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General Lawyers

Again, the rights of the car’s owner

The article “How to replace a Lada Vesta car that is defective under warranty,” published on this site on 26.06.2019, attracted a lot of interest from owners of warranty cars. Owners of various brands of cars sold or operated in Belarus began to make appeals to the editorial office of this site. Therefore, a large article was needed on the subject.

We appeal to Vadim Valevich Korobko the lawyer, who is involved in legal practice in cases in this category. We ask him to share his private practice with us and to give his opinion on the feasibility of a legal dialogue among the owners of warranty cars, and the official dealers.

Preface:

Customers have different reasons for buying a new car. If they could avoid having to repair the car at their expense in the future, they are willing to pay more for a new vehicle.

It is possible to buy a used car for $ 15,000 equivalent, drive it for 1 year, then spend $ 500 equivalent on repairs or maintenance. However, the unpredictable nature of the automotive market means that the car could go up in price to $ 15,500 equivalent a year later. For $ 20,000 equivalent, customers can buy a new car. However, once the vehicle leaves the dealership, it loses its value. It may also lose 1/3 of its value during its operation after expiry of the warranty.

People will consciously overpay for the warranty. It is important to note that they often are satisfied with their car, and would recommend it to friends who want to purchase new cars. These people don’t turn to lawyers. People who have had issues in the past often approach me and my colleagues. I hope that the future norm of life will change. I and my colleagues will approach clients at the car-buying stage to explain current legislation and plan for future legal dialogues with dealers. Otherwise, the joy of purchasing a new car could quickly turn to something negative.

The purpose of this article’s publication.

Many clients approach me when they find themselves in difficult situations regarding their relationship with dealers. However, I know there are many people on a national level who don’t know how to handle similar situations. They don’t know what their rights are, what obligations dealers have, what warranties are given to owners of warranty cars, what protections they have, and who they can go to for help. As I mentioned in the previous article, ignorance of the law is a major reason why many people don’t want to solve their problems, or think it is impossible, futile, and do not want to. But I find it difficult to understand why customers buy a car and get a warranty of 40,000 rubles ($20,000 equivalent) but then don’t want to exercise their rights. According to the official June 2019 average accrued salary of the country, 1,080 rubles was the equivalent. However, it is worth considering that after deductions for taxes and contributions, the average salary may have been around 900 rubles. Citizens buy cars on conditional 45-monthly wages. Sometimes they also purchase cars on credit. However, they are often subject to moral and material discomfort.

There are sometimes interesting cases where cars fail to paint properly or have problems with their engine and box. These problems can be fixed by the dealer, but it is easier for the client, who will use the car already painted and will decide how much he will sell it in this form. It is great if any potential problems can be fixed by the dealer for good. If not, they will reappear if they are not.

But I’m sure the Republic of Belarus will improve its legal culture. The publication of this article, at the very least, will help in the area of the relationship between the dealer of the warranty car and the owner. The article’s publication aims to improve the legal literacy of the population. It also recommends that citizens of developing countries, such as Belarus, try to move away from the ever-present desire to save.

The preparation of an article of a theoretical nature. However, it also includes the analysis of the lawyer’s legal practice in conducting client instructions in cases of this type.

The issues of replacing the car or recovering money from the dealer for selling it with defects in it were discussed in previous articles. After analyzing my experiences in handling cases in this area, I concluded that only a small number of people are aware of the owner’s right to replace the car if it is of poor quality.

Because of the importance and high level of interest in this topic, I decided to write this article to inform citizens and to explain the Republic of Belarus’ current legislation on car owner rights in the event that the dealer extends the warranty period of their car. Also, I will be analyzing and summarizing my own experience in doing business in this area.

Some theory.

What rights do the owners of the car have if an official dealer extends the warranty period?

Law “On Protection of Consumer Rights”, amended by the Law of the Republic of Belarus, 13.06.2018 No. The Law 111-Z (hereinafter the Law) provides that the consumer can claim for the replacement of defective goods or expensive products to which the car belonged. It also allows the consumer to declare the requirements for termination of the contract and return of the car. Transfer of goods by the seller. If the buyer discovers a defect or violates the terms of gratuitous removal of defects in the goods, they may file such claims after the expiration date. The seller (manufacturer or supplier, representative, repair organisation) must immediately eliminate any defects found in the goods. If it is impossible to remove the defect immediately, the maximum time for their elimination must not exceed 14 days from the date that the consumer requested to have the goods removed. This period can be extended by written agreement between the consumer and the manufacturer, but no more than 30 days.

