“As is” and certain other non-reliance or purported exculpatory clauses under the common law, have not provided a defense against fraud in Illinois courts for decades. This is particularly important where, as in most automobile sales transactions, one party is unsophisticated, and the other party, like a used car dealer, is an expert in the field. As Zimmerman v. Northfield Real Estate, Inc., 156 Ill. App. 3d 154, 164 (1st Dist. 1986), found: “Exculpatory clauses are not favored and are strictly construed and must have clear, explicit and unequivocal language showing that it was the intent of the parties.” And the Consumer Fraud Act contains an anti-waiver provision which makes a sold “as is” clause defense to used car auto fraud matter a non-starter for statutory fraud, even if the common law already did not do that.
The Consumer Fraud Act, like other analogous Illinois statutes, such as the Real-Estate Disclosure Act, has an anti-waiver provision which preludes use of an “as is” clause or the no warranty clause present here to defeat a claim for misrepresentation or knowingly failing to disclose material defects. As the Court in Bauer v. Giannis, 359 Ill.App.3d 897, 906 (2d Dist. 2005) holds:
The policy prohibiting waiver of the obligations under the Act applies with equal force here. By insisting on the “as is” clause, which provides that plaintiff accepted the property without any warranty or representation, defendants in effect sought to obtain a waiver of their obligation under the Act to disclose material defects. … We see nothing in the “as is” provisions of the disclosure form that may be read as allowing a seller to contract out of its disclosure obligations.
Used car dealers may dream that “as is” language or a warranty disclaimer clause ends their obligations to tell the truth and saves them from having to disclose known material defects but that is not the law. If that were the case, there would be no used car consumer fraud claims unless the claims arose out of false written statements labeled as warranties. Used car dealers would then be free to sell cars that they knew were dangerous to drive and that they knew had defects by simply inserting an “as is”, no warranty or other exculpatory clause into a form contract, and then concealing and omitting to disclose those known defects. This would not only violate the Consumer Fraud Act’s prohibition on selling products with known material defects simply by failing to disclose them or by misrepresenting that they did not exist, but it would also violate the dealers’ obligations under the Vehicle Code requiring that they put safe cars on the road. Allowing used car dealers to sell dangerous cars would endanger not only the buyer and the buyer’s family and passengers but also the public. The Vehicle Code makes it: “unlawful for any person to . . . knowingly permit to be driven or moved on any highway any vehicle . . . which is in such unsafe condition as to endanger any person or property …” 625 ILCS §5/12-101(a). Continue reading ›