Consumer Law Outline Chapter One – I. DTPA A. Proper Party Plaintiff – Consumer 1. an individual, partnership, corp, this state, or subdivision or agency of this state, who seeks to acquire by purchase or lease any goods or services, except does not include business consumer with assets > $25 million or owned by one who does – 17.45(5) . 2. Buyer may purchase on behalf of someone else – see below B3. B. Seek or Acquire 1. Martin v. Lou Poliquin – DTPA does not require transfer of consideration. Only have to seek to purchase with good faith intent and capacity to do so. 2 prong test. 2. Good Faith – honesty in fact and reasonable commercial standards – both subjective and objective. 3. No requirement of a contractual relationship or payment (but item sought must be the subject of the complaint). 4. For Benefit of Another – the good may be acquired by someone else and given to the intended user. Test – whether the objective of the transaction was to benefit the individual claiming consumer status – ex, father buys bat for son; company buys tool for employee. a. Must show person claiming consumer status is the intended beneficiary. b. Mere incidental beneficiaries don’t count. Ex, passenger in car, neighbor who borrows a tool. c. Case law below – Wellborn . 5. Holeman v. Landmark Chevrolet – reasonableness of buyer’s intentions go to good faith – if seller contests consumer status, buyer must demonstrate good faith intent and capacity. Page 1 of 27
C. Purchase or Lease 1. Kennedy v. Sale – privity is not required; establish status in relation to a transaction, not the contractual relation with defendant. 2. Comment – no requirement consumer be the person paying. Time share sale pitch offering “free tv” in exchange for sitting through presentation. 3. Wellborn v. Sears – for benefit of another – garage door purchased to keep family safe, closes on and kills child. The child is a consumer and did “acquire” the door. 4. Exxon v. Dunn – good or service sought must form the basis of the complaint – sought battery recharge, unconnected air conditioning problem attempted fix for free was not a consumer for air repair – did not seek it, sought the battery recharge. 5. Notes – agent/employee may make purchase on behalf of company/principal and c/p will be a consumer. 6. Problem 2 – buying self-serve gas, attendant offers to check oil – part of the purchase therefore, are consumer in relation to oil check. D. Goods or Services 1. Goods – 17.45 – tangible chattels or real property puchased or leased for use. 2. Services – 17.45(2) – work, labor, or service purchased or leased for use, including services in connection with the sale or repair of goods. 3.
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