Legal Question in Consumer Law in Maryland

The Boat May Sink But the Deal Floats

� 2-509. Risk of Loss in the Absence of Breach.

(3) ..the risk of loss passes to the buyer on his receipt of the goods if the seller is a merchant; otherwise the risk passes to the buyer on tender of delivery.

� 2-503. Manner of Seller's Tender of Delivery.

(1) Tender of delivery requires that the seller put and hold conforming goods at the buyer's disposition and give the buyer any notification reasonably necessary to enable him to take delivery. The manner, time and place for tender are determined by the agreement and this Article...

a) tender must be at a reasonable hour, and...kept available for the period reasonably necessary to enable the buyer to take possession;

� 2-316. Exclusion or Modification of Warranties.

(a) unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like "as is", "with all faults" or other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty; and

(b) when the buyer before entering into the contract has examined the goods or the sample or model as fully as he desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him; and

The risk of loss passed when you tendered delivery of the boat (i.e., by making it available for him to pick up). There was no agreement that risk of loss passed at any other time (i.e., after the boat was in the water). Was the deal on an "as is" basis? Arguments lie on both sides, but you did write "as is" on the receipt and this notice was given prior to full payment. The buyer could have withdrawn from the deal at this point and demanded his $100 back. The buyer should have/could have inspected the boat. A question to keep in mind is, how obvious was the hole? This may be counter intuitive but the more obvious the hole, the better the case for the seller. If he did not inspect the boat, then he agreed to buy it on an "as seen" basis. Lastly, a used boat being sold in the newspaper is exactly the type of transaction that places a buyer on notice to closely insect the goods before buying. (NOTE TO ALL USED BOAT BUYER'S: Make sure it floats before you buy it!!)

The boat is his, like it or not. He found or made the hole after he bought it. You made no warranty and gave him notice of this when you wrote "as is" on the receipt. A better practice would be to advertise as "as is". Advise him in writing to come get "his" boat. Give him reasonable time to pick it up. You will need to know how to deal with him in the event that he refuses to take what is his.

DISCLAIMER: This is not legal advice. You should consult with an attorney.