Stop the Press! Tesla announces REAL HP numbers for P85D and P90L

[P85DEE]

He confirms the 691 horsepower at 2 minutes into the video. And he adds that the car can do 0 to 100 kms in 3.1 seconds!
Both are not technically correct and they are exactly the things we have been debating about in these threads.

Uh, yeah.

What does the ad copy say? What is actually in print?

I ask because I keep thinking about this "parole evidence rule" that Canuck brings up.

Canuck, are you an attorney?

If the journalist had said "997 hp", and Musk had said "uh, yeah, and blah blah blah", would that negate the Parole Evidence Rule??

 

[vgrinshpun]

He doesn't say directly anything about horsepower, but around 2 minutes the interviewer asks "691 horsepower?" and he says "uh yeah".

It seems people on one side expects him to correct the interviewer and say "actually, 691 horsepower motor power". However, I don't think that is a reasonable expectation, as the interview was about his accomplishments and going into a tangent about the intricacies of power rating standards is not something that is fit for the interview (even if Elon is the type to make such corrections).

As I put in another post, in colloquial conversation, when describing the power of the P85D before the new number came out, I will just say "691 horsepower" and not append "motor power" to it as that is unnatural. People who want the details can go to the website. Now that there are two numbers, the situation is a bit different and I'll probably default to the 463 hp number.

Additionally as was pointed before, this is an edited interview, and it is not clear what exactly Elon said as there was a cut, right before his answer.

 

[jpet]

What does the ad copy say? What is actually in print?

The problem with the printed info on Tesla's website is that it was not clear, just like the info in the interview was not clear, so that a lot of buyers seem to have understood it incorrectly.

 

[stopcrazypp]

Indeed, and I don't want to hold this against Elon. It would be ludicrous :wink: to think he was deliberately lying or anything like that.

The only thing this example helps supporting is that when some of us expected to receive a 691 horsepower car, we had very good reasons to believe this was exactly what we were going to get.

The interview came out in July 26, 2015. I doubt it had anything to do with expectations of those buying a P85D expecting 691hp with the battery factored in (how many P85D customers have even seen that video and in particular paid attention to that part?). If I am not mistaken, the complaints are largely from people who bought before the March/April 2015 time frame (when the 691 hp thread started).

On the subject of this, I have no doubt there are people who bought the P85D expecting 691hp with battery factored in and I do trust people when they say they made their purchases with that expectation.

However, since the moment the "motor power" numbers came out in October last year, it was clear to me that the number described a component rating rather than something that factored in the whole system, and that there were others that understood the numbers the same way (back then, not with hindsight or any of Tesla's most recent explanations). Thus to me, this is not a clear cut case where Tesla is 100% in the wrong and a trial will largely depend on a consumer survey (at least in the US, your local laws may not require that as proof of a misleading statement).

 

[P85DEE]

Additionally as was pointed before, this is an edited interview, and it is not clear what exactly Elon said as there was a cut, right before his answer.

I can't say for sure, but looking at again it does appear to have been edited, but now one gets into the possible matter of having to come up with an unedited version of the video.

Again though, what's actually printed is there for one to see and at any time.

- - - Updated - - -

The interview came out in July 26, 2015. I doubt it had anything to do with expectations of those buying a P85D expecting 691hp with the battery factored in (how many P85D customers have even seen that video and in particular paid attention to that part?). If I am not mistaken, the complaints are largely from people who bought before the March/April 2015 time frame (when the 691 hp thread started).

On the subject of this, I have no doubt there are people who bought the P85D expecting 691hp with battery factored in and I do trust people when they say they made their purchases with that expectation.

However, since the moment the "motor power" numbers came out in October last year, it was clear to me that the number described a component rating rather than something that factored in the whole system, and that there were others that understood the numbers the same way (back then, not with hindsight or any of Tesla's most recent explanations). Thus to me, this is not a clear cut case where Tesla is 100% in the wrong and a trial will largely depend on a consumer survey (at least in the US, your local laws may not require that as proof of a misleading statement).

Oh man.

If that video came out in late July of 2015, some 9 months "after" the P85D was announced and about 6-7 months after the first ones hit the streets, and long after this ruckus started, then how can anyone who purchased the car more than about 3 months ago, argue that it influenced them to purchase the car?

July 26, 2015 was 112 days ago. Anybody owning this car for longer than that can hardly point to that video and argue that it confused them or duped them into buying the car.

This video came out 9 days after Ludicrous was announced.

 

[Canuck]

Canuck, are you an attorney?

Yes, but please don't take anything I post as a legal opinion. I don't have all the facts to properly provide an opinion and, more importantly, no one is paying me here for my opinion.

 

[P85DEE]

He doesn't say directly anything about horsepower, but around 2 minutes the interviewer asks "691 horsepower?" and he says "uh yeah".

