Know Your Rights: Promise to make a gift not enforceable
Q. A few years ago I remarried. I immediately fell in love with my stepchild and wanted to let him know how much I felt like he was my own. I told him when I bought a new car I would give them my old one. That was almost a year ago and I no longer feel I can afford to give him the car. Am I legally obligated to give him the car as promised?
A.While people should always try to keep their promises, as far as the law is concerned, a promise to make a gift generally is not enforceable. To have an enforceable promise, called a contract, the law requires something be given in exchange. The law calls this “consideration.” For example, had you said, “if you will promise to visit once a week I will give you my car when I get a new one,” and he replied, “deal,” there would be a contract and you would be bound to give him the car. On the other hand, if you just said, “I love you very much and promise to give you my car when I get a new one,” or simply, “I promise to give you my car when I get a new one,” it would not be an enforceable promise. Based on what you say, my opinion is your promise is not enforceable.
Q.I bought my 19-year-old a used car from a used car lot. The seller explained it had a check engine light on, indicating a minor problem with one of the cylinders. After we paid, we took it to a mechanic who diagnosed that the engine needed to be replaced. We asked to return the vehicle for a full refund. He counter offered to replace the engine at no cost. Now he is saying he can’t do that and we will owe another $650.00. Do we have any legal rights?
A.My opinion is that if the seller represented it was simply a misfiring engine and it was much more serious, he has violated the Texas Deceptive Trade Practices Act (DTPA). This is our state’s consumer protection law and it protects you whenever a seller misleads or deceives you or takes grossly unfair advantage of you. If the seller violated this law, you should be able to get a refund or the amount it will cost to put in a new engine. If the seller puts in a new engine for free, that probably is all you are entitled to. I do not believe he has any right to require you to pay an additional sum.
The DTPA can be used in justice court, and if you can show the seller know about the seriousness of the problem and misrepresented it, you could be entitled to up to three times your damages. Sixty days before you sue, however, you need to send written notice telling the seller what your damages are.