ohiolandlord
05-05-2006, 02:37 PM
Defenses the Vehicle Manufacturer May Use Against You
The Ohio Supreme Court has written that despite its pucker-inducing remedy, the Lemon Law does have protections for manufacturers. The law does not create remedies for buyers who have soured on their new vehicle for cosmetic or other trivial reasons.
A. Abuse, Neglect or Unauthorized Modification
A consumer cannot recover under the Lemon Law if the nonconformity is "the result of abuse, neglect, or the unauthorized modification or alteration of a motor vehicle by anyone other than the manufacturer, its agent, or its authorized dealer." This is only fair. If you have put new mufflers on your car in the quest for greater horsepower, you cannot be heard to complain under the Lemon Law that there is a problem with these new mufflers.
B. Defect Not a Nonconformity
The vehicle's problem must substantially impair the use, safety, or value of the motor vehicle. This requirement of substantiality is important. This gets back to the discussions above about minor, trivial complaints from picky consumers or persons looking to get out of a deal. When the manufacturer defends the case against you, their lawyer is going to try to paint you as a hypersensitive crybaby to the court. Be ready for it.
C. Other Settlement Agreements
If you enter into a settlement agreement with the vehicle manufacturer for less than your full rights and remedies, then this will be a defense to a lawsuit filed later under Ohio's Lemon Law. In a case before Ohio's Twelfth Appellate District Court, the consumer had struck a deal with Ford to replace his 1993 truck with a 1996 truck because of problems he was having with it. The consumer and Ford also agreed that since the consumer was getting a 1996 truck, the consumer would pay the extra increase in price on that model since 1993. The consumer accepted this deal, but wrote "under protest" next to his signature on the settlement agreement. A release is a contract, subject to the requirements for a valid contract. A valid contract requires a bargain in which there is a manifestation that the parties ***ent to the exchange and a consideration. There are three elements to a contract in the state of Ohio. These are, offer, acceptance and consideration. Offer and acceptance are normally shown by an offer from one party followed by an acceptance by the other party. Consideration is a bargained for exchange of a promise for a return promise or a promise for a performance. Consideration is "bargained for" if it is sought by the person making the promise in exchange for it and is given by the person receiving the promise in exchange for that promise. Generally, consideration consists of either a benefit to the person making the promise or a detriment to the person receiving it. A benefit may consist of some right, interest or profit accruing the promissor, while a detriment to the person receiving the promise may be some forbearance, loss, or the creation, destruction or modification of a legal relation. The benefit or detriment does not need to be great; it need only be something regarded by the person making the promise as beneficial enough to induce his promise.
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http://www.ohiolandlordtenant.com/lemon_law_defenses.html
The Ohio Supreme Court has written that despite its pucker-inducing remedy, the Lemon Law does have protections for manufacturers. The law does not create remedies for buyers who have soured on their new vehicle for cosmetic or other trivial reasons.
A. Abuse, Neglect or Unauthorized Modification
A consumer cannot recover under the Lemon Law if the nonconformity is "the result of abuse, neglect, or the unauthorized modification or alteration of a motor vehicle by anyone other than the manufacturer, its agent, or its authorized dealer." This is only fair. If you have put new mufflers on your car in the quest for greater horsepower, you cannot be heard to complain under the Lemon Law that there is a problem with these new mufflers.
B. Defect Not a Nonconformity
The vehicle's problem must substantially impair the use, safety, or value of the motor vehicle. This requirement of substantiality is important. This gets back to the discussions above about minor, trivial complaints from picky consumers or persons looking to get out of a deal. When the manufacturer defends the case against you, their lawyer is going to try to paint you as a hypersensitive crybaby to the court. Be ready for it.
C. Other Settlement Agreements
If you enter into a settlement agreement with the vehicle manufacturer for less than your full rights and remedies, then this will be a defense to a lawsuit filed later under Ohio's Lemon Law. In a case before Ohio's Twelfth Appellate District Court, the consumer had struck a deal with Ford to replace his 1993 truck with a 1996 truck because of problems he was having with it. The consumer and Ford also agreed that since the consumer was getting a 1996 truck, the consumer would pay the extra increase in price on that model since 1993. The consumer accepted this deal, but wrote "under protest" next to his signature on the settlement agreement. A release is a contract, subject to the requirements for a valid contract. A valid contract requires a bargain in which there is a manifestation that the parties ***ent to the exchange and a consideration. There are three elements to a contract in the state of Ohio. These are, offer, acceptance and consideration. Offer and acceptance are normally shown by an offer from one party followed by an acceptance by the other party. Consideration is a bargained for exchange of a promise for a return promise or a promise for a performance. Consideration is "bargained for" if it is sought by the person making the promise in exchange for it and is given by the person receiving the promise in exchange for that promise. Generally, consideration consists of either a benefit to the person making the promise or a detriment to the person receiving it. A benefit may consist of some right, interest or profit accruing the promissor, while a detriment to the person receiving the promise may be some forbearance, loss, or the creation, destruction or modification of a legal relation. The benefit or detriment does not need to be great; it need only be something regarded by the person making the promise as beneficial enough to induce his promise.
continue article
http://www.ohiolandlordtenant.com/lemon_law_defenses.html