Can I sue if there is an as is clause?

As Is Defense to Consumer Fraud Actions in New Jersey

If a contract has an as is clause a lawsuit can be difficult but you still have some rights. The most likely effect is on a breach of warranty claim, not really on a consumer fraud claim. The as is clause does not provide the defendant the right to defraud you or commit acts of fraud and consumer fraud when buying a car

The Uniform Commercial adopted by New Jersey permits the inclusion of "as is" clauses in contract and the limitation of liability for “breach of warranty,” not consumer fraud. N.J.S.A. 12A:2-316 (exclusion or modification of warranties). Since the plaintiff has already addressed the limited manner in which the courts address and view these “restrictions” it is hard to contemplate that the Code could limit the CFA and rights thereunder. See N.J.S.A. 56:8-2.13

56:8-2.13. Cumulation of rights and remedies; construction of act

The rights, remedies and prohibitions accorded by the provisions of this act are hereby declared to be in addition to and cumulative of any other right, remedy or prohibition accorded by the common law or statutes of this State, and nothing contained herein shall be construed to deny, abrogate or impair any such common law or statutory right, remedy or prohibition.

To interpret the UCC and the consumer fraud act to permit a “fraud” waiver cannot be deemed reasonable. In Parrot v. Carr Chevrolet 331 Or. 537, 17 P.3d 473 (2001) the Oregon Supreme Court addressed the issue of the “as is” clause can create a defense to fraud and consumer fraud and held it could not be done.

In New Jersey you can still maintain a cause of action if there is an as his clause with regard to the underlying transaction. However, the as is cause limits the potential value of the claim and certainly extinguishes certain claims including breach of warranty claims. Not all breach of warranty claims would be extinguished and this would depend on the nature and extent of the paperwork the nature and extent of the affirmative misrepresentations of fact and the nature and extent of the type of good that was purchased by the consumer, plaintiff.

As an example I would submit that the dealership cannot intentionally lie to a plaintiff about the condition of the vehicle while sell it to them as is at the same time. As an example, if the selling dealer crash the car knowing into frame damage failed to advise the plaintiff and then sold it as is this would be deemed a deceptive practice.

So these types of claims wearing as his clause might exist are very complicated and need a very specific and detailed examination of facts and application to existing law. Generally, a straight out warranty claim where in an as is cause has been accepted would be very difficult at best. However sometimes the words stated by the salesman or the literature provided with the vehicle provides a claim for breach of warranty. Nonetheless the value of this claim is substantially reduced- more difficult to recover money- since there must be some acknowledgment that there was some risk to the consumer knowing that the vehicle was sold as is. Again, it depends on the facts of the case, depends on the goods and depends on the applicable law to the underlying transaction.

The same standard applies in so far as a consumer would need to sustain an ascertainable loss associated with any deceptive conduct or the warranty which existed at the time of the purchase.