The above limits the time it takes to repair your car. It can only be extended by written agreement between the owner and dealer. If the repair period exceeds 14 days or 30 days, you can request replacement or the termination of the contract.

Car owners can also demand penalties (penalties), for any violation of the warranty terms. Penalties are equal to 1% of the car’s cost for each day that warranty repair is delayed.

The car owner can also seek compensation for moral damages. This applies to both the excess warranty period and the dissatisfaction of the dealer.

Contact someone to discuss replacing your car, collecting money, penalties, consulting, preparing documents, and conducting your case.

You can reach Vadim Korobko (Minsk Regional Bar Association), if you have previously made an appointment at these contact details.

Now to Practice:

Many people are well-acquainted with the fact that theory and practice do not always match up. We have to deal with citizens who make critical mistakes that can lead to serious consequences because of the nature and scope of our work. I’ll next describe the problems Clients bring to me and the mistakes they make.

The owner of the vehicle has the right to seek penalties (penalties from the dealer) for exceeding the warranty period. This is up to 1% of its value.

When I was looking at cases in this category, it became clear that nearly all customers who applied to me for a contract for the sale or lease of a vehicle stated that they were selling cars. In the chapter on the responsibility for the parties, it states that in the event of violation of the rights of the car owner (car buyer), the dealer’s liability is a flat rate of 0.0001 to 0.1% of the purchase price for each day. This is known as delinquency. Simply stated, if the dealer extends your warranty period by more than one day, you can claim compensation on the basis of the above percentages. Many Clients are reluctant to use this right due to their small size.

Even though I am a lawyer, and it is not the first time I have handled cases of this type, I still find it surprising that such terms of the contract directly contradict the Republic of Belarus’ current legislation. The contract’s terms restrict the rights of the consumers in comparison to the rights provided by the Law “On Protection of Consumer Rights” or other legislation protecting consumer rights. They are therefore null and void. The Law’s Article 26 provides that the seller (dealer), for violating the terms (including gratuitous elimination or defects in goods), must pay the consumer (car owner), for each day of delay, a penalty of one percent of price of goods.

The warranty car owner has the right to claim a penalty of 1% of its car’s value. This is not the minuscule 0.0001% as indicated in the contracts of sale. It is a totally different amount.

Many times, Clients who come to me are surprised to learn that the above right is available. This is because the contract stipulates a different amount of interest and the legislation regarding consumer rights. Most often, citizens don’t know the difference. However, Article 26 does not provide that parties can determine a different amount in the contract than that specified article. This would be of crucial importance. Therefore, only the amount established by Article 26 should be considered.

For the same reason, I recommend citizens seek the advice of lawyers who are experts in this type of case and can help you understand the situation.

The right to be compensated for moral damages caused by the dealer’s violation of any rights of car owner

The harmer is responsible for any moral damages caused to the consumer (owner) by violation of consumer rights by the manufacturer (seller/supplier, representative, executor or repair organization).

This means that if the dealer fails to satisfy the pre-trial claim then you can claim moral damages in court. You also have the right to sue the dealer if they violate the warranty repair period.

It is important to keep in mind that signing any written document by you may indicate that you have no claims to the dealer. This could be grounds for refusing to comply with these requirements. It does not have to be a separate document. Your signature can be under the printed text about your absence of claims in the purchase order or act of the work performed. It is important to exercise caution.

The right of the owner to file a claim before the court without having to pay the state fee

The only recourse is the judicial ordeal if the dealer refuses to resolve the situation.

Plaintiffs are therefore exempted from paying the state fee when they apply to the court for consideration of claims based on violations of their rights under legislation consumer protection.

The right of the owner to seek reimbursement from the dealer for expenses including legal fees, in the event of violation of his rights.

The court, in accordance with Article 135 of Code of Civil Procedure of Republic of Belarus, awards compensation to the other party for any legal expenses it incurred in the case. This applies even if the party was exempted by paying them to the state income.

The right to manage their affairs themselves or to have the case handled by a lawyer.

The Client chooses which option to work in this instance. This is a case where the work of a lawyer is done on a fee basis. However, it is explained in detail how to compensate for these costs. The Client can instruct a lawyer to handle a case. He has the right to sign a notarized power to attorney, in the name of a lawyer, who will represent his interests in this matter, in court or out of court. Each case is considered separately and the lawyer can prepare several samples of the required power of attorney. In court, the costs of issuing a power-of- attorney may be recovered.

Concerning the potential problems caused by a lack of professionalism in the repair industry, and an incompetent approach to the case for the clients.

