Difference between revisions of "Miscellaneous Consumer Protection Legal Information (11:VIII)"
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== A. Circumvention of Disclaimer Clauses == | == A. Circumvention of Disclaimer Clauses == | ||
Vendors may try to protect themselves from liability arising from oral representations made to a buyer by inserting an exclusion clause into the written contract. Exclusion clauses attempt to invalidate any representations or warranties other than those explicitly mentioned in the written contract. Exclusion clauses can also seek to exclude statutory conditions and warranties, or they can attempt to limit the buyer’s default rights. There can be a variety of ways to get around such clauses. | Vendors may try to protect themselves from liability arising from oral representations made to a buyer by inserting an exclusion clause into the written contract. Exclusion clauses attempt to invalidate any representations or warranties other than those explicitly mentioned in the written contract. Exclusion clauses can also seek to exclude statutory conditions and warranties, or they can attempt to limit the buyer’s default rights. There can be a variety of ways to get around such clauses. | ||
=== 1. Statutory Relief === | === 1. Statutory Relief === | ||
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==== a) Retail Sales of Goods ==== | ==== a) Retail Sales of Goods ==== | ||
''SGA'' | Under s 20(2) of the ''SGA'', in the case of a retail sale of new goods to a consumer, any term of a contract that purports to negate or in any way diminish the statutory conditions or warranties in ss 17 – 19 of the ''SGA'' is void. | ||
==== b) Deceptive Act or Practice ==== | ==== b) Deceptive Act or Practice ==== | ||
Where a supplier makes oral representations to a consumer, but terms in the contract deny or negate such representations, the vendor may have | Where a supplier makes oral representations to a consumer, but terms in the contract deny or negate such representations, the vendor may have engaged in a deceptive act or practice under the ''BPCPA''. | ||
==== c) Consumer Transactions Generally ==== | ==== c) Consumer Transactions Generally ==== | ||
In consumer transactions involving a commercial supplier, the purchaser may invoke s 187 of the ''BPCPA'', which makes oral or extrinsic evidence admissible for determining the understanding of the parties. | In consumer transactions involving a commercial supplier, the purchaser may invoke s 187 of the ''BPCPA'', which makes oral or extrinsic evidence admissible for determining the understanding of the parties. | ||
=== 2. Common Law Relief === | === 2. Common Law Relief === | ||
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==== a) Clause Deemed Not to Be Part of Contract ==== | ==== a) Clause Deemed Not to Be Part of Contract ==== | ||
To rely on an exclusion clause, the seller must show that it is part of the contract. However, the court may find that the clause does not | To rely on an exclusion clause, the seller must show that it is part of the contract. However, the court may find that the clause does not form part of the contract where, for example, it is insufficiently legible, or where it was inserted after the agreement was concluded. In [https://www.bailii.org/ew/cases/EWCA/Civ/1970/2.html ''Thornton v Shoe Lane Parking Ltd.'', [1971<nowiki>]</nowiki> 2 QB 163], the exclusion clause was written on signs inside the parking lot and was found to not have been incorporated into the contract, as the contract was concluded when the parking ticket was given by the machine at the entrance to the parking lot. | ||
==== b) Misrepresentation as to the Clause’s Legal Effect ==== | ==== b) Misrepresentation as to the Clause’s Legal Effect ==== | ||
When the seller | When the seller misrepresents the legal effect of a disclaimer clause, a court may be willing to render the clause inoperative. Traditionally, however, courts would not invalidate a clause based on a misrepresentation of law, as opposed to fact. | ||
==== c) Strict Interpretation of Clause ==== | ==== c) Strict Interpretation of Clause ==== | ||
Disclaimer clauses are strictly construed against the party seeking to rely on them. Anything not explicitly found in the clause will not be read into it. | Disclaimer clauses are strictly construed against the party seeking to rely on them. Anything not explicitly found in the clause will not be read into it. | ||
==== d) Collateral Contract ==== | ==== d) Collateral Contract ==== | ||
The court may find that where a clause excludes oral representations, an oral representation made by the seller actually constitutes a | The court may find that where a clause excludes oral representations, an oral representation made by the seller actually constitutes a collateral (or parallel) contract. However, for a court to find there is a collateral contract, the collateral contract must also have all the elements of an enforceable contract (e.g. offer, acceptance, consideration, etc.) | ||
==== e) Inadequate Notice ==== | ==== e) Inadequate Notice ==== | ||
Some disclaimer clauses are hidden in the “boilerplate” fine print of the contract and have been held not binding for this reason, if they are particularly onerous and attention was not drawn to them ( | Some disclaimer clauses are hidden in the “boilerplate” fine print of the contract and have been held not binding for this reason, if they are particularly onerous and attention was not drawn to them ([https://www.canlii.org/en/on/onca/doc/1978/1978canlii1446/1978canlii1446.html?autocompleteStr=Tilden%20Rent-A-Car%20&autocompletePos=1 ''Tilden Rent-A-Car Co v Clendenning'' (1978), 18 OR (2d) 601, 83 DLR (3d) 400 (Ont CA)]). | ||
== B. Consumers’ Rights against Creditors and Debt Collection Agencies == | == B. Consumers’ Rights against Creditors and Debt Collection Agencies == | ||