What is the meaning of the ‘as is where is’ phrase?
Dear Mirror Lawyer, I saw an auction sale advert in one of the national dailies. The vehicles being advertised for sale were offered under a terminology on an “as is where is” contract.
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What does it mean for a vehicle to be offered for auction with the phrase "as is where is".
Joseph Agyemang, Kumasi Polytechnic.
Dear Agyemang, Sale of vehicles could be by auction or private treaty. In either situation, the sale could be on an “as is where is” basis.
When that term is used it implies the vehicle may not necessarily be new and therefore is a take it or leave it sale.
"As is" denotes that the seller is selling, and the buyer is buying an item in whatever condition it presently exists, and that the buyer is accepting the item "with all faults", whether or not immediately apparent.
This is the classic “caveat emptor” meaning let the buyer beware situation in sale of goods. The careful buyer should take the time to examine the item or obtain expert advice before accepting it.
The "where-is" part simply means it is the buyer's responsibility to get the item from the location where it is at the time of sale to the location where the buyer wants it.
This is basically another way of saying that the buyer is responsible for all cost of packing, transportation and insurance or picking it up in person.
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In the event that it is a large item like an unserviceable Vessel or Aircraft which needs to be dismantled before transportation, it means the buyer is responsible for getting this done and paying for it.
"As-is-where-is" is a common terminology for used items and items sold at auction. It pretty much says "what you see is what you get". It may or may not work. It may or may not have hidden defects.
The only assurance the seller is making is that you will get what is shown or what you see after you make the commitment to purchase.
Consequently, the buyer bears the responsibility to conduct proper checks and inspect the property thoroughly beforehand, for the buyer shall be regarded as having inspected and accepted the property in its actual state and condition once the option is accepted and exercised.
In the case of Addai v Pioneer Tobacco Co Ltd [1989-90] 1 GLR 526 in response to an advertisement in the Ghanaian Times of June 3, 1986 by the defendants inviting tenders from the public for the purchase of six old vehicles, including the Land Rovers, ARA 73 and ARA 74, which the defendants had at the workshop of Leyland Motors on "As is and where is" terms.
The plaintiff sent in bids for all the six vehicles. He offered ¢350,000 for ARA 73 and ¢380,000 for ARA 74. He was successful only in respect of the bid for ARA 74.
He subsequently paid the purchase price to the defendants. However, when he went to Leyland Motors to take delivery of the vehicle, the company refused to hand it over until the plaintiff had paid for a brand new engine costing over ¢400,000 which they had installed in the vehicle.
The court held that the statement "As is and where is" appearing in the advertisements were the conditions of sale that normally should bind the parties.
But where what was offered was fundamentally different from what was sold, a plea of mistake would succeed.