August 6, 2020

With many Fijians under financial hardships due to COVID-19, purchasing brand new items may be off their lists. As a result, consumers may opt to purchase second-hand items from individuals or businesses advertising over social media, or through word of mouth. However, when coming across such advertisements, you would have noticed a clause stating “as is where is basis”, however, did you ever wonder what this means?

 The clause “as is” denotes that the consumer is buying an item in whatever condition it currently exits and that he or she is accepting the item “with all faults”, whether it is immediately apparent or not. A common mistake many consumers end up making is buying without much thought to the process, thus resulting to a loss.  Moreover, “where is” means that it is the buyers’ responsibility is to get the item from the location where it is at the time of the sale. Basically, “as is where is” means that consumers are getting what they are seeing, where they are seeing it. It may or may not work or have hidden defects.

 The Council has noted that over the past years, many consumers unknowingly end up buying unworkable items under this arrangement, wasting their money, especially on electronics, furniture and second hand vehicles. While the trader must advise the buyer on any possible defects in the item, it is the responsibility of consumers to examine the item or obtain expert advice prior to purchase.

 Additionally, as per the Self-Regulating Guideline for the Sale of Second Hand Motor Vehicle in Fiji, it is the responsibility of the trader to disclose the relevant information as per the second hand motor vehicle checklist to the customer who is purchasing a vehicle under “as is where is basis”, such as:

• Any defects in the vehicle whether mechanical or structural in writing;
• The vehicle’s previous accident or insurance write of history;
• Any discrepancies in the mileage or service history of the vehicle;
• Vehicle owner history record for al pre-registered vehicles in Fiji;
• Whether and if the motor vehicle is certified by LTA for roadworthiness (“fitness test”) or not;
•  Reserved price/ sale price;
•  The purpose for which the vehicle was used in the past, for instance, business, family or any other;
•  Any other important records known to the trader to be available with LTA or police or insurance company about the vehicle.
• Whether and if the vehicle has undergone through any damages through natural disasters like flood or cyclone; and
• Warranty in writing.

All the relevant information disclosed during the sale of a motor vehicle on “as is where basis is” must be documented and signed by the trader and consumer and the original must be given to the consumer.

 The Council comes across such cases where consumers spent a lot of money for vehicles purchased under “as is where is‟ basis with the hope that the vehicles are in a running condition.

 Case Study Owning a vehicle is a proud moment for many but for Samuel, it turned out to be a disaster. Samuel purchased a second hand vehicle on „as is where is‟ basis for $26,300.

 The vehicle transfer took place on the same day of purchase. An excited Samuel bought the vehicle without asking important questions regarding the vehicle. The next day, he decided to take the vehicle to LTA for „passing‟ and was informed that the vehicle failed the first test. The LTA vehicle test result sheets indicated that there was a Chassis breakdown on the steering wheel mounting pivot and that the Chassis number area had been tampered with. Samuel then lodged his complaint with the Council. Little could be done as Samuel was aware that the vehicle was being sold under „as is where is‟.

 The trader, however, in this case did not act responsibly as he failed to disclose necessary information regarding the state of the vehicle. Now with the Self-Regulating Guideline for the sale of second hand motor vehicle in place, consumers like Samuel will get redress from such traders.

Case Study: Problematic carJale bought a second-hand car from an individual (Salesh) for a sum of $10,000 on an “as is where is basis”. However, after using it for one week, he noticed that the vehicle was consuming exorbitant amount of oil. He raised this issue with the trader but was denied a redress.Jale then sought the Council’s assistance. During the Council’s investigation process, it was noted that Salesh did not disclose all relevant information about the vehicle to Jale, therefore, a redress of the full amount was facilitated.

 If you wish to know more about this clause, call our National Consumer Helpline Toll Free Number 155 and lodge a complaint or send an email to complaints@consumersfiji.org