Specific language in a sales contract does not waive material misrepresentations in the procurement of a sale.

The defendant appealed a judgment in which it was determined they violated the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20, in which they advised the plaintiffs that a motor vehicle had no rust, when the entire undercarriage had massive rust. Unlike the elements of common law fraud, the CFA does not require the plaintiff to have reasonably relied on the misrepresentation of the defendant or that the defendant have knowledge or belief of the statement’s falsity. An affirmative misrepresentation in the context of the CFA is one which is material to the transaction that is found to be a false statement and induced the buyer to make the purchase. Materiality is based on how a reasonable person would attach importance to its existence in determining a choice of action. The court found that the “as is” provision in the sale contract could not waive a consumer’s statutory rights under the CFA. Accordingly, specific language in a sales contract does not waive material misrepresentations in the procurement of a sale.

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