The dealer’s reaction to any major breakdown of the warranty car may pose a problem. A situation may arise where the Dealer’s Service Center determines that the repair of a car will take more than 14 days. The owner of the vehicle may not consent to an extension or delay. In this instance, the Client is not covered by the dealer’s decision to not provide a warranty and that the client can pay for the repairs. This option places the burden on the Client to prove the defective quality of the goods. To avoid this, I recommend that you do not take any risks. However, it is important to have a qualified expert present at the inspection. This expert can also be used to record the inspection and make an expert opinion. Customers find themselves in situations where they don’t have insurance and must rely on the “decency of the repair company,” which is used by the dealer to inspect, fix and repair the car. The complaints from customers who have contacted me look like this: “We called the dealer to request that the warranty car be repaired. We filled out the application detailing the alleged defects and the car was then handed to the dealer for repairs. Because they didn’t believe it was necessary, they did not insist on the presence of an expert or their personal presence. It would appear that everything is obvious. The car is covered under warranty. I am a professional driver and I know that the appearance of a breakdown is not my fault. It was discovered that the dealer had not recognized the defect and offered repairs on a fee basis. What should I do? It may not be possible to get an expert involved in inspecting the vehicle. Many people fall for these traps. Although it is difficult to insure oneself, it is possible to avoid them.

Concerning the dealer’s obligation to repair the warranty vehicle within the prescribed time frames.

Sometimes, I’ve seen cases where Clients request multiple types of work or replacements of multiple units, assemblies, or mixed work. However, the dealer only replaces or repairs some of the parts, or performs specific work. The Client has the right to exercise his rights regarding exceeding the warranty repair period.

Let me show you an example. A client files a request for an engine repair, swelling of the paint coat of the car (the “bugs”) and the replacement of the rear view camera that has stopped working. The dealer fixes the first two issues. However, the rear-view camera question is still open because there is no part in stock. The dealer offers to contact the customer in a few months if such a part becomes available. Here is the biggest misconception Clients have, and that is that they think they must wait. Everyone decides for themselves whether they want to make concessions to dealers and not panic or react instantly. Remind me that the Client is free to choose whether or not to “enter into the position of dealer”, this is a human right but not an obligation.

The problem with the car owner not having copies of submitted orders (orders for repairs), defective acts, purchase order (acts of work performed)

These errors can include car owners not keeping copies of orders (or applications) for repairs to a warranty car. They also don’t keep copies of defective acts.

Many times, customers don’t have copies of orders-orders (acts of work done to fix the problems with the car). It is possible that the documents may be retained by the dealer in such instances. He will give them to the owner or his lawyer upon request.

Additionally, car repair applications often include very limited and sometimes misleading information about the defect (breakdown), its description, and the symptoms that led to it.

I suggest that customers who apply to me take a photo of or a regular copy all documents pertaining to the operation or repair or warranty car (applications and defect acts, purchase orders or specifications, etc.). It is better to have 2 copies of these documents, as they might be required in the future.

The right to demand the replacement of the vehicle, payment of funds and recovery of a penalty despite the fact that a “replacement car” was provided.

Some customers believe that if the dealer offers a replacement car during the warranty period, they are unable to sue for any damages or reimbursement. This is incorrect. The owner of the car doesn’t lose this right. The Law states that the dealer is not required to provide a replacement vehicle, as the car is listed in the List of Durable Goods. This means that the consumer cannot be provided with a comparable product for the time the defects are eliminated or replaced. Sometimes dealers will still offer a replacement car depending on the situation. However, the provision of the vehicle for the duration of the warranty does not give the client the right to claim monetary compensation, replacement or funds recovery if the terms of the warranty are exceeded.

The right to demand the replacement of the vehicle, payment of funds and recovery of a penalty if the dealer has not actually repaired the warranty car. Also, the legal consequences of signing documents stating that there are no claims.

Next, customers believe that if a dealer exceeds the warranty repair period on a car but repairs were made anyway, they can sue the dealer for penalties, replacement of the car or payment of funds. This is not true. This can be done even after work has been completed. However, it is possible to refuse to comply with these requirements if the Client states in writing, after transferring the vehicle after repairs have been completed.

The rights of the car owner when buying a warranty car for lease.

The rights and obligations of the dealer and the owner of the vehicle are not affected by the lease agreement. Because this contract has elements of both lease and sale agreements, it is legal to apply the laws on the sale and purchase of goods to it.

Total:

Protect your rights and spend money on experts and lawyers. Or, you can just accept it. My motto to clients is “The most important thing is to make a good choice.” If you are looking at the legal future and present of the country and have spent substantial amounts of money on expensive cars, and want to learn about your rights and be ready to defend them then my recommendation is to not save on professional protection.

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