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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?

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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? May 3, 2023 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. May 3, 2023 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 3, 2023 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 4, 2023 at 3:59
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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 4, 2023 at 16:00

3 Answers 3

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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).

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  • As a negotiated remedy between customer and dealer, yes, the dealer may make that choice.
    – user6726
    May 3, 2023 at 14:58
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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 3, 2023 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 3, 2023 at 20:27
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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 4, 2023 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 5, 2023 at 20:30
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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.

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  • Does this mean your opinion is that the ad was good enough? May 5, 2023 at 18:19
  • The test drive is more specific information than the ad.
    – gnasher729
    May 6, 2023 at 6:35
  • 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… May 15, 2023 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.' May 15, 2023 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.

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