In these times, from every quarter we hear the ranting of the selfish,
the yammer of those who walk the one-way street of the self-centered.
"I have rights! Gimme my rights! Gimme, gimme, gimme!" Prisoners
jailed for murder, rape and every other crime are filing law suits to
get their rights to better cable TV, special food, their drugs of choice
and an assortment of medical benefits their victims can never afford.
Human rights advocates trumpet their efforts to return an assortment of
rights to people who have somehow lost them. We hear the cry every day
ad nauseum. And we give them what they ask for lest we be considered thoughtless
or cruel. We don’t say, "Okay, we’ve given you these
rights, here are your duties. Here are your obligations, the things you
must do to be worthy of having the rights we have given you. When was
the last time you heard these same individuals or groups asking, "What
are my duties? What are my responsibilities?"
In Krotin v. Porsche Motor Cars North America the Court of Appeal of California,
Second Appellate District, Division Two stated; the
California Lemon Law [The Song Beverly Consumer Warranty Act] "imposes an affirmative duty
(emphasis added) upon the manufacturer to provide [a refund] or replacement
when a covered defect is not repaired after a reasonable number of attempts."
They further stated, "To secure relief, the act requires only that
the consumers give the manufacturer a reasonable opportunity to repair
the vehicle." In the law and outside of it the concept of Affirmative
Duty finds many applications. In essence it means that honest, reasonable
men take the initiative when righting a wrong; they do not wait until
they are forced to do the right thing.
The honest man or woman understands that he or she has duties to family,
to groups they support, duties to their country, duties to all living
things and to themselves. Duties are not things to be endured like a tooth
ache; these are things one does to ensure that all parts of his or her
life are made better.
The idea that rights are not earned, that one exists therefore he or she
has rights and that duties are terrible burdens and something only individuals
have and groups need not bother about is logically inconsistent.
Who has what rights and what duties in Lemon Law matters? It seems clear.
The consumer has the duty to present the vehicle to the manufacturer or
its representative, the dealership, in order that they are able to diagnose
the defect and repair it. Along with the duty, the consumer has a right
to expect the dealership to repair the vehicle honestly and expeditiously.
What are the rights of the manufacturer? Simply put, they have the right
to expect that the consumer will present their defective vehicle at an
authorized dealer for repair in a timely manner, nothing more. The manufacturer
can have no other expectation. They cannot expect that the consumer perfectly
describe the defect or any other limiting requirement. They have the duty,
the affirmative duty to take the initiative when it is discovered that
the vehicle cannot be repaired, to notify the consumer and offer to either
buy back the bad vehicle or replace it. Whenever and wherever there is
a duty, there must also be a right and vice versa. This concept is as
basic as gravity. Right and duties are mirror images that in an honest
society always exist together.
It seems too simple to warrant discussion. If you take away rights you
unbalance the system. If you take away duties you unbalance the system.
The result in either case opens the door to unusual solutions, to aberration,
to criminal behaviors, large and small. Regrettably the gap between what
is common sense, even what is demanded by the law and what is practiced, is vast.
Remember, in the Krotin v. Porsche it presents the concept of the manufacturer’s
affirmative duty. A preexisting relationship can create an affirmative
duty to exercise reasonable care to protect another person from harm.
For example, an inn has an affirmative duty to protect its guests, a school
has a duty to its pupils, a store has a duty to its customers, and a lifeguard
has a duty to swimmers.
An automobile manufacturer has an affirmative duty to take the initiative
when it discovers that a vehicle has been presented for repairs a reasonable
number of times (four is the accepted standard in California) and if the
vehicle is still defective, the company should contact the customer and
arrange to either buy back the Lemon vehicle or replace it. In the Lemon
Law where is the preexisting relationship? Is it seller to buyer? Is it
manufacturer to consumer? Is it the responsible corporation to its customers?
Of course! It’s all of the above.
Remember when you bought your car, truck, RV or boat, it came with a warranty.
The warranty was issued by the manufacturer. It is their promise, in writing,
to make whole, to correct any defect that exists in your purchase. The
manufacturer can’t very well say, that’s just lawn supplements
folks, we didn’t really mean it. Caveat emptor, tough luck, you’re
on your own Mr. and Mrs. Jones.
Here is a regrettable fact. Of the thousands of Lemon Law clients we have
spoken with I can count on one hand the number where the manufacturer
made a legitimate offer to buy back or replace a defective vehicle. In
each of these cases no hint of awareness of their affirmative duty was
present. In the few cases where there was an offer, the offer was made
only after the consumer raised so much hell, the manufacturer had no other
option. If you think about it we wouldn’t have had over six thousand
cases if the manufacturer had exercised its affirmative duty and repurchased
or replaced the defective vehicle. Admittedly such transactions may have
occurred, but not one car manufacturer I know is willingly going to divulge
This being the case, how do manufacturers get away with flaunting the law?
How do they ignore their affirmative duty to repurchase or replace your
defective vehicle as soon as they know it cannot be fixed? And believe
me, they know. They have much better access to the vehicles repair records
than the consumer. Their engineers know with certainty what parts of the
vehicle are going to be vulnerable. In the real world of auto manufacturers
affirmative duty is a one way street. Almost without exception individuals
will honor their affirmative duty and bring their defective cars to the
dealership for repair; and they will do so over and over. Having done
this, often long past what is considered a reasonable number of times
the manufacturer’s affirmative duty is to call the consumer and
say, "Your repair history indicates that we haven’t been able
to fix your car. What we want to do—at your option—is replace
your car or give you your money back." To my knowledge that has never
happened. The truth is all manufacturers ignore their affirmative duty;
worse, they hold the concept and those who honor it, in contempt.
If you are a good son, a good husband and father, even a good friend, would
you forswear those qualitites when you enter into and conduct business
as part of a group?
If a man would treat his family and friends with honesty and respect, if
he were a man who cared about others, how does he set these characteristics
aside when he joins a company and acts through the group? Is there something
inherently different in the goals of the group versus the goals of the
individual? I don’t see it. There seems to be a loss of connection
between the individual’s understanding of rights and duties and
what the corporation sees. If you asked the corporate executive at Ford,
GMC, Mercedes or Toyota, would you cheat you neighbor? Would you lie to
him? If he made an agreement with you would you stall, deceive and pull
every dirty trick in the book to avoid keeping your agreement? He would
probably reply, "of course not! What kind of person do you think
Your next question goes to the heart of rights and duties. You should ask,
"If that is so, why is it right for you to purposely avoid your duty
to the people who purchase the products your company makes?" A great
silence would follow. It’s not helpful to an understanding of the
problem to answer, "Because corporations are greedy, blood-sucking
groups who de-humanize themselves in favor of a "good quarterly report."
There’s something deeper wrong here. We’ll talk about it in