It seems people on one side expects him to correct the interviewer and say "actually, 691 horsepower motor power". However, I don't think that is a reasonable expectation, as the interview was about his accomplishments and going into a tangent about the intricacies of power rating standards is not something that is fit for the interview (even if Elon is the type to make such corrections).

As I put in another post, in colloquial conversation, when describing the power of the P85D before the new number came out, I will just say "691 horsepower" and not append "motor power" to it as that is unnatural. People who want the details can go to the website. Now that there are two numbers, the situation is a bit different (there can be confusion as to which number) and I'll probably default to the 463 hp number. Personally, I treat "motor power" as just another standard (like how GM specifies "SAE certified" in their website) and it is completely unnecessary and awkward to mention it in normal conversation (I have never heard anyone say "SAE certified" in spoken conversation). It is not "wrong" to not mention it.

Good point. I also hear him say "it'll go to 0 to 100 kilometers in 3.1 seconds" which is also clearly not what he meant to say as no car can travel 100 kilometers or 62 miles in 3.1 seconds.

- - - Updated - - -

Yes, but please don't take anything I post as a legal opinion. I don't have all the facts to properly provide an opinion and, more importantly, no one is paying me here for my opinion.

I understand.

My point in asking that question was to determine if you would potentially have more familiarity with the law and it's intricacies in general than many if not most of the participants in this discussion.

That is all.

I understand that any opinion that you render here cannot be considered a legal opinion as you do not have all of the facts.

 

[Canuck]

I understand that any opinion that you tender here cannot be considered a legal opinion as you do not have all of the facts.

Yes, but not having all the facts never stops me from posting my personal opinion here. Ha!

----

Here's what my contract with Tesla says:

Governing Law; Integration; Assignment. The terms of this Agreement are governed by, and to be interpreted according to, the laws of the Canadian jurisdiction in which we are physically located for motor vehicle sales that is nearest to your address indicated on your Vehicle Configuration. Prior agreements, oral statements, negotiations, communications or representations about the Vehicle sold under this Agreement are superseded by this Agreement. Terms relating to the purchase not expressly contained herein are not binding. We may assign this Agreement at our discretion to one of our affiliated entities.

[Emphasis added.]

 

[P85DEE]

Yes, but not having all the facts never stops me from posting my personal opinion here. Ha!

----

Here's what my contract with Tesla says:

Governing Law; Integration; Assignment. The terms of this Agreement are governed by, and to be interpreted according to,
the laws of the Canadian jurisdiction in which we are physically located for motor vehicle sales that is nearest to your address
indicated on your Vehicle Configuration. Prior agreements, oral statements, negotiations, communications or representations
about the Vehicle sold under this Agreement are superseded by this Agreement. Terms relating to the purchase not expressly
contained herein are not binding. We may assign this Agreement at our discretion to one of our affiliated entities.

[Emphasis added.]

Well I appreciate your personal opinion and realize that you cannot offer a legal opinion here.

Where exactly can this statement be found?

Thanks

 

[Canuck]

Where exactly can this statement be found?Thanks

Sign in at Tesla Motors "My Tesla" then scroll down to "Documents" -> "My Documents" and click on "Terms and Conditions."

 

[stopcrazypp]

The MVPA does not mention power and neither does the legally required Monroney sticker, so I don't think horsepower is a contractual issue. It is purely an advertising issue.

 

[Auzie]

Yes, but please don't take anything I post as a legal opinion. I don't have all the facts to properly provide an opinion and, more importantly, no one is paying me here for my opinion.

If that legal opinion goes the right way, some people might pay you with rep points. They are priceless.

 

[Canuck]

The MVPA does not mention power and neither does the legally required Monroney sticker, so I don't think horsepower is a contractual issue. It is purely an advertising issue.

I'm not clear about what you are saying here. If hp is not a contractual issue, then you can't alleged that Tesla breached the contract (oral or written). I agree with that but I'm not sure that's what you meant.

I think you are saying "hp is not in the contract, so you can argue this in court". If that's your position, it seems to me that the point is, if the parol evidence rule applies, you can't bring anything other than what is in the contract to the attention of the Court. (Well, you can bring it to the Court's attention but it can't be given any weight.) So what was said about hp is a non-issue since the document the purchaser signed states "Prior agreements, oral statements, negotiations, communications or representations about the Vehicle sold under this Agreement are superseded by this Agreement. Terms relating to the purchase not expressly contained herein are not binding."

If that legal opinion goes the right way, some people might pay you with rep points. They are priceless.

Ha! Where's the point's store where we can exchange our points for free gifts and travel?

 

[woof]

Ha! Where's the point's store where we can exchange our points for free gifts and travel?

