Consumer Law Flashcards
Consumer Status
Under the DTPA, a consumer is one who seeks or acquires by purchase or lease a good or a service. A good includes all tangible things.
17.46(b) (5) and (7)
Under the DTPA, a consumer may maintain an action for the use of a false, misleading or deceptive act that is specifically enumerated in section 17.46(b) of the DTPA (“laundry list”) and is relied on by a consumer to her detriment that causes economic damages or damages for mental anguish. To violate subsections (5) or (7), the defendant must make a statement of fact (not mere opinion) regarding goods and services that is inaccurate or false.
Breach an Express or Implied Warranty
Under the DTPA, a consumer may maintain an action for breach of an express or implied warranty that causes economic damages or damages for mental anguish. The implied warranty of merchantability is created when a merchant provides that a product is fit for use upon its sale. The implied warranty of fitness for a particular use is created when a person tells the merchant they are buying the good for a specific purpose and the merchant warrants the good is fit for that particular purpose. Implied warranties may be waived or disclaimed by an “as is” clause, however, express warranties may not be waived and are not affected by an inconsistent “as is” clause.
Unconscionability
Under the DTPA, a consumer may bring a cause of action for any unconscionable action. Unconscionability is defined as “an act or practice which, to the consumer’s detriment, takes advantage of the lack of knowledge, ability, experience, or capacity to a grossly unfair degree. Gross is defined as glaringly noticeable, flagrant, and unmitigated.
Producing Cause
Under the DTPA, a consumer must show that the defendant’s conduct was the producing cause of economic damages or damages for mental anguish.
Damages
Economic damages may be recovered to compensate for pecuniary loss. The consumer may also recover damages for mental anguish where it can be shown the defendant acted knowingly. Additional damages may be recovered when the defendant has acted knowingly or intentionally. For knowing conduct, the consumer may be awarded up to three times economic damages. For intentional conduct, the award may be up to three times both economic damages and damages for mental anguish.
Knowing Conduct for MA
Actual awareness that what the defendant is doing is false, deceptive, or misleading, unfair or a breach of warranty.
17.46(b) (12)
Subsection (12) is violated when the seller of goods or services misrepresents the nature of the agreement or the rights and remedies available. Mere breach of contract is not a violation.
17.46(b) (24)
Violation of subsection (24) requires (i) knowledge by D of information regarding goods or services; (ii) nondisclosure of this information; (iii) intent to induce the consumer to enter into the transaction; and (iv) causation.
