Lemon Law - Delaware
Lemon Law
Lemon Law - "Lemon
law" is that body of state law which defines an automobile
owners rights when the manufacturer is not able to repair the
automobile within the limits specified. In
such cases, the automobile is referred to as a "lemon",
and is subject to the conditions of the state lemon law.
Your Lemon Law:
Disclaimer:
These pages are created to inform and educate the public about lemon
law and under the lemon law in your state.
They are not and should not be considered legal opinions or advice
as to whether you have rights under lemon law or whether you should
pursue "a lemon law case". If after reading
this information, you believe you qualify, you should seek the
advice and counsel of an attorney specializing in lemon law in your
state. Remember that each state's lemon laws vary.
§ 5001. Definitions.
As used in this chapter:
(1) "Consumer" means the purchaser, other than for
purposes of resale, of an automobile; a person to whom an automobile
is transferred during the duration of an express warranty applicable
to the automobile; or any other person entitled by the terms of the
warranty to enforce the obligations of the warranty.
(2) "Dealer" means a person actively engaged in the
business of buying, selling or exchanging automobiles at retail and
who has an established place of business.
(3) "Manufacturer" means a person engaged in the business
of manufacturing, assembling or distributing automobiles, who will,
under normal business conditions during the year, manufacture,
assemble or distribute to dealers at least 10 new automobiles.
(4) "Manufacturer's express warranty" or
"warranty" means the written warranty of the manufacturer
of a new automobile of its condition and fitness for use, including
any terms or conditions precedent to the enforcement of obligations
under that warranty.
(5) "Automobile" means any passenger motor vehicle, except
motorcycles, which is leased or bought in Delaware or registered by
the Division of Motor Vehicles in the Department of Public Safety
except the living facilities of motor homes.
(6) "Nonconformity" means a defect or condition which
substantially impairs the use, value or safety of an automobile.
(7) "Lien" means a security interest in an automobile.
(8) "Lienholder" means a person with a security interest
in an automobile pursuant to a lien.
(64 Del. Laws, c. 173, § 1; 66
Del. Laws, c. 36, § 1.)
§ 5002. Duty to repair
nonconforming automobiles.
If a new automobile does not
conform to the manufacturer's express warranty, and the consumer
reports the nonconformity to the manufacturer or its agent or dealer
during the term of the warranty or during the period of 1 year
following the date of original delivery of an automobile to the
consumer, whichever is earlier, the manufacturer shall make, or
arrange with its dealer or agent to make, within a reasonable period
of time, all repairs necessary to conform the new automobile to the
warranty, notwithstanding that the repairs or corrections are made
after the expiration of the term of the warranty or the 1-year
period.
(64 Del. Laws, c. 173, § 1.)
§ 5003. Remedies upon failure to
repair.
(a) If the manufacturer, its agent
or its authorized dealer does not conform the automobile to any
applicable express warranty by repairing or correcting any
nonconformity after a reasonable number of attempts, the
manufacturer shall either replace the automobile with a comparable
new automobile acceptable to the consumer or repurchase the
automobile from the consumer and refund to the consumer the full
purchase, including all credits and allowances for any trade-in
vehicle; provided, however, that the consumer shall have the
unqualified right to decline a replacement automobile and to demand
instead a repurchase.
(b) In instances in which an automobile is replaced by a
manufacturer under this section, said manufacturer shall accept
return of the automobile and reimburse the consumer for any
incidental costs, including dealer preparation fees, fees for
transfer of registration, sales taxes or other charges or fees
incurred by the consumer as a result of such replacement. In
instances in which an automobile which was financed by the
manufacturer or its subsidiary or agent is replaced under this
section, said manufacturer, subsidiary or agent shall not require
the consumer to enter into any refinancing agreement for a
replacement automobile which would create any financial obligations
upon such consumer beyond those created by the original financing
agreement.
(c) In instances in which a refund is tendered under this section,
the manufacturer shall accept return of the automobile from the
consumer and shall reimburse the consumer for related purchase
costs, including sales taxes, registration fees and dealer
preparation fees, less:
(1) A reasonable allowance for the
consumer's use of the automobile, not to exceed the full purchase
price of the automobile multiplied by a fraction which consists of
the number of miles driven before the consumer first reported the
nonconformity to the manufacturer, its agent or dealer divided by
100,000 miles; and
(2) A reasonable allowance for damage not attributable to normal
wear and tear, but not to include damage resulting from a
nonconformity.
(d) Refunds shall be made to the
consumer, and lienholder, if any, as their interests may appear.
(e) No authorized dealer shall be held liable by the manufacturer
for any refunds or automobile replacements in the absence of
evidence indicating that dealership repairs have been carried out in
a manner inconsistent with the manufacturer's instructions.
(64 Del. Laws, c. 173, § 1; 66
Del. Laws, c. 36, § 3.)
§ 5004. Presumptions.
(a) It shall be presumed that a
reasonable number of attempts have been undertaken to conform a new
automobile to the manufacturer's express warranty if, within the
warranty term or during the period of 1 year following the date of
original delivery of the motor vehicle to a consumer, whichever is
the earlier date:
(1) Substantially the same
nonconformity has been subject to repair or correction 4 or more
times by the manufacturer, its agents or its dealers and the
nonconformity continues to exist; or
(2) The automobile is out of service by reason of repair or
correction of a nonconformity by the manufacturer, its agents or
its dealers for a cumulative total of more than 30 calendar days
since the original delivery of the motor vehicle to the consumer.
