COML WK10 L19-20 Consumer Law - Consumer Guarantees Act Flashcards
What is the purpose of the Consumer Guarantee Act (CGA)?
The purpose of the CGA is to protect consumers by allowing you to seek repairs, replacements, or refunds when goods are faulty, and setting minimum guarantees for all products and services.
What are the two requirements for the CGA to apply?
The CGA applies when;
1. The goods or services are supplied in trade; and
2. The person acquiring the goods or services is a consumer within the definitions of consumer in s2(1)
What is the definition of trade?
Trade means any trade, business, industry, profession, occupation, activity of commerce, or undertaking relating to the supply or acquisition of goods or services.
Does not include private transactions.
What is the definition of acquire in relation to goods and in relation to services?
Acquire, in relation to goods, means obtain by way of gift, purchase, or exchange; and also means take on lease, hire, or hire purchase
In relation to services, includes accept.
What is the definition of a consumer?
Consumer means a person who;
1. Acquires goods or services of a kind ordinarily acquired for private use or consumption from a supplier; and
2. Does not acquire the goods or services for the purpose of
a. resupplying them in trade; or
b. consuming them in the course of a process of manufacture
What does ordinarily acquired for private use or consumption mean?
Ordinarily acquired for private use or consumption does not mean that the predominant use of the good or service must be private use, but that private use must be at the least a normal/accepted use of the good or service. It is a matter of regular occurence.
Can the CGA be contracted out of?
Contracting out of the CGA is generally prohibited. However, there is an exception.
What are the four requirements for contracting out of the CGA?
To contract out of the CGA;
1. The goods or services must be acquired in trade
2. The agreement must be in writing
3. All parties must be in trade and agree to contract out
4. It must be fair and reasonable to do so taking into account all of the circumstances surrounding the agreement
What are the four factors that are taken into consideration when determining whether contracting out of the CGA is fair and reasonable?
- The subject matter
- The value
- The respective bargaining powers
- Whether the partes are being represented by lawyers
What does s6 of the CGA state?
- Guarantee as to acceptable quality
Where goods are supplied to a consumer there is a guarantee that the goods are of acceptable quality
What section of the CGA guarantees acceptable quality?
s6
What does s7 of the CGA state?
For the purposes of section 6, goods are of acceptable quality if they are as-
1. Acceptable for all the purposes for which goods are of the type in question are commonly supplied; and
2. Acceptable in appearance and finish; and
3. Free from minor defects;
4. Safe; and
5. Durable
as a reasonable consumer fully acquanted with the state and condition of the goods, including any hidden defects, would regard as acceptable, having regard to;
1. the nature of the goods
2. the price (where relavant);
3. any statements made about the goods on any packaging or label on the goods;
4. the nature of the supplier and the contect in which the supplier supplies the goods;
5. any representation made about the goods by the supplier or the manufacturer;
6. all other relevant circumstances of the supply of the goods
What are the remedies available where failure can be remedied?
s18(2)
Where the failure can be remedied, the consumer may-
1. require the supplier to remedy the failure within a reasonable time
2. where a supplier who has been required to remedy a failure refuses or neglects to do so, or does not succeed in doing so within a reasonable time,-
a. have the failure remedied elsewhere and obtain from the supplier all reasonable costs incurred in having the failure remedied; or
b. reject the goods
What are the remedies available where the failure cannot be remedied or is of a substantial nature?
s18(3)
Where the failure cannot be remedied or is of a substantial character, the consumer may-
1. reject the goods
2. obtain from the supplier damages in compensation for any reduction in value of the goods below the price paid or payable by the consumer for the goods
When is a failure considered of a substantial character?
s21 Failure of substantial character
A failure to comply with a guarantee is of a substantial character in any case where-
1. the goods would not have been acquired by a reasonable consumer fully acquanted with the nature and extent of the failure
2. the goods depart in one or more significant respects from the description
3. the goods are substantially unfit for purpose
4. the goods are unsafe
