Q: I was looking for a tractor equipped with a special transmission. I found one in Saskatchewan and asked the owner on the phone if it had this transmission. She didn’t know machinery and said that I should come to see it. I travelled there and the transmission had the factory stickers on it, so I bought it. When I got it home to Alberta, I discovered it didn’t have that transmission. I contacted the original dealer and manufacturer but got no satisfaction. Can I sue?A: I don’t think you will meet with success. The ancient legal principle of caveat emptor or buyer beware applies in modern times. If the seller had given you definite assurances that this tractor had the transmission you wanted, you might be able to sue for misrepresenting the facts.But since she told you she didn’t know much about equipment, it would likely be seen by a court as her telling you to inspect it yourself and then decide whether to buy it.Similarly, the manufacturer and retail seller have several defences. First, they didn’t sell the machine to you, so there is no privity of contract between you. You can’t sue them for a breach when you had no contract with them in the first place. Next, they may be able to claim they don’t know how the decals got on the transmission housing. They will also say that in buying a used machine, you should conduct a full inspection.While you feel misled, the law presumes that a buyer of goods will conduct his own inspection. Without a direct promise on the transmission, the seller is not liable to you.Rick Danyliuk is a lawyer with McDougall Gauley LLP in Saskatoon.
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