8
in other words
march20
2014
Ask a Lawyer
By Steven Leskin
Q~
What are my rights if I buy a
used car from a dealer?
A~
In any business relationship or
commercial transaction, your rights and
obligations are contained in the contract.
A contract is a mutual exchange of ben-
efits and obligations. That mutual ex-
change is called “consideration.” A con-
tract can be written or oral. A contractual
agreement can include any provision on
which the parties agree which is not con-
trary to law.
A contract for the sale of a used
car will contain terms which identify a
particular car, the payment terms, de-
livery details and warranty. If the car
is going to be paid for over time, then
likely there will be a separate payment
plan. The payment plan will provide that
the car is collateral in the event of a pay-
ment default, how the seller/lender can
foreclose on the car (meaning re-possess
the vehicle), and what other remedies
the seller has. These other remedies may
include recovering costs and attorney
fees if there is money left owing on the
contract and the seller goes to court to
recover them.
The warranty section is likely
the most important term in a used car
transaction. Most of us are familiar with
the term “AS IS.” This means that the
dealer has no obligation to you after the
car leaves the lot. An AS IS term means
that the buyer takes responsibility for
how the car runs after purchase. Used
car dealers, by order of the Federal Trade
Commission, are required to display the
“Buyer’s Guide” prominently. The Buy-
er’s Guide will explain the warranties
which accompany the used car.
The advantage to the buyer of
an “AS IS” clause is that vehicle should
cost less. The risk is that the vehicle does
not run well and that the buyer has no
recourse.
Finally, Oregon does not have
a lemon law which applies to used cars.
The lemon law only applies to new cars.
Absent material and provable misrepre-
sentations, the buyer’s recourse in the
event a used car does not perform as
promised is limited.
Q~
What is a tort?
A~
In our country, there are two
types of laws: laws that derive from stat-
utes and laws that arise directly from the
courts. Of course, courts rule on the con-
stitutionality of statutes and the interpre-
tation of laws passed by the legislature.
Those cases involve a federal, state or
municipal law. The court of appeals
rulings on those statutes are public and
form a running body of law called prec-
edents. Cases involving similar facts un-
der the same statute will be decided by
the rulings in prior cases.
As a general matter, the laws
passed by the state involve the state’s
relationships with its citizens and what
they can and cannot do. The laws created
by the court, generally, involve citizen’s
relationships with one another.
Hence, criminal cases are al-
ways created by statute. A criminal case
will be called “The People of Oregon vs.
Jaba The Hut.” There are other statutes
which are not criminal, e.g. insurance
regulations or the Corporations Code,
and these form the vast bulk of law. For
two individuals to sue one another under
one of these laws, the right to sue must
be expressly given by the statute.
Tort laws are a different matter.
Tort laws consist of people suing people
to recover monetary damages. For ex-
ample, assault cases, negligence cases,
and defamation cases are types of cases
created by the courts and for which there
is no statutory parallel. In other words,
the basis of suing someone for their
negligence in running his or her car into
the rear end of your car is called “negli-
gence” and negligence as a legal theory
is part of law made by the courts, and not
the legislature. This is usually called the
common law.
Again, as a general matter, case
law is made at the state court level. So,
while you could under certain circum-
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stances, sue in federal court for a tort,
you would be using a state court law.
The federal court cases deal with the in-
terpretation and constitutionality of fed-
eral statutes.
Lastly, contract law is primar-
ily court made law. However, there are
uniform statutes between the states to
regulate and promote commerce. For ex-
ample, the Uniform Commercial Code
codifies years of various states contract
laws to create a uniform contract law to
promote and simply the sale of goods
between the states.
Q~
What is “prosecutorial miscon-
duct”?
A~
Prosecutorial misconduct is eth-
ical misconduct by an attorney for the
state or federal government not adher-
ing to the laws and ethical rules. Over
the last several years, there have been
numerous cases of the courts dismiss-
ing cases because of official misconduct.
For example, Senator Ted Steven’s case
in Alaska was dismissed because pros-
ecutors did not turn over all of the gov-
ernment’s evidence to Senator Steven’s
attorneys. Prosecutors are particularly
required to turn over any exculpatory ev-
idence, meaning evidence which could
lead to a finding of “not guilty.”
Several years ago, I represented
a young man from Fiji in a deportation
case. He was given a green card based
on his marriage to a US citizen. They
eventually divorced, and the Immigra-
tion and Naturalization Service revoked
his green card claiming that he did not
marry his wife in good faith.
The INS attorney interviewed
the ex-wife and requested that she sign
an affidavit. The attorney prepared the
affidavit, and sent it to the wife. The affi-
davit stated that it was a sham marriage.
The wife refused to sign it. The marriage
was real, whether or not she was getting
a divorce.
The INS attorney presented the
affidavit to the court. The court ques-
tioned why the affidavit was not signed.
The attorney lied. The INS attorney
stated it was an accurate reflection of
her conversation with the ex-wife. Later,
after the hearing, the ex-wife wrote the
judge directly and explained that she had
refused to sign the affidavit: whatever
her present feelings were for the ex-hus-
band, her marriage had not been a sham.
Despite the unsigned affidavit
and the letter from the ex-wife, the judge
found for INS and deported the husband.
It was clear that the judge believed the
unsigned affidavit because he disbe-
lieved the husband when his testimony
contradicted the affidavit. A real mar-
riage was found to be sham based on a
false affidavit.
This level of misconduct seldom
happens. And, when it does, it is sicken-
ing to see. I hope never to see it again.
Steven Leskin is an attorney in North
Portland. He has been in practice since
1992. You can submit a question to him
through www.ModestMeansLawOffice.
com or through the Vernoia’s Voice web-
site.
Mark your calendar now!
The Vernonia chapter of P.E.O. will hold a big rummage sale
at the Grange Friday, April 25 and Saturday, April 26.
Antiques, collectables, housewares and more.
Look for details in next month’s Voice
Trying the Stafford Way
Celebrate
the
Stafford
Centennial by doing some creative
writing in a free workshop led by Oregon
Poet Laureate, Paulann Petersen at the
Forest Grove Library on Saturday, April
12, 2014, from 10:30 AM to 3:00 PM.
The most encouraging of
teachers, William Stafford urged us to
use writing as a vehicle for exploration
and inquiry. During this workshop—in
that spirit of welcoming what might
find its way onto a page—we’ll use
some Stafford poems as springboards
for generating our own poems or short
prose pieces. Our goal will be to have
each of us end our hours together with
an outpouring of new work.
Each participant should bring a
notebook or journal, preferably a large
one (not diary size), because Paulann is
hoping that people will write copiously,
and that’s not easy with a small journal
or notebook.
Please bring a sack lunch.
For writers of all levels of
experience. Beginners are welcome.
Registration required. Register
at the library Reference Desk or call
(503) 992-3337.