This 30-day limit shall commence with the first day on which the
consumer presents the automobile to the manufacturer, its agent or
dealer for service of the nonconformity and a written document
describing the nonconformity is prepared by the manufacturer, its
agent or dealer. The 30-day limit shall be extended only if
repairs cannot be performed due to conditions beyond the control
of the manufacturer, its agents or its dealers, including war,
invasion, strike, fire, flood or other natural disaster.
(b) The presumption provided in this
section shall not apply against a manufacturer unless the
manufacturer has received prior direct written notification from or
on behalf of the consumer and has had an opportunity to repair or
correct the nonconformity; provided, however, that if the
manufacturer does not directly attempt or arrange with its dealer or
agent to repair or correct the nonconformity, the manufacturer may
not defend a claim by a consumer under this chapter on the ground
that the agent or dealer failed to properly repair or correct the
nonconformity or that the repairs or corrections made by the agent
or dealer caused or contributed to the nonconformity.
(64 Del. Laws, c. 173, § 1; 66
Del. Laws, c. 36, § 4.)
§ 5005. Costs and attorney's fees
in breach of warranty actions.
In any court action brought under
this chapter by a consumer against the manufacturer of an
automobile, or the manufacturer's agent or authorized dealer, based
upon the alleged breach of an express warranty made in connection
with the sale of such automobile, the court, in its discretion, may
award to the plaintiff his costs and reasonable attorney's fees or,
if the court determines that the action is brought in bad faith or
is frivolous in nature, may award reasonable attorney's fees to the
defendant.
(64 Del. Laws, c. 173, § 1; 66
Del. Laws, c. 36, § 5.)
§ 5006. Affirmative defense to
claim.
It shall be an affirmative defense
to a claim under this chapter that the alleged nonconformity does
not substantially impair the use, value or safety of the new
automobile or that the nonconformity is the result of abuse or
neglect or of unauthorized modifications or alterations of the new
automobile by anyone other than the manufacturer, its agent or
dealer.
(64 Del. Laws, c. 173, § 1.)
§ 5007. Informal dispute
settlement procedure.
(a) If a manufacturer has
established an informal settlement procedure that has a certificate
of approval by the Division of Consumer Protection, the remedies
provided by this chapter shall not be available to any consumer who
has not first resorted to such procedure. In the event a
manufacturer's informal dispute settlement procedure does not have a
certificate of approval from the Division of Consumer Protection, a
consumer may immediately and directly seek the remedies provided by
this chapter.
(b) The Division of Consumer Protection shall annually evaluate the
operation of informal dispute settlement procedures established by
manufacturers and shall issue an annual certificate of approval to
those manufacturers whose procedures comply with Title 16, Code of
Federal Regulations, Part 703 and with subsections (c), (d) and (e)
of this section. The Division of Consumer Protection shall suspend
the certification of, or decertify, any informal dispute settlement
which no longer complies with said provisions.
(c) Any manufacturer who has established an informal settlement
procedure shall file with the Division of Consumer Protection a copy
of each decision of the informal dispute settlement procedure within
30 days after the decision is rendered.
(d) In order to obtain the certification of the Division of Consumer
Protection, a manufacturer's informal dispute settlement procedure
shall not convene any informal dispute settlement hearing or meeting
outside the State and shall refrain from any practices which:
(1) Delay a decision in any dispute
beyond 65 days after the date on which the consumer initially
resorts to the informal dispute settlement procedure by written
notification that a dispute exists; or
(2) Delay performance of remedies awarded in a settlement beyond
30 days after receipt of notice of the consumer's acceptance of
the decision; provided, however, that such time limits shall not
include periods of time when the consumer or the consumer's car is
unavailable for the remedies specified in the settlement; or
(3) Require the consumer to make the automobile available more
than once for inspection by a manufacturer's representative or
more than once for repair of the same nonconformity; or
(4) Fail to consider in decisions any remedies provided by this
chapter, such remedies to include:
a. Repair, replacement and refund;
b. Reimbursement for related purchase costs; or
(5) Require the consumer to take any
action or assume any obligation not specifically authorized under
the provisions of Title 16, Code of Federal Regulations, Part 703.
(e) A manufacturer desiring annual
certification of an informal dispute settlement procedure shall make
application to the Division of Consumer Protection on forms
developed by, and shall provide such information as required by, the
Division of Consumer Protection.
(64 Del. Laws, c. 173, § 1; 66
Del. Laws, c. 36, § 6; 69 Del. Laws, c. 291, § 98(c).)
§ 5008. Remedies cumulative.
Nothing in this chapter shall in
any way limit the rights or remedies available to a consumer under
Subtitle I of this title.
(64 Del. Laws, c. 173, § 1.)
§ 5009. Enforcement.
In addition to any remedies the
consumer may have at law or in equity, a violation of this chapter
shall be an unlawful practice as defined in § 2513 of this title.
The Division of Consumer Protection shall promulgate rules and
regulations in order to implement the purposes of this chapter.
(64 Del. Laws, c. 173, § 1; 66
Del. Laws, c. 36, § 7; 69 Del. Laws, c. 291, § 98(c).)
