Legal Question in Consumer Law in Florida

Re: Fraud?

Florida has adopted the Uniform Commercial Code concerning the sale of goods. The UCC provides that an express warranty is created if a sample or model was the basis for entering into the sale and that the couch would conform to the sample or model. Therefore, absent any specific disclaimers, to the contrary, such as purchased "as is" or "with all faults," and based on the facts that you have supplied, there would be a basis for claiming that the seller breached the contract and an breached the express warranty. In addition, you may have a cause of action against the manufacturer as well for breach of an implied warranty of merchantability if the couch is not fit for the ordinary purposes for which a couch is ordinarilly used or pass without objection in the furniture trade for couches.

As a war story, I once sued Burdines and Natuzzi over the same issue, regarding a defective couch and settled for a brand new couch, which is all the purchasers ever wanted. Therefore, try and negotiate for either a repair or replacement. Should you have any further questions or concerns, please do not hesitate to contact the undersigned at (954) 769-0203.

However, to answer your specific question of whether the act constituted fraud, the answer is I do not know, and probably not based on the facts you provided. Fraud is difficult to prove. In order to prove fraud, you must prove that the seller knowingly made a false statement of a material fact, which you relied on, and which caused you damages. More than likely, you have a breach of contract action instead.

Sincerely yours,

Randall L. Gilbert, Esq.