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I know someone who went to purchase a brand new car from a dealer in the US. The customer came in with an internet ad and asked to test drive the car listed. After the test drive, she paid for it. But when she returned outside, and got in the new car, she found inside was different. Less features. Less comfortable wheel and seats.

The dealer argued they make an honest mistake with the test drive, but they sold the customer the car they asked for, the one from the internet ad. They think the buyer must have been aware the car they test drove was too nice.

The customer though thinks they deserve the car from the test drive, even if it was a mistake, because they first tested it and immediately paid five minutes later.

Update 1: To clarify, this was a brand new car, not a used car.

Update 2: The VIN on the contract matches the VIN of the car the customer received. The customer didn't expect she'd get a different car, so didn't think to check VINs before signing the paperwork.

Update 3: The customer remembered the test drive car's mileage, as it was a unique number. Weirdly, the contract lists the mileage of the test driven car, not the mileage of the car she received. When she was signing the paperwork, this just supported her idea that everything was fine.

Was this a breach of contract? Is the customer entitled to the online ad car or the one in the test drive? What law supports this?

Nattgew
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Village
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    The second paragraph provides a clue that the dealer is being disingenuous - Is it reasonable that they expect the customer to be aware the test car was “too nice” if they themselves were not? – Michael Hall May 03 '23 at 14:31
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    BTW, car ads are well known for “fine print” disclaimers explaining that the car pictured includes options that are not part of the advertised base price. I do believe that their tactics prey on naivety, and they often act in bad faith, but if your friend wanted the very same car she drove she needed to be clear about the options she wanted. – Michael Hall May 03 '23 at 17:35
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    Not very relevant to the question as asked, but I cannot imagine a realistic series of events that could result in this mistake at a dealership. This is a bait-and-switch. – Chuu May 03 '23 at 20:09
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    Does "her contract lists the on-line car's VIN" mean that it's the VIN of the car she test drove, or the car that they ended up giving her? – Herohtar May 04 '23 at 03:59
  • If I buy a new car I expect to get a new car, not a car that's been used for test drives for several weeks or months... If I book a test drive I expect to get a car the dealer has in stock for exactly that purpose, which may or may not have the same options package and paint job as the one I intend to order (which I'll likely not even have told the sales person yet). – jwenting May 04 '23 at 06:41
  • When you say "new car" do you mean "new to her?" Did she arrive wanting to buy a specifically advertised second-hand car? Then after test driving that car and agreeing to buy it, she was presented with a different vehicle to take home. If I turn up at a showroom asking to test AB22CDE, I would expect to drive AB22CDE home. Granted, in the UK the situation is different because the registration is on the car rather so it's much easier to make the case that the car I tested is the one I want. – BWFC May 04 '23 at 08:57
  • @BWFC - I kind of agree that the situation alters substantially between the two of these: If I'm responding to an advert for a second hand car, I'd expect to be trying precisely that second hand car, because it may have defects. If it's a new car, and I want one of that type, it might matter less – lupe May 04 '23 at 13:28
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    The factory making mistakes while building a product is a real thing, and those mistakes can be different on each one they build. So, when I test drive a car, I am checking to see that a specific car is operating as expected. I am not checking that a particular model of car in general works. It would seem reasonable for a customer to expect that they are buying the exact same car they tested. – user4574 May 04 '23 at 16:00
  • @Chuu I can. I've been through a very similar process recently where we found one car we liked in an online listing, but it wasn't on the lot, so we test-drove another similar one, then browsed their inventory system and discussed a third, fourth, and fifth one with slightly different features and colors, eventually signing a contract for #4 which we never test-drove. Now, we got exactly the car we wanted and were happy, but at one point someone grabbed the wrong piece of paper off of the pile on the desk and almost wrote out a contract for a different car. – hobbs May 04 '23 at 18:21
  • (Luckily I had memorized the last digits of the VIN of the one we decided on, against just that kind of mistake, because that's now my brain works) – hobbs May 04 '23 at 18:25
  • @hobbs In your example, if they went through with the paperwork for the wrong car, and then claimed that it was the correct one after discovering the error, in my mind that still qualifies as bait and switch. Even if it wasn't intentional at the point the error was made, if they decide to double down instead of fixing the problem the end result is the same. – Chuu May 04 '23 at 18:29
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    @user4574 When you're buying a new car a test drive is more about how you feel about the car. A decade ago car shopping I turned around on a test drive because I found myself hating it after a mile. By the specs a perfectly good car, just absolutely not what I wanted to drive. Long ago I also cancelled a test drive before even pulling out of the parking space--back then some Japanese cars weren't built with big American feet in mind and I found my foot could catch on the frame above the gas even with my heel touching the floor. – Loren Pechtel May 05 '23 at 02:32
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    You aren't "entitled" to the same car (model) tested in the test drive or in the ad (consider that they may have sold the last car of that model after airing the ad or after your test drive). But you are entitled to know whether it's the same model (or possibly required to be informed if it isn't). – NotThatGuy May 05 '23 at 08:35
  • Unofficially, the dealer was wrong, it should have been the same car for the test-drive as sold, or clearly explained as otherwise. Whether this is a valid point of law, I have no idea. – JosephDoggie May 05 '23 at 18:18
  • Since there is apparently a discrepancy between the number of miles indicated in the contract and the number of miles actually on the car, it might be helpful to supply the exact wording in the contract regarding that mileage. – KRyan May 05 '23 at 20:32
  • https://en.wikipedia.org/wiki/United_States_contract_law#Cancelling_the_contract I am surprised that none of the obvious equitable remedies appeared in this answer. – fabspro May 06 '23 at 04:12

3 Answers3

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As described, this may be a form of illegal bait-and-switch advertising, but not breach of contract. The contract states the specific vehicle to be sold, which does not match the test-driven car. If the dealer had listed the better car's VIN in the contract but supplied a different car, that would be breach of contract.

