44-1267

44-1267. Used motor vehicles; title; implied
warranty of merchantability disclaimer; waiver; burden of proof;
remedies

A. Before the seller attempts to sell a used motor vehicle the seller shall possess
the title to the used motor vehicle and the title shall be in the seller's name.

B. Except as provided in subsection I of this section and in addition to the
requirements of section 28-4412, a used motor vehicle dealer shall not exclude, modify or
disclaim the implied warranty of merchantability prescribed in section 47-2314 or limit
the remedies for a breach of that warranty, except as otherwise provided in this section,
before midnight of the fifteenth calendar day after delivery of a used motor vehicle or
until a used motor vehicle is driven five hundred miles after delivery, whichever is
earlier. In calculating time under this subsection, a day on which the warranty is
breached is excluded and all subsequent days in which the motor vehicle fails to conform
with the implied warranty of merchantability are also excluded. In calculating distance
under this subsection, the miles driven to obtain or in connection with the repair,
servicing or testing of the motor vehicle that fails to conform with the implied warranty
of merchantability are excluded. An attempt to exclude, modify or disclaim the implied
warranty of merchantability or to limit the remedies for a breach of that warranty,
except as otherwise provided in this section, in violation of this subsection renders a
purchase agreement voidable at the option of the purchaser.

C. For the purposes of this section, the implied warranty of merchantability is met
if the motor vehicle functions in a safe condition as provided in title 28, chapter 3,
article 16 and is substantially free of any defect that significantly limits the use of
the motor vehicle for the ordinary purpose of transportation on any public highway. The
implied warranty of merchantability expires at midnight of the fifteenth calendar day
after delivery of a used motor vehicle or when a used motor vehicle has been driven five
hundred miles after delivery, whichever is earlier. In calculating time under this
subsection, a day on which the warranty is breached is excluded and all subsequent days
in which the motor vehicle fails to conform with the implied warranty of merchantability
are also excluded. In calculating distance under this subsection, the miles driven to
obtain or in connection with the repair, servicing or testing of the motor vehicle that
fails to conform with the implied warranty of merchantability are excluded.

D. The implied warranty of merchantability described in this section does not
extend to damage that occurs after the sale of the motor vehicle and that is the result
of any abuse, misuse, neglect, failure to perform regular maintenance or to maintain
adequate oil, coolant or other required fluid or lubricant or off road use, racing or
towing.

E. If the implied warranty of merchantability described in this section is
breached, the purchaser shall give reasonable notice to the seller. Before the purchaser
exercises any other remedies under title 47, chapter 2, the seller shall have a
reasonable opportunity to repair the vehicle. The purchaser shall pay one-half of the
cost of the first two repairs necessary to bring the vehicle in compliance with the
warranty. The purchaser's payments are limited to a maximum payment of twenty-five
dollars for each repair.

F. The maximum liability of the seller under this section is limited to the
purchase price paid for the used motor vehicle.

G. An agreement for the sale of a used motor vehicle by a used motor vehicle dealer
is voidable at the option of the purchaser unless it contains on its face the following
conspicuous statement printed in bold-faced ten point or larger type set off from the
body of the agreement:

The seller hereby warrants that this vehicle will be fit for the
ordinary purposes for which the vehicle is used for 15 days or 500 miles after
delivery, whichever is earlier, except with regard to particular defects
disclosed on the first page of this agreement. You (the purchaser) will have
to pay up to $25.00 for each of the first two repairs if the warranty is
violated.

H. The inclusion of the statement prescribed in subsection G of this section in the
agreement does not create an express warranty.

I. A purchaser of a used motor vehicle may waive the implied warranty of
merchantability described in this section only for a particular defect in the vehicle and
only if all of the following conditions are satisfied:

1. The used motor vehicle dealer fully and accurately discloses to the purchaser
that because of circumstances unusual to the used motor vehicle dealer's business, the
used motor vehicle has a particular defect.

2. The purchaser agrees to buy the used motor vehicle after disclosure of the
defect.

3. Before the sale, the purchaser indicates agreement to the waiver by signing and
dating the following conspicuous statement that is printed on the first page of the sales
agreement in bold-faced ten point or larger type and that is written in the language in
which the presentation was made:

Attention purchaser: sign here only if the dealer told you that this
vehicle has the following problem(s) and that you agree to buy the vehicle on
those terms:

1._______________________________

2._______________________________

3._______________________________

J. The dealer has the burden to prove by a preponderance of the evidence that the
dealer complied with subsection I of this section.

K. Any purchaser or seller who is aggrieved by a transaction pursuant to this
section and who seeks a legal remedy shall pursue any appropriate remedy prescribed in
title 47, chapter 2 and shall comply with the requirements prescribed in title 47,
chapter 2.