I'm being sued by someone who bought a GTS engine from me. It's been a year and now he's claiming I sold him a worthless engine. I had bought that engine based on information from previous owner and I was clear that, like in any used engine situation, no warrantee was implied. The Bill Of Sale does not specifically use the terms "as is" or "no warrantee" (my fault ?), but our correspondance does. The Bill Of Sale doesn't imply warrantee either. In fact in contains a quote from one of the emails where I advertised the sale and referenced information "according to previous owner".

He's suing me for breach of contract

The guy who bought the engine is not mechanically inclined and he had been working and speaking off of what various shops told him. He wasn't even able to articulate what turned out to be wrong with the engine. Now that I received the summons, it mentions broken rods and pistons. Odd because the engine turned fine when the sale occured!!!

He also ignored my advice to install an S4 engine on his S4, and not upgrade to GTS. His primary reason was resale value of the car. In fact he posted here at some point and most people advised him against a GTS engine if resale value was his concern.

He also believed that installing an S4 replacement engine or upgrading to GTS were of the same cost and hassle. Apparently he was baited by his shop so that he commits to the job, and ignored my advice that he would have to make sure the ECU is correct for a full swap, and that there are some things to do in order to make the GTS engine a drop in replacement.

I have no idea where the engine is, and what was done to it, and if indeed it ended up having broken rods and pistons, whether it was like that upon delivery or it was misused and broken by the buyer. We live on opposite coasts

 

I think statute of limitations may be exceeded? If so, he has no case.

 

Where was the lawsuit filed? The statute of limitations, as well as the law that will apply to this matter, depends on the state where the action is taking place.

More than likely he's proceeding under a theory of implied warranty of merchantibility/fitness for a particular purpose (i.e. running condition of the engine). The wording of your bill of sale could be critical depending on the law that applies.

You really need to contact an attorney in the jurisdiction where you're being sued.

 

Actually it is not that simple ..."However, a huge exception to this general rule exists. The exception protects plaintiffs in situations where they may not be aware for months or even years that they have been harmed. In such situations, statutes of limitations may start the clock ticking either on the "date of discovery" of the harm or on the date on which the plaintiff "should have discovered" the harm. In short, for some types of legal actions the statute of limitations clock can start ticking at three different times! .... so not an automatic one year.

 

Tarek,

What state was the suit filed in?

Steve

 

I'm just kind of wondering, if Tarek says that the rods and pistons were good when he sold the engine, and the other guy says they were broken back then, who does the burden of proof fall on?

 

Danglerb? Sorry, just trying to bring some humor.

State where the suit was filed will be a good beginning ...

 

no not danglerb.

But I think i remember posts froma guy wanting to put a GTS engine in an S4, and as many people said why bother. The GTS engines are probably close to double the price of an S4 engine, not ot mention a cpu remap. That should be all there is to getting a GTS to run in an S4, i dont see what other issues you would have.

 

What type of correspondence oral, E-mail, fax, letters ?
What amount is he asking and did he have an attorney?

 

Again this depends on which state's law applies, but it will probably be the buyer's burden to prove his case "by a preponderance of the evidence" which basically means..."more likely than not".

There are generally three levels of proof:

1. Preponderance of evidence (normally in civil cases; easiest to prove)
2. Clear and convincing
3. Beyond reasonable doubt (criminal cases; hardest to prove)

 

Thank you all for sharing your thoughts.

The suit is being filed in San Rafael, CA. And yes the wording is "Complaint for breach of contract and breach of implied warrantee of fitness"
I'm also reading from the paperwork:

Hearing on failure to File Proof of Service: 5/10/07
Hearing on failure to answer: 6/8/07
Appear for case management conference on 7/20/07

case management statement must be filed by 7/5/07

 

He's asking for:

1. compensatory damages according to proof
2. prejudgement interest
3. costs of suit; and
4. for such other further releif as the court may deem proper

He bought the engine for $8000.00. He did not want me to arrange for shipping. He had his shipping company pick up from Florida

A lot of our correspondane was oral and email. Not all emails are saved, but I suppose one can request old email archives from teh service provider, right?

And yes he had an attorney

 

I actually went out of my way trying to explain to him the remapping thing and provided him with John Speake's number so he gets the right guidance. His shop told him he didn't need John Speake's help

 

Written correspondence between the parties may constitute admissible "parol" evidence unless the contract/bill of sale contains an "integration clause." Integration clauses usually state that the terms of the contract are limited to any information and obligations contained on the paper itself, and that no other evidence is admissible to determine the parties' knowledge and intentions with respect to contract formation.

This transaction is governed by the Uniform Commercial Code, unless he happens to have filed suit in a state that does not follow the UCC. UCC transactions include an "implied warranty of merchantability" which is basically a warranty that items sold are fit for their ordinary and intended use. This warranty can be expressly disavowed. It also typically only applies to merchants. Are you a "merchant", i.e. someone who habitually engages in the sale of engines and the like?

Based on how you describe things, you sold this engine as is with no warranty. The bill of sale should have stated that but apparently did not. If you have emails, and can prove their authenticity, then they're admissible and dispositive. You can also cross-claim the shop who installed it. You can also counter-claim against him for attorneys fees for filing a frivolous law suit.

Lastly, get an attorney. Definitely seek one who is licensed in the state where this joker brought suit. A FL atty is useless to you unless he/she is a UCC specialist AND the state where this guy filed suit follows the UCC.

 

No I'm not a merchant. Just a private owner.
Thank you again for providing guidance
Tarek