Whether it is illegal advertisement depends on the representations and disclaimers made by the dealer. To the extent that the dealer supplied indications that there was a difference between the test model and the purchase model, or to the extent that the customer should have known that the test car had features not found in the specific model that the customer believed he was buying and paying for, the dealer was being non-deceptive. To the extent that the dealer holds that selling model X instead of model Y is an "honest mistake" on their part, the dealer was being deceptive (or, was plainly in breach of contract). It's hard to see what "honest mistake" the dealer might have made, but perhaps the mistake was "not being clearer to the customer that they had test-driven a fancier model, not the one that they were actually buying".

The customer's attorney could pursue this matter and either get the better car, or get a better financial deal, but it really hinges on who said / wrote what (and has a more believable story about what was said).

user6726
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  • As a negotiated remedy between customer and dealer, yes, the dealer may make that choice. – user6726 May 03 '23 at 14:58
  • @jen, are you implying that user6726 may have accidently concluded that a potential remedy might be getting the better car that was tested? Your confusion over the last paragraph is unclear. – Michael Hall May 03 '23 at 19:02
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    @MichaelHall it’s unclear whether it was meant as the likely out-of-court settlement or a potential judicial remedy. – Sneftel May 03 '23 at 20:20
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    Even written contracts can be unilaterally annulled if it is clear there was never a "meeting of the minds", especially if the party seeking annulment acted in good faith and the other party acted in bad faith. If a customer test drives a particular car, and signs a contract to purchase a car with VIN #12345, such action would tend to imply that the customer had a good faith belief that the dealer had correctly and honestly transcribed the VIN of the car that was test driven or--at worst--a car substantially identical to it. – supercat May 03 '23 at 20:27
  • @Sneftel, is there a reason it couldn't be a possible outcome of either? If not, why distinguish between them? – Michael Hall May 03 '23 at 21:35
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    @MichaelHall it's possible but unlikely. Courts prefer not to use specific performance when there are other remedies available. – MJD May 04 '23 at 15:48
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    Per the question, the contract indicates that the car sold has X miles on it, while it in fact has Y miles on it, because X is the number of miles on the test-drive car, and the car received (and whose VIN is in the contract) is not that car and has a different number of miles on it. This answer would be improved if it addressed how that discrepancy might affect matters, if at all. – KRyan May 05 '23 at 20:30
  • @MJD “Specific performance” would mean that particular car, which the customer probably doesn’t have the right to, but they should have the right to either a car with all the same features, or money off if these features are not available. – gnasher729 May 06 '23 at 06:34
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Simplistically, here in the UK it's rather clear that if a customer acts on information you provided; more so in a professional capacity then what goes wrong is your responsibility.

Logically, the same should be true everywhere and if it's not, the why of that is beyond me, for one.

Robbie Goodwin
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  • Does this mean your opinion is that the ad was good enough? – JosephDoggie May 05 '23 at 18:19
  • The test drive is more specific information than the ad. – gnasher729 May 06 '23 at 06:35
  • It means that if the customer could show how her decision to buy was based wholly or largely on information provided through the test drive, she might be able to enforce those detailed specifications, compensation or a full refund

    The dealer or manufacturer might say local law allowed a 'reasonable facsimile' of the model shown, while many advertisements carry caveats like 'Not all features available on all models…'

    Far from she 'must have been aware…' she clearly is not and the dealership clearly is an expert, expected to know the difference.

    More…

     – Robbie Goodwin May 15 '23 at 19:13
  • Further… That she first tested it and immediately paid is hardly the point, though it might matter greatly whether she carefully shut the door of the test car and while still gently caressing it, said 'This is the one' or, ignoring the test car, brandished the ad saying 'That's the one for me.' – Robbie Goodwin May 15 '23 at 19:14
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No way in heck you are going to enforce performance and get the car you test drove when you signed a contract for another car, but no way they can make you pay for the car you didn’t think you were getting either.

I hope your friend refused to take possession of it and isn’t driving it now and hoping it will just “get fixed” because that tends to indicate acceptance of the contract they signed.

You can demand a refund and to void the contract and you would have an excellent case for that. If they don’t agree and your friend can show that there was every reason to believe they were getting the car they test drove, that won’t go well for them especially if there is an error on the odomoeter reading.

Your friend can also report them to the BBB and to their state’s attorney general for trying to pull a bait and switch. Individual states may also have special laws for situations like this. You don’t mention what state your friend lives in, but I’m not a lawyer anyway so they probably want to talk to one after doing some googling.

Jason Goemaat
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