It's here (but they're out of ponies):
Reputation points? - Page 55

 

[stopcrazypp]

I'm not clear about what you are saying here. If hp is not a contractual issue, then you can't alleged that Tesla breached the contract (oral or written). I agree with that but I'm not sure that's what you meant.

I'm not a lawyer, but my impression is that this would not be a case where you are suing for breach of contract, but rather for false advertising and using a subsection of the local law related to this in order to claim civil damages.

For example, in California this section would apply:
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=bpc&group=17001-18000&file=17500-17509

This is as opposed to something like a missing option on your car that was specified in the purchase contract but missing on your car, where you would be bringing a suit for breach of contract.

 

[Andyw2100]

So what was said about hp is a non-issue since the document the purchaser signed states "Prior agreements, oral statements, negotiations, communications or representations about the Vehicle sold under this Agreement are superseded by this Agreement. Terms relating to the purchase not expressly contained herein are not binding."

Correct me if I'm wrong, (I'm sure you will), but my understanding of contract law is that if there are ambiguities, they are generally decided in favor of the party that did not draw up the contract.

In this case it sounds like Tesla left all specifics of the car out of the contract. Are you suggesting that they could have delivered a Model S with two wheels, not have been in violation of the contract, and thus not be taken to court over that, because the contract does not specify that a Model S is to have four wheels? If so, I would respectfully disagree with that assessment of the situation. I believe since Tesla drew up the contract, and since it is understood Model S cars have four wheels, if Tesla delivered one with just two wheels, they would be held responsible for doing so.

Similarly, the specs of the P85D were equally well known--published on the Tesla website--and thus I believe Tesla can be held responsible for delivering those as well, for the same reasons.

 

[vgrinshpun]

Correct me if I'm wrong, (I'm sure you will), but my understanding of contract law is that if there are ambiguities, they are generally decided in favor of the party that did not draw up the contract.

In this case it sounds like Tesla left all specifics of the car out of the contract. Are you suggesting that they could have delivered a Model S with two wheels, not have been in violation of the contract, and thus not be taken to court over that, because the contract does not specify that a Model S is to have four wheels? If so, I would respectfully disagree with that assessment of the situation. I believe since Tesla drew up the contract, and since it is understood Model S cars have four wheels, if Tesla delivered one with just two wheels, they would be held responsible for doing so.

Similarly, the specs of the P85D were equally well known--published on the Tesla website--and thus I believe Tesla can be held responsible for delivering those as well, for the same reasons.

Well, as was mentioned many times before, they did deliver specs that they advertised, namely a car with 691 motor hp and 0 to 60 mph acceleration time of 3.2s.

 

[Canuck]

I'm not a lawyer, but my impression is that this would not be a case where you are suing for breach of contract, but rather for false advertising and using a subsection of the local law related to this in order to claim civil damages.

For example, in California this section would apply:
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=bpc&group=17001-18000&file=17500-17509

This is as opposed to something like a missing option on your car that was specified in the purchase contract but missing on your car, where you would be bringing a suit for breach of contract.

Yes, the causes of action will be many: breach of contract, negligence, fraud, intentional misrepresentation or, in the alternative, innocent misrepresentation, breach of statute, etc. But Tesla will likely argue that the relationship is governed by contract, that the contract is the final agreement between the parties and is a complete integration as evidenced by the inclusion of a merger clause, which recites that the contract is, in fact, the whole agreement between the parties. So trying to be successful by pleading those other causes of action may be difficult. Of course, you can't use the parol evidence rule to shield you against fraud but it seems to me that there's just too much ambiguity here for the Court to find fraud or intentional misrepresentation. The parol evidence rule has exceptions so it's not always successful. But it gives the court an out in cases like these, and it also causes trial court judges to be concerned about being overturned on appeal if they don't invoke it when it has application.

Correct me if I'm wrong, (I'm sure you will), but my understanding of contract law is that if there are ambiguities, they are generally decided in favor of the party that did not draw up the contract.

Correct but where's the ambiguity? The contract seems very clear to me.

In this case it sounds like Tesla left all specifics of the car out of the contract.

Nope. They are under the "Vehicle Configuration" section of the contract.

Are you suggesting that they could have delivered a Model S with two wheels, not have been in violation of the contract, and thus not be taken to court over that, because the contract does not specify that a Model S is to have four wheels? If so, I would respectfully disagree with that assessment of the situation. I believe since Tesla drew up the contract, and since it is understood Model S cars have four wheels, if Tesla delivered one with just two wheels, they would be held responsible for doing so.

You can take any argument to an extreme to try to prove a point but judges tend to roll their eyes at you when you do that. If you only got two wheels then it is clearly fraud. Plus, my contract says this:

"Documentation. Your Motor Vehicle Purchase Agreement (the “Agreement”) consists of the following documents:
1. Vehicle Configuration: The Vehicle Configuration describes the vehicle that you have ordered and includes pricing of the vehicle (excluding taxes and official or governmental fees). The Vehicle Configuration may be updated from time to time, subject to the terms below.
2. Final Price Sheet: The Final Price Sheet will be provided to you as your delivery date nears. It will include final pricing based on your final Vehicle Configuration and will include taxes and official or governmental fees that you will be responsible for paying.
3. Terms & Conditions: These Terms & Conditions are effective as of the date you place your order and apply to this transaction."

My "Motor Vehicle Purchase Agreement - Vehicle Configuration" says, on the very first line: "Description - Model S". The last time I checked, a Model S has four wheels so it sounds like you have a good breach of contract case if you only got two and there's no need to worry about the parol evidence rule.

It's here (but they're out of ponies):
Reputation points? - Page 55

Damn, I missed out!

 

[vgrinshpun]

Recognized and accepted? If you're referring to R85, it's not even done:


"Thank you for your query about UN Regulation No. 85.
My understanding is that UN Regulation No. 85 (particularly Annex 6 dealing with the method for measuring net power and the maximum 30 minutes power of electric drive trains) is not clear enough at this stage to provide a clear answer to the question. The informal working group Electric Vehicles and the Environment (EVE) under the Working Party on Pollution and Energy (GRPE) is actually currently working on the proper determination of net power of new powertrain technologies such as hybrid electric and full electric vehicles."

Yet even if it wasn't, stating a motor's maximum capability is not a substitute for stating horsepower produced by the vehicle. When they were advertising 691 hp, nowhere did they state the actual horsepower so leaving that out would clearly and obviously mislead the consumer into believing 691 hp motor power is the actual horsepower produced the car as delivered.

The fact that there is a working group on the next revision of the standard does not mean that it is preliminary, not final. As I posted before, the Final version of the ECE R85, Rev.1 was issued final back in 2013. If what you are saying was true there would be very few Standards or Codes that ever had final status, just because there is a working group discussing next revision of the document.

Additionally, as you know, ICE R85 is a Regulation applicable to a vehicle, not an electric drivetrain sold loose, so yes, this Standard implies that the motor horsepower *is* the specification, and the only one that need to be specified for an EV, as this standard specifically excludes battery from testing of the drivetrain.

 

[Andyw2100]

Yes, the causes of action will be many: breach of contract, negligence, fraud, intentional misrepresentation or, in the alternative, innocent misrepresentation, breach of statute, etc. But Tesla will likely argue that the relationship is governed by contract, that the contract is the final agreement between the parties and is a complete integration as evidenced by the inclusion of a merger clause, which recites that the contract is, in fact, the whole agreement between the parties. So trying to be successful by pleading those other causes of action may be difficult. Of course, you can't use the parol evidence rule to shield you against fraud but it seems to me that there's just too much ambiguity here for the Court to find fraud or intentional misrepresentation. The parol evidence rule has exceptions so it's not always successful. But it gives the court an out in cases like these, and it also causes trial court judges to be concerned about being overturned on appeal if they don't invoke it when it has application.



Correct but where's the ambiguity? The contract is very clear. This is not a question of ambiguity.



Nope. They are under the "Vehicle Configuration" section of the contract.



You can take any argument to an extreme to try to prove a point but judges tend to roll their eyes at you when you do that. If you only got two wheels then it is clearly fraud. Plus, my contract says this:

"Documentation. Your Motor Vehicle Purchase Agreement (the “Agreement”) consists of the following documents:
1. Vehicle Configuration: The Vehicle Configuration describes the vehicle that you have ordered and includes pricing of the vehicle (excluding taxes and official or governmental fees). The Vehicle Configuration may be updated from time to time, subject to the terms below.
2. Final Price Sheet: The Final Price Sheet will be provided to you as your delivery date nears. It will include final pricing based on your final Vehicle Configuration and will include taxes and official or governmental fees that you will be responsible for paying.
3. Terms & Conditions: These Terms & Conditions are effective as of the date you place your order and apply to this transaction."

My "Motor Vehicle Purchase Agreement - Vehicle Configuration" says, on the very first line: "Description - Model S". The last time I checked, a Model S has four wheels so it sounds like you have a good breach of contract case if you only got two and there's no need to worry about the parol evidence rule.

But I think you just supported my point.

The same part of the agreement that says "Vehicle Configuration and Description - Model S" that allows for it to be understood that a Model S has four wheels, would need the description of the Model S from the website for anyone to know the complete specifications of the Model S. Anything left out of that section that is part of the car, that should not be left out of the contract arbitrarily, I would think would be considered an ambiguity. In other words, if the car is not completely described, that is ambiguous, and thus Tesla would be held responsible for the ambiguity.