guarantee with vehicles sold by them; also it is an everyday expression amongst laymen to usc the word " guarantee " in a rather different sense, when they are really warranting something. Thus people frequently say, " I guarantee this to be a genuine so-and-so," and sometimes it seems that warranties and guarantees become so mixed that it is difficult to distinguish them.

This, of course, is not so to a lawyer. A warranty and a guarantee—when the words are used in their correct sense—are quite distinct. However, it does sometimes happen that the facts of a dispute may centre around both, and their. disentangling may involve interesting points of law. A recent county court case—Lindley v. Enoch—was paradoxical in that it was the seller of a car who sought to rely on the guarantee and the buyer who principally based his case on a breach of warranty.

The plaintiff had purchased a car from the defendants in March, 1951, which had been advertised in a local newspaper, along with others, as having a reconditioned engine and there were the words: "All the above cars having passed through our: workshops are offered for sale with our usual three months' guarantee." After taking• delivery, certain minor defects developed in the petrol pump and battery, and these were put right by the defendants under the guarantee. At about the same time, the plaintiff noticed a certain roughness and noise in the engine about which he complained, but at that stage nothing was done.

Independent Inspection In April—over a month after the sale—the car was inspected by an independent motor engineer, who advised that the engine was not as it should be and the defendants agreed—again under the guarantee—to take it down and make good certain defects and carry out adjustments. This they did, and the car was in their workshops for a period of 10-14 days. From time to time the independent engineer, on behalf of the plaintiff, called in to inspect the progress of the work and expressed himself as satisfied with what he saw, and it was after a final road test by him that he notified the plaintiff that the car was ready to collect. On May 5, accordingly, the plaintiff drove the car away from the garage after being assured that it was now all right but that he should " take it easy" for a while.

Less than two miles from the garage, and long before he reached home, another and a worse noise suddenly developed, but instead of returning with the car at once to the defendants' premises the plaintiff not Merely drove home that night, but also continued to use the car for nearly another fortnight before taking it to another garage where it was completely stripped. Extensive damage was found.

At the subsequent trial it was, of course, urged that much—if not all—of this damage was directly attribut

able to its continued use after this latest noise started, but there was also evidence that certain defects were found which could be traced back to the reconditioning. The plaintiff promptly had the car put into a completely reconditioned state and sued the defendants for damages to the extent of his outlay, which came to nearly £120.

All this while—or at least until after the car was stripped for examination on this last occasion — the defendants were in ignorance that anything was amiss with the car, and when they discovered the situation they complained bitterly that they had not been allowed to implement their guarantee. , When the case came to trial, the plaintiff relied on the original warranty that the engine was reconditioned, and claimed that the evidence showed that this had not been properly carried out, and that the defendants must be liable to the amount necessary to put the engine into a properly reconditioned state.

The judge found as a 'fact that the original reconditioning was not up to standard and that:therefore the defendants' warranty contained in their advertisement (as distinct from their guarantee) had been broken.

Purchaser's Duty However, another interesting point that emerged from the facts was the duty of the plaintiff on discovering that there was still trouble in the engine on the last occasion. The plaintiff would not have been able to

rely on the guarantee which, indeed, he did not seriously seek to do at the trial—unless he had played his part by at once taking the car back to the defendants' garage and invoking the guarantee at the earliest possible moment. But although his behaviour would be material in the matter of the guarantee, it was no less material when assessing damages for the breach of warranty.

It is a well-established rule of law that a victim of someone else's action or breach of contract must do all in his power to minimize the damage suffered. • It is not in conformity with this rule to sit idly back if one has been injured, for example, and make no effort to resume work as soon as one is well enough. It is equally a breach of the rule to drive a vehicle for several days after a mysterious "knock " has appeared when the danger of further damage multiplying to the engine must be obvious to any driver.

The judge accordingly held that, although the plaintiff was entitled to damages, he had not mitigated the damage as he should have done, and they would be reduced by the estimated value of the damage his own actions might have caused.

The case well illustrates two things: (a) the essential difference between a warranty and a guarantee, and that it is no use a dealer giving a generous and comprehensive guarantee if the original warranty which went with the sale of the vehicle were unfulfilled. and (b) that anyone seeking to rely on either a warranty or guarantee in such circumstances must take immediate steps to minimize any damage, whether that means notifying the guarantor at once if the guarantee be involved, or immediate consultation of another engineer if the warranty be